Marion v. Cendol , 2013 Ohio 3197 ( 2013 )

[Cite as Marion v. Cendol, 2013-Ohio-3197.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
CITY OF MARION,
PLAINTIFF-APPELLEE, CASE NO. 9-12-59
v.
ROBERT J. CENDOL, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion Municipal Court
Trial Court No. CRB 12 231
Judgment Affirmed
Date of Decision: July 22, 2013
APPEARANCES:
Scott A. Winckowski for Appellant
Steven E. Chaffin for Appellee
Case No. 9-12-59
PRESTON, P.J.
{¶1} Defendant-appellant, Robert J. Cendol, appeals the Marion Municipal
Court’s October 3, 2012 judgment entry approving and adopting the magistrate’s
decision finding that the City of Marion (“City”) proved beyond a reasonable
doubt that Cendol committed the offense of “failure to comply with safety director
specifications/regulations as to demolition permit” in violation of Marion
Structure and Safety Code 1381.99 and recommending that the trial court impose a
fine of $100.00.1 Cendol argues that the evidence adduced at trial was insufficient
to prove that he was the “owner” or “duly constituted agent” of the owner of the
property, as those terms are found in Marion Structure and Safety Code 1381.01,
and that he cannot be prosecuted for failing to comply with the demolition permit
because it was invalid. For the reasons that follow, we affirm.
{¶2} On February 2, 2012, the City’s Zoning Inspector filed a complaint in
the Marion Municipal Court against Cendol, alleging that Cendol violated Marion
Structure and Safety Code 1381.99 by “fail[ing] to comply with Safety Director
specifications and/or regulations as to demolition of 333 Joseph St., permit
#0675.” (Doc. No. 1). Cendol entered a plea of not guilty on March 19, 2012.
1
In his notice of appeal, Cendol says he is appealing the “Magistrate’s Decision of September 17, 2012.”
(Emphasis sic.) (Doc. No. 32). Magistrate’s decisions are not final appealable orders. State v. Pennington,
187 Ohio App.3d 526, 2010-Ohio-2139, ¶ 14-16 (2d Dist.). However, Cendol attached to his notice of
appeal the October 3, 2012 judgment entry in which the trial court approved and adopted the magistrate’s
September 17, 2012 decision. (Doc. No. 32). That judgment entry constituted a final appealable order, and
this Court has jurisdiction over this case notwithstanding Cendol’s misstatement in his notice of appeal.
See Pennington, 2010-Ohio-2139, at ¶ 16.
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(Doc. No. 6). On July 26, 2012, the case proceeded to a bench trial before a
magistrate. (July 26, 2012 Tr. at 1); (Doc. No. 25).
{¶3} On September 17, 2012, the magistrate held a disposition hearing and
issued his decision finding that the City proved beyond a reasonable doubt that
Cendol committed the offense of “failure to comply with safety director
specifications/regulations as to demolition permit” and recommending that the
trial court impose a fine of $100.00. (Sept. 17, 2012 Tr. at 1, 5, 7); (Doc. No. 25).
The trial court issued its judgment entry on October 3, 2012, approving and
adopting the magistrate’s decision as the order of the trial court. (Doc. No. 25).
{¶4} Cendol filed his notice of appeal on October 16, 2012. (Doc. No. 32).
He raises two assignments of error for our review, which we will address together.
Assignment of Error No. I
The Marion Municipal Court committed error by finding
Appellant, Robert J. Cendol, was the property owner or their [sic]
duly constituted agent. (Emphasis sic.)
Assignment of Error No. II
The Marion Municipal Court committed error by failing to
grant the Motion for Acquittal, Rule 29, at the close of the City’s
case.
{¶5} In his first assignment of error, Cendol argues that under Marion
Structure and Safety Code 1381.01, the City can issue demolition permits only to
the “owner” or a “duly constituted agent” of the owner of the property to be
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demolished, and that the evidence at trial was insufficient to prove that Cendol
was either the “owner” or the owner’s “duly constituted agent.” In his second
assignment of error, Cendol argues that the trial court erred by denying his
Crim.R. 29 motion for acquittal at the close of the City’s case because the
demolition permit had no expiration date and was invalid, the City’s Zoning
Inspector failed to identify Cendol at trial and to affirmatively testify that Cendol
was given a copy of the permit requirements, the City failed to give notice of
violations prior to filing the complaint, and the City failed to prove that Cendol
had authority to act for the owner of the property.
{¶6} As an initial matter, we note that Cendol failed to file objections to the
magistrate’s September 17, 2012 decision. Under Crim.R. 19, a defendant’s
failure to object to a magistrate’s decision amounts to a waiver of all but a claim of
plain error on appeal:
Except for a claim of plain error, a party shall not assign on appeal
the court’s adoption of any factual finding or legal conclusion,
whether or not specifically designated as a finding of fact or
conclusion of law under Crim. R. 19(D)(3)(a)(ii), unless the party
has objected to that finding or conclusion as required by Crim. R.
19(D)(3)(b). Crim.R. 19(D)(3)(b)(iv).
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Because Cendol failed to object to the magistrate’s decision, he waived all but a
claim of plain error on appeal. Id. Furthermore, because he has failed to argue
plain error before this Court, we need not consider his arguments. See id. See
also State v. Shie, 12th Dist. Butler No. CA2007-02-038, 2008-Ohio-350, ¶ 45.
Nevertheless, “this Court has recognized that a conviction based upon insufficient
evidence almost always amounts to plain error because ‘a conviction based on
legally insufficient evidence constitutes a denial of due process.’” State v. Elliot,
3d Dist. Seneca No. 13-12-43, 2013-Ohio-2386, ¶ 17, quoting State v. Alvarado,
3d Dist. Putnam No. 12-07-14, 2008-Ohio-4411, ¶ 24. Because Cendol argues in
his assignments of error that the evidence was insufficient to convict him, we, in
the interests of justice, elect to address his arguments.
{¶7} We first address Cendol’s second assignment of error challenging the
trial court’s denial of his Crim.R. 29 motion for acquittal. Crim.R. 29(A)
provides, in relevant part:
The court on motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of a judgment
of acquittal of one or more offenses charged in the indictment,
information, or complaint, if the evidence is insufficient to sustain a
conviction for such offense or offenses.
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“Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different
conclusions as to whether each material element of a crime has been proved
beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261 (1978),
syllabus. “The Bridgeman standard ‘must be viewed in light of the sufficiency of
evidence test[.]’” State v. Hansen, 3d Dist. Seneca No. 13-12-42, 2013-Ohio-
1735, ¶ 35, quoting State v. Foster, 3d Dist. Seneca No. 13-97-09, *2 (Sept. 17,
1997). When reviewing the sufficiency of the evidence, “[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1981),
paragraph two of the syllabus, superseded by state constitutional amendment on
other grounds in State v. Smith, 80 Ohio St.3d 89 (1997).
{¶8} In support of his second assignment of error, Cendol offers five, one-
sentence arguments, none of which are supported by citations to authority or the
record. “It is the duty of the appellant, not this court, to demonstrate [his] assigned
error through an argument that is supported by citations to legal authority and facts
in the record.” State v. Linzy, 5th Dist. Richland No. 2012-CA-33, 2013-Ohio-
1129, ¶ 33, quoting State v. Taylor, 9th Dist. Medina No. 2783-M, *3 (Feb. 9,
1999) and citing App.R. 16(A)(7) (internal quotation marks omitted). “It is not the
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function of this court to construct a foundation for [an appellant’s] claims; failure
to comply with the rules governing practice in the appellate courts is a tactic which
is ordinarily fatal.” Id., quoting Kremer v. Cox, 114 Ohio App.3d 41, 60 (9th
Dist.1996) (internal quotation marks omitted). See also Pahl v. Haugh, 3d Dist.
Hancock No. 5-10-27, 2011-Ohio-1302, ¶ 27 (“[W]e note that pursuant to App.R.
16(A)(7) we are not required to address arguments that have not been sufficiently
presented for review or supported by proper authority. * * * [I]t is well within our
authority to disregard [the deficient] assignment of error. See App.R. 12(A)(2).”).
Nevertheless, in the interests of justice, we elect to address Cendol’s arguments.
{¶9} Cendol offers three legal arguments that challenge the validity of the
underlying demolition permit and the City’s ability to charge him with violating it.
He argues that because the demolition permit had no expiration date, it was
invalid. We disagree. The demolition permit was “ISSUED TO” Cendol on April
19, 2010 for demolition at address “333 Joseph Street.” (P’s Trial Ex. A, Doc. No.
19).2 The “PARCEL NO.” and “EXPIRE DATE” lines on the demolition permit
are blank. (Id.). Otherwise, the City filled in all of the spaces on the demolition
permit, and the permit informed Cendol that “[t]he issuance of this Permit does not
allow the violation of CITY OF MARION Zoning Ordinances or other governing
Regulations.” (Id.). Cendol cites no authority, and we have found none,
2
The copy of the permit that was introduced and admitted into evidence at trial includes the Zoning
Inspector’s handwritten notes. (See P’s Trial Ex. A, Doc. No. 19). The parties agreed that the handwritten
notes were not present on the permit as originally issued to Cendol. (July 26, 2012 Tr. at 51).
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suggesting that the omission of an expiration date in a permit renders it invalid,
such that the permit holder cannot be charged with violating it. Thus, while the
City could be more diligent and precise in the permitting process, we hold that the
omission of an expiration date in the demolition permit did not render it invalid.
See Bd. of Twp. Trustees v. Spring Creek Gravel Co., Inc., 45 Ohio App.2d 288,
290-291 (2d Dist.1975), citing Ratcliff v. Teters, 27 Ohio St. 66 (1875) (“The
Supreme Court of Ohio has said that the granting of a permit is ‘only a ministerial
act’ and the mere delay of the clerk in recording such grant does not invalidate
it.”).
{¶10} Cendol also argues that the Zoning Inspector “failed to affirmatively
testify that [Cendol] was given a copy of any requirements of the permit[.]”
(Appellant’s Brief at 7). Marion Structure and Safety Code 1381.02, titled
“SPECIFICATIONS AND REGULATIONS,” requires that the City
Safety/Service Director establish demolition specifications and regulations and
make them available to permittees:
The Safety/Service Director shall establish the specifications and
regulations for the manner in which buildings are to be demolished
in the municipality, which shall be kept on file in the Safety/Service
Director’s office and made available to permittees.
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The Code section requires only that the Safety/Service Director keep the
established specifications and regulations on file and make them available to
permittees. Cendol does not argue that the specifications and regulations were not
available, only that he was not given a copy of them. However, Section 1381.02
does not require that the Safety/Service Director give a copy of the specifications
and regulations to permittees. Accordingly, we reject as legally irrelevant
Cendol’s argument that the City’s Zoning Inspector failed to testify that Cendol
was given a copy of any requirements of the permit. See State v. Parker, 68 Ohio
St.3d 283, 286 (1994) (“[I]t is well settled that one is presumed to know the law *
* *.”).
{¶11} Cendol argues that the City “failed to give notice of violations to
[Cendol] prior to issuing the Citation to [Cendol].” (Appellant’s Brief at 7). He
cites no authority that requires the City to give a demolition permittee notice of
violations before citing the permittee; however, Cendol did attach to his brief
Marion Structure and Safety Code Chapter 1177, titled “ZONING PERMITS.”
Chapter 1177 of the Code does not apply in this case because it governs the
issuance of zoning permits, not demolition permits such as the one issued to
Cendol. This argument, therefore, lacks merit.
{¶12} Cendol’s two remaining one-sentence arguments in support of his
second assignment of error challenging the trial court’s denial of his motion for
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acquittal address the evidence presented at trial and its alleged insufficiency to
prove that Cendol was a “duly constituted agent” under Marion Structure and
Safety Code 1381.01. We will, therefore, address those two one-sentence
arguments with Cendol’s first assignment of error challenging the sufficiency of
the evidence as to Cendol’s status as the “owner” or a “duly constituted agent” of
the owner under Marion Structure and Safety Code 1381.01.
{¶13} The standard of review applicable Cendol’s first assignment of error
is similar to the one applicable to his second assignment of error. “An appellate
court’s function when reviewing the sufficiency of the evidence to support a
criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.” Jenks, 61 Ohio St.3d 259,
paragraph two of the syllabus. Accordingly, “[t]he relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” Id.{¶14} Marion Structure and Safety Code 1381.01(A) authorizes the City’s
Safety/Service Director “to issue demolition permits to property owners or their
duly constituted agents for buildings and structures located within the
municipality.” Marion Administrative Code 101.02 defines terms used in the
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City’s ordinances, including the Marion Structure and Safety Code. Section
101.02(I) defines “owner” as: “When applied to property, includes any part
owner, joint owner or tenant in common of the whole or part of such property.”
The City does not dispute that Cendol is not the “owner” of 333 Joseph Street.
Rather, the City argues that Cendol was an “apparent agent” of the property owner
and, therefore, a “duly constituted agent” under Marion Structure and Safety Code
1381.01(A).
{¶15} The City’s ordinances do not define “agent” or “duly constituted
agent.” We, therefore, must determine whether the language of the ordinance is
ambiguous, and if it is not, apply the clear meaning of the words used. State v.
Smith, 6th Dist. Williams No. WM-08-016, 2009-Ohio-2292, ¶ 20, citing Roxane
Laboratories, Inc. v. Tracy, 75 Ohio St.3d 125, 127 (1994). See also City of
Columbiana v. J & J Car Wash, Inc., 7th Dist. Columbiana No. 04 CO 20, 2005-
Ohio-1336, ¶ 32 (“The same rules for reviewing a statute apply when reviewing an
ordinance.”). “In addition, words and phrases shall be read in context and
construed according to the rules of grammar and common usage.” Smith, 2009-
Ohio-2292, at ¶ 20, citing R.C. 1.42. Here, we conclude that the use of the term
“duly constituted agent” is not ambiguous, and we apply its clear meaning.
{¶16} Black’s Law Dictionary defines “duly” as: “[i]n a proper manner; in
accordance with legal requirements.” Black’s Law Dictionary 576 (9th Ed.2009).
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The word “constitute” has multiple meanings, but read in context and construed
according to the rules of grammar and common usage, the word “constituted,” as
used in the City’s ordinance, means: “to appoint to an office, function, or
dignity,” or “to make (a person or thing) something.” Webster’s Third New
International Dictionary 486 (2002). Black’s Law Dictionary defines “agent” as:
“[o]ne who is authorized to act for or in place of another; a representative.”
Black’s Law Dictionary 72 (9th Ed.2009). See also John Hancock Mut. Life Ins.
Co. v. Luzio, 123 Ohio St. 616 (1931), syllabus (“In the absence of statutory
definition, the term ‘agent,’ employed in section 9391, General Code, should be
given its legal meaning, as being one who is acting within the scope of his
authority in the business intrusted [sic] to him by his principal.”). Therefore, a
“duly constituted agent” of an owner of property to be demolished, as used in
Marion Structure and Safety Code 1381.01(A), means a person who is authorized
to act for or in place of the owner, who the owner appointed to that position, and
whose appointment has legal effect.
{¶17} In this case, viewing the evidence in a light most favorable to the
City, any rational trier of fact could have found that the City proved beyond a
reasonable doubt that Cendol was the property owner’s “duly constituted agent”
and, therefore, the permittee subject to punishment under Marion Structure and
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Safety Code 1381.99.3 The record reflects that 333 Joseph, LLC was the owner of
the property to be demolished. (D’s Trial Ex. 1, Doc. No. 21); (July 26, 2012 Tr.
at 18). A limited liability company acts only through its officers, members, or
agents. Cleveland Bar Assn. v. Pearlman, 106 Ohio St.3d 136, 2005-Ohio-4107, ¶
36 (O’Donnell, J., dissenting). See also Orrenmaa v. CTI Audio, Inc., 11th Dist.
Ashtabula No. 2007-A-0088, 2008-Ohio-4299, ¶ 110 (citations omitted). Stanley
Rosenfeld, Cendol’s uncle, owned and was the principal of 333 Joseph, LLC.
(July 26, 2012 Tr. at 18). (See also D’s Trial Ex. 1, Doc. No. 21) (a copy of the
demolition permit application, signed by Rosenfeld on the “OWNER OR
CONTRACTOR SIGNATURE” line).
{¶18} We next turn to whether a rational trier of fact could have found that
the City proved beyond a reasonable doubt that Rosenfeld appointed Cendol to act
for him or in his place. Cendol testified that Rosenfeld authorized him to act on
Rosenfeld’s behalf in obtaining the permit and working on the demolition project
at 333 Joseph Street:
[City’s Counsel:] During the time that you obtained this permit
and worked with this project, were you doing this as a family favor?
[Cendol:] I would just help [Rosenfeld] out when I needed to,
yes.
3
Marion Structure and Safety Code 1381.99 provides, in relevant part: “Whoever violates any provision of
this chapter is guilty of a minor misdemeanor on a first offense which is punishable by a fine of not more
than $100.”
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[City’s Counsel:] Is that an accurate description as you were
doing favors for [Rosenfeld]?
[Cendol:] I guess you could say that, yes.
***
[Cendol:] * * * And I would talk to Mr. Rosenfeld and ask him,
you know, if there is anything that he needed me to do, and I
would—if there was something I could take care of, I would.
(July 26, 2012 Tr. at 63-64).
In addition to this testimony, the record reflects that, at the direction of Rosenfeld,
Cendol submitted the demolition permit application to the City’s Zoning
Department. (July 26, 2012 Tr. at 13-14, 63-64). The City issued the demolition
permit to Cendol by putting “Rob Cendol” in the “ISSUED TO” line on the
demolition permit. (P’s Trial Ex. A, Doc. No. 19); (July 26, 2012 Tr. at 15, 19,
65-66). Cendol never objected to the permit being issued in his name. (July 26,
2012 Tr. at 15, 63-64).
{¶19} After the City issued the demolition permit to Cendol, the City’s
Director of Public Safety had “several conversations,” including at least one in-
person meeting, with Cendol regarding the demolition project at 333 Joseph
Street. (July 26, 2012 Tr. at 38-39, 47). According to the Director of Public
Safety, Cendol “indicated that [Cendol] was in charge of the demolition of the
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property.” (July 26, 2012 Tr. at 39). Finally, contrary to Cendol’s one-sentence
argument that the City “failed to identify [Cendol] as the person that was issued
the permit and was in the courtroom,” the Director of Public Safety identified
Cendol for the record at trial. (Appellant’s Brief at 7); (July 26, 2012 Tr. at 38-
39). Based on the foregoing evidence, a rational trier of fact could have found that
Cendol was a “duly constituted agent” of 333 Joseph, LLC, and that the
demolition permit in this case was properly issued to him.
{¶20} Having concluded that the evidence was sufficient to prove that the
demolition permit was properly issued to Cendol, it follows that Cendol was
subject to prosecution for violations of the demolition permit and the City’s
demolition specifications and regulations. Marion Structure and Safety Code
1381.02, 1381.99. Cendol does not argue that the demolition permit was not
violated in this case, by him or anyone else. In fact, the Director of Public Safety
testified to conditions of the property and demolition that amounted to violations
of the City’s demolition specifications and regulations. (July 26, 2012 Tr. at 35-
37); (P’s Trial Ex. B, Doc. No. 20) (a copy of the City’s demolition specifications
and regulations).
{¶21} We hold that the evidence was sufficient in this case and that the trial
court properly denied Cendol’s Crim.R. 29 motion for acquittal. After viewing the
evidence in a light most favorable to the City, a rational trier of fact could have
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found the essential elements of the crime proven beyond a reasonable doubt—
namely, that Cendol was a “duly constituted agent” of the property owner, that the
City properly issued the demolition permit in his name, and that he was subject to
prosecution for violations of the demolition permit and the City’s demolition
specifications and regulations.
{¶22} Cendol’s first and second assignments of error are, therefore,
overruled.
{¶23} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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