Thomas v. City of Cleveland , 176 Ohio App. 3d 401 ( 2008 )

{¶ 30} I respectfully dissent. I would affirm the denial of attorney fees under Section 1988.

{¶ 31} To impose Section 1983 liability on a governmental entity, it must be shown that a policy or custom of the governmental entity was the moving force behind the constitutional violation. Polk Cty. v. Dodson (1981),454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509. Appellants sought an order declaring that R.C. 2933.43 and the city's policy and practice for implementing the statute violate the Due Process Clause. The trial court never made any such finding. As the majority correctly notes, the trial court found the statute constitutional, but the city's application was unlawful in connection with appellants' cases only. This critical finding does not render appellants prevailing parties, vindicating their civil rights, or establishing a policy and practice by the city.

{¶ 32} Another basis for affirming the denial of attorney fees under Section 1988 is our earlier finding inThomas v. Cleveland (2000), 140 Ohio App.3d 136, 148,746 N.E.2d 1130, that appellants failed to file a replevin action or seek legal advice to secure the return of their vehicles. Because the trial court provided no reasons for its decision to deny attorney fees, I would consider this court's earlier finding as establishing special circumstances justifying the denial of attorney fees. As the majority stated, a prevailing party should be allowed attorney fees unless special circumstances would render awarding fees unjust. Here, appellants' failure to assert their legal rights in a timely manner renders an award unjust.