Cincinnati v. Twang, L.L.C.

[Cite as Cincinnati v. Twang, L.L.C., 2021-Ohio-4387.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CITY OF CINCINNATI, : APPEAL NO. C-200369
TRIAL NO. A-1803297
Plaintiff-Appellee, :
vs. : O P I N I O N.
TWANG, LLC, :
Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 15, 2021
Andrew Garth, City Solicitor, Jonathan Roach and Jacklyn Gonzales Martin,
Assistant City Solicitors, for Plaintiff-Appellee,
Statman, Harris & Eyrich, LLC, and William B. Fecher, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Appellant Twang, LLC, brings this appeal from several orders issued by the
trial court in a lawsuit initiated by appellee the city of Cincinnati that relates to a property
Twang owns but has failed to adequately maintain. In part, Twang challenges a judgment
of $25,212 for unpaid fees and civil fines arising from Cincinnati Municipal Code
violations at the property. For the reasons that follow, we affirm.
Background Facts and Procedure
{¶2} The property is located at 819 Elm Street in a historic district in downtown
Cincinnati. Twang has owned the property since 2014. The property includes a multistory
building with residential and commercial spaces.
{¶3} In August 2016, the city of Cincinnati, through its building
department, found the conditions of Twang’s building in violation of the city’s
building code and ordered Twang to barricade the building, keep it vacant, and
obtain a Vacated Building Maintenance License (“VBML”) in accordance with the
city’s VBML program.
{¶4} Under the city’s VBML program, the owner must pay a licensing fee
and bring the property into compliance with minimal safety and structural integrity
standards (“VBML standards”) for as long as the building is kept vacant. See
Cincinnati Municipal Code 1101.129 and 1101.77.3. The owner must renew the
license each year the building remains vacant, and the renewal fees increase based on
the number of years the property remains vacant. The failure to pay the VBML fee or
maintain the building consistent with VBML standards can result in late fees, civil
citations, and criminal citations. See, e.g., Cincinnati Municipal Code 1101.79.4 and
1101.129.3.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Twang did not administratively appeal the August 2016 order.
Additionally, Twang failed to obtain a VBML and bring the vacant and blighted
property into compliance with VBML standards.
{¶6} The city subsequently issued six civil citations against Twang over an
11-month period beginning in April 2017 and ending in March 2018 for failing to
comply with the August 2016 order. Those citations assessed fines in accordance
with the provisions of the city’s municipal code. Twang did not administratively
appeal those citations or pay them. Twang’s continued delinquency resulted in an
increase in the fees and fines per the schedules set forth in the city’s ordinances.
{¶7} After almost two years of noncompliance by Twang, the city filed this civil
action in July 2018. The city’s amended complaint set forth multiple claims. The causes of
action included a statutory public-nuisance claim under R.C. 3767.41 that sought
rehabilitation of the building, by a receiver if necessary, and collection claims against
Twang for the unpaid fees and fines arising from the Cincinnati Municipal Code violations
at the property.
{¶8} Twang answered and requested in writing that the building be demolished.
In September 2018, Twang applied for a certificate of noncompliance from the city’s
Historic Conservation Board to demolish the building. After the Historic Conservation
Board denied Twang’s request, Twang filed a counterclaim in this action. Citing R.C.
3767.41(E), Twang requested a declaration that its own property was a public nuisance
and an order from the court to demolish the building. Twang also moved for partial
summary judgment on this counterclaim, arguing in essence that the trial court did not
have to hold a hearing to determine that the building was a public nuisance in light of the
position of the parties.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} The city moved to dismiss Twang’s counterclaim and opposed Twang’s
request for summary judgment on the ground that Twang lacked standing. The city also
filed a motion seeking partial summary judgment on its collection claims for the unpaid
fees and fines relating to the property.
{¶10} Twang opposed the city’s motion for partial summary judgment on the
collection claims, but did not rebut the city’s evidence demonstrating that Twang owed the
fees and fines and had failed to pay them. Instead, Twang argued the city could not obtain
a judgment for the amounts sought without first establishing that the claimed fees and
fines were not excessive under the Excessive Fines Clause of the United States
Constitution.
{¶11} The city addressed the Excessive Fines Clause argument in its reply,
contending Twang could not first inject the issue into the litigation in response to the city’s
motion for partial summary judgment. Further, the city contended Twang’s assertion that
the city carried the burden with respect to the Excessive Fines Clause issue was flawed.
{¶12} The trial court subsequently dismissed Twang’s counterclaim, denied
Twang’s motion for partial summary judgment, granted the city’s motion for partial
summary judgment on its claims for unpaid fees and fines, and certified that its judgment
was final with respect to those orders. The city then dismissed its remaining claims
against Twang. Twang now appeals, asserting four assignments of error for our review.
The Assignments of Error
{¶13} In its first assignment of error, Twang contends the trial court erred
“in concluding that Twang lacked standing to pursue its demolition request under
R.C. 3767.41(E).” The essence of Twang’s argument is that the trial court erred by
4
OHIO FIRST DISTRICT COURT OF APPEALS
dismissing its counterclaim, and we recast the assignment of error to reflect this
argument.
{¶14} According to Twang, the trial court misinterpreted R.C. 3767.41 when
it concluded that the statute did not afford it standing to assert a counterclaim
seeking demolition of the building. Before an Ohio court will consider the merits of a
legal claim, “the person or entity seeking relief must establish standing to sue.” Ohio
Pyro, Inc. v. Ohio Dept. of Commerce, Div. of State Fire Marshal, 115 Ohio St.3d
375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27. This case involves statutory standing,
not common-law standing. Standing to sue may be conferred by a “specific statutory
grant of authority.” City of Middletown v. Ferguson, 25 Ohio St.3d 71, 75, 495
N.E.2d 380 (1986). That statute must authorize the invocation of the judicial
process by the plaintiff. See id. at 76.
{¶15} The interpretation of R.C. 3767.41 and whether Twang established
standing are questions of law that we review de novo. See, e.g., Ohioans For
Concealed Carry, Inc. v. City of Columbus, 164 Ohio St.3d 291, 2020-Ohio-6724, 172
N.E.3d 935, ¶ 12; Satterfield v. Ameritech Mobile Communications, Inc., 155 Ohio
St.3d 463, 2018-Ohio-5023, 122 N.E.2d 144, ¶ 16. Our main objective when
interpreting a statute is to determine and give effect to the legislative intent, as
ascertained primarily from the language of the statute. Satterfield at ¶ 16-17. The
statute at issue is clear on its face and does not support Twang’s argument on
standing.
{¶16} R.C. 3767.41 contains provisions enabling the enforcement of
nuisance-abatement laws with respect to certain buildings or portions of buildings
alleged to be a “public nuisance.” Importantly, a “civil action” may be brought by a
5
OHIO FIRST DISTRICT COURT OF APPEALS
“municipal corporation or township in which the building involved is located,” “any
neighbor or tenant,” or certain nonprofit corporations dedicated to improving
housing conditions in the area. R.C. 3767.41(B)(1). The “complaint” in that civil
action must be served on the “owner of the building and all other interested parties.”
R.C. 3767.41(B)(2)(a). “Interested party” is defined as “any owner, mortgagee,
lienholder, tenant, or person that possesses an interest of record in any property that
becomes subject to the jurisdiction of the court pursuant to this section, and any
applicant for the appointment of a receiver pursuant to this section.” R.C.
3767.41(A)(4).
{¶17} After a mandatory hearing in the “civil action described in division
(B)(1),” and a court determination that a public nuisance exists, the court may abate
the nuisance in various ways. The party commencing the civil action described in
division (B)(1) may be afforded relief from that public nuisance by a judicial order, in
accordance with the request in the complaint.
{¶18} For instance, the court may issue an injunction requiring the owner to
abate the public nuisance in 30 days. R.C. 3767.41(C)(1). Alternatively, if the owner
of the building has been afforded the opportunity to abate the public nuisance, and
has refused or failed to do so, the court shall afford the abatement opportunity to
other interested parties associated with the property. R.C. 3767.41(C)(2). Those
interested parties must provide “a viable financial and construction plan” for the
rehabilitation of the building and post security. R.C. 3767.41(C)(2). Finally, if
necessary, the court may appoint a receiver to take possession and control of the
building and abate the public nuisance. R.C. 3767.41(C)(2) and (3).
6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} The statute further specifies that “[p]rior to ordering any work to be
undertaken, or the furnishing of any materials, to abate a public nuisance under this
section, the judge in a civil action described in division (B)(1) of this section shall
review the submitted financial and construction plan for the rehabilitation of the
building involved and * * * shall approve that plan” if it specifies certain finance-
related information, including that “[i]f repair and rehabilitation of the building are
found not to be feasible, the cost of demolition of the building or of the portions of
the building that constitute the public nuisance.” R.C. 3767.41(D)(1)-(4).
{¶20} R.C. 3767.41(E), cited by Twang in its counterclaim, provides:
Upon the written request of any of the interested parties to have a
building, or portions of a building, that constitute a public nuisance
demolished because repair and rehabilitation of the building are found
not to be feasible, the judge may order the demolition.
{¶21} Twang recognizes that it lacks standing to bring the civil action
described in R.C. 3767.41(B)(1). Twang’s argument, as we understand it, is that the
“written request” language of R.C. 3767.41(E) evinces a legislative intent to afford a
building owner standing to bring a statutory public-nuisance action seeking to
declare its property a nuisance and obtain an order of demolition. Thus, Twang
contends it has statutory standing to file the counterclaim.
{¶22} Twang seemingly equates its right as an “interested party” to file a
“written request” for demolition for a building or portion of a building with statutory
standing to obtain judicial resolution of whether its building is a public nuisance.
For instance, in support of its position, Twang cites Ohio Valley Associated Builders
and Contrs. v. Kuempel, 192 Ohio App.3d 504, 2011-Ohio-756, 949 N.E.2d 582 (2d
7
OHIO FIRST DISTRICT COURT OF APPEALS
Dist.). In that case, a builders and contractors association brought an action against
a bidder alleging the bidder had violated the state’s prevailing-wage law. The court
of common pleas granted summary judgment against the association due to a lack of
standing. The court of appeals reversed, determining in part that the association had
statutory standing to bring a prevailing-wage-law claim even though it lacked
common-law standing. Id. at ¶ 22. The relevant statute, however, actually authorized
the “fil[ing] [of] a complaint in the court of common pleas.” R.C. 4115.16(B).
{¶23} We concur with the trial court’s determination in this case that R.C.
3767.41(E) only affords an “interested part[y]” the right to make a “written request”
for demolition at a certain time during the “civil action” referenced in R.C.
3767.41(B)(1). R.C. 3767.41(E) does not authorize a claim or counterclaim or the
filing of a complaint.
{¶24} Further, the language of R.C. 3767.41 does not otherwise confer
standing on Twang to commence a public-nuisance-abatement action. Twang does
not fall under one of the categories of entities or persons mentioned in R.C.
3767.41(B)(1) as authorized to bring a complaint under R.C. 3767.41 to abate an
alleged public nuisance. Because Twang does not fall under one of the categories of
parties with standing to commence a civil action under R.C. 3767.41, the legislature
did not confer on Twang standing to bring a statutory-public-nuisance claim. This
conclusion avoids the absurd result of Twang suing itself for the abatement of an
alleged public nuisance located in the building it owns and for which it claims
responsibility for creating. Twang, as owner, is not a proper plaintiff to litigate the
public-nuisance claim.
8
OHIO FIRST DISTRICT COURT OF APPEALS
{¶25} In sum, the trial court properly dismissed Twang’s counterclaim
because R.C. 3767.41(E) does not authorize a civil action and Twang admittedly is
not one of the entities or individuals mentioned in R.C. 3767.41(B)(1) that are
afforded standing to proceed on a statutory-public-nuisance claim. Consequently,
we overrule the first assignment of error.
{¶26} In its second assignment of error, Twang argues the trial court erred
by denying its motion for partial summary judgment on the issue of whether the
building was a “public nuisance.” We refrain from reviewing this assignment of
error, even to determine whether the order denying partial summary judgment was
final and appealable, because the issue involved is moot.
{¶27} Our duty as an appellate court is to decide controversies between
parties that can be carried into effect, and we need not render an advisory opinion on
a moot question or question of law that cannot affect the issues in the case. Schwab
v. Lattimore, 166 Ohio App.3d 12, 2006-Ohio-1372, 848 N.E.2d 912, ¶ 10 (1st Dist.).
The city has dismissed its claims seeking the declaration and abatement of the
claimed public nuisance, and this court has upheld the dismissal of Twang’s
counterclaim seeking similar relief. This court can grant no relief to Twang, even if
we were to hold the trial court erred in denying Twang’s motion for partial summary
judgment. Accordingly, we decline to address the second assignment of error.
{¶28} Next we address Twang’s third assignment of error. Twang contends
the trial court erred by granting summary judgment to the city on the collection
claims. We review the grant of summary judgment de novo, applying the standards
set forth in Civ.R. 56. See Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833
N.E.2d 712, ¶ 8.
9
OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} Civ.R. 56(C) mandates the entry of summary judgment if the evidence,
properly submitted, shows that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.
{¶30} Civ.R. 56(E) states that when a motion for summary judgment is
properly made and supported, the nonmoving party may not rest upon the mere
allegations or denials of the pleadings. Instead, the burden shifts to the nonmoving
party, and the nonmoving party's response must set forth specific facts showing that
there is a genuine issue for trial. If the nonmoving party does not so respond,
summary judgment, if appropriate, may be entered against the nonmoving party.
Todd Dev. Co. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 11.
{¶31} Twang does not dispute that the fees and fines arose under the city’s
ordinances and that it failed to rebut the city’s evidence that it owed the fees and
fines and failed to pay them. Twang argues disputed issues of material fact remain as
to whether the amounts due exceed what is permissible under the Excessive Fines
Clause.
{¶32} The Eighth Amendment provides that “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Eighth Amendment to the U.S. Constitution. The Excessive Fine Clause “limits the
government's power to extract payments, whether in cash or in kind, ‘as punishment
for some offense.’ ” Austin v. United States, 509 U.S. 602, 609-610, 113 S.Ct. 2801,
125 L.Ed.2d 488 (1993), quoting Browning-Ferris Industries of Vermont, Inc. v.
Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989).
{¶33} Generally, a fine imposed as punishment is excessive under the
Excessive Fines Clause “if it is grossly disproportional to the gravity of a defendant’s
10
OHIO FIRST DISTRICT COURT OF APPEALS
offense.” United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 141
L.Ed.2d 314 (1998), cited in Towers v. City of Chicago, 173 F.3d 619, 624 (7th
Cir.1999). The Excessive Fines Clause is incorporated by the Fourteenth
Amendment’s Due Process Clause and applies to state and local governments. See
Timbs v. Indiana, 586 U.S. __, 139 S.Ct. 682, 687, 203 L.Ed.2d 11 (2019).
{¶34} When opposing summary judgment, Twang argued the city had the
burden to establish that the fees and fines were not excessive under the Excessive
Fines Clause. In support of this argument, Twang relied on Etzler v. City of
Cincinnati, S.D.Ohio No. 1:07-cv-1035, 2013 WL 1196649 (Mar. 25, 2013).
{¶35} In Etzler, property owners filed a lawsuit against the city alleging in
part that the VBML fees due under city ordinances violated the Excessive Fines
Clause. To obtain summary judgment on the claim, the city was required to present
evidence that the VBML fees were not constitutionally excessive. Unlike in Etzler,
Twang did not file a claim seeking a declaration that the ordinances giving rise to the
unpaid fees and fines were unconstitutional under the Excessive Fines Clause. Thus,
Etzler does not support Twang’s position.
{¶36} Here, the city moved for summary judgment on its collection claims.
To establish a prima facie case on a collection claim, the city was not required to
establish that the amounts due under the city’s ordinances did not offend the
Excessive Fines Clause. Admittedly, the facts of this case differ from ordinary
collection actions because the amount of the alleged debt is based on fee and fine
schedules set forth in municipal ordinances. But absent exceptions not applicable
here, a duly-enacted municipal ordinance is presumptively constitutional and
binding, which leaves the challenger with the burden of proving the
11
OHIO FIRST DISTRICT COURT OF APPEALS
unconstitutionality of the ordinance. See Arnold v. Cleveland, 67 Ohio St.3d 35, 38,
616 N.E.2d 163 (1993); City of Univ. Hts. v. Dachman, 20 Ohio App.3d 26, 484
N.E.2d 199 (8th Dist.1984).
{¶37} This presumption of constitutionality applies even where, as here, the
challenger’s argument is that legislation is unconstitutional as applied to the specific
facts of a case. See Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, 55 N.E.2d
629 (1944), paragraph six of the syllabus. Twang resists characterizing its Excessive
Fine Clause argument as an as-applied constitutional challenge to the ordinances,
but that is the effect of Twang’s argument. The city carried no burden on this issue
when moving for summary judgment on the collection claims.
{¶38} Additionally, Twang’s Excessive Fine Clause challenge was not
properly raised in this case. The record supports the city’s position in its reply
memorandum in support of partial summary judgment that Twang improperly
raised the Excessive Fines Clause challenge for the first time in its memorandum
opposing summary judgment.
{¶39} Civ.R. 8(C) requires that a defendant set forth any affirmative defense
in its answer. Our review indicates that in Twang’s answer to the amended
complaint, Twang asserted a constitutional-based “Takings Clause” affirmative
defense that referenced language in the city’s amended complaint requesting the
appointment of a receiver. That affirmative defense made no reference to the
collection claims or the Excessive Fines Clause, and cannot fairly be read to include
an Excessive Fine Clause challenge. We conclude that Twang’s affirmative defense
based on the Takings Clause was insufficient to notify the city of an affirmative
defense to the collection claims based on the Excessive Fines Clause. See Brown v.
12
OHIO FIRST DISTRICT COURT OF APPEALS
Village of Lincoln Hts., 195 Ohio App.3d 149, 2011-Ohio-3551, 958 N.E.2d 1280, ¶ 11
(1st Dist.). This failure resulted in a waiver of the defense. See id. at ¶ 10.
{¶40} We find the application of the waiver doctrine particularly appropriate
in this case because the record demonstrates Twang directly contributed to the
increasing monetary obligation that it belatedly characterized as “excessive” by
failing to timely use the administrative and judicial avenues afforded to obtain
review or a reprieve. Twang simply ignored the city’s repeated efforts to bring the
property into compliance with the city’s building code until after the city filed this
lawsuit. Although the trial court did not specifically address the city’s waiver
argument in its entry, Twang’s failure to timely raise the Excessive Fines Clause
challenge is an alternative basis for affirming the trial court’s grant of partial
judgment to the city.
{¶41} Ultimately, the city established there was no genuine issue of material
fact and that it was entitled to judgment as a matter of law on the collection claims.
Accordingly the trial court did not err by granting the city’s motion for summary
judgment on those claims. Consequently, we overrule the third assignment of error.
{¶42} Finally, we turn to Twang’s fourth assignment of error. Twang does
not identify the judgment or order, or aspect of a judgment or order, that it believes
the trial court entered in error. See App.R. 16(3). Instead, Twang seeks an opinion
on whether the Historic Conservation Board’s denial of Twang’s request for a
certificate of appropriateness to demolish the building can have a res judicata effect
in future trial court proceedings. This is not a proper assignment of error and we
disregard it, as Twang is merely seeking an advisory opinion that this court is
prohibited from issuing. See, e.g., Egan v. Natl. Distillers & Chem. Corp., 25 Ohio
13OHIO FIRST DISTRICT COURT OF APPEALS
St.3d 176, 495 N.E.2d 904 (1986), syllabus; Youngstown State Univ. v. State Emp.
Relations Bd., 2016-Ohio-2649, 49 N.E.3d 382 (10th Dist.); In re A.F., 1st Dist.
Hamilton Nos. C-190680 and C-190721, 2020-Ohio-5420, ¶ 11.
Conclusion
{¶43} For the foregoing reasons, we affirm the trial court’s judgment.
Judgment affirmed.
ZAYAS, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
14