DocketNumber: No. 12211.
Citation Numbers: 573 N.E.2d 747, 61 Ohio App. 3d 663, 1991 Ohio App. LEXIS 543
Judges: Fain, Brogan, Grady
Filed Date: 2/8/1991
Status: Precedential
Modified Date: 10/19/2024
Relator-appellee, Alvin Freeman, brought suit pursuant to R.C.
CCM contacted the Special Investigation Bureau of the Dayton Police Department, and discovered that Pierce's house had been connected with drug-related activity on several occasions. Surveillance of the Pierce home was then conducted, and officers noticed an inordinate volume of traffic which stopped in front of the house and purchased unidentified packages. Detective Kenneth Beall testified that this activity was consistent with drug transactions. Pierce, as well as several defense witnesses, testified that the family was operating a restaurant out of her home, and the officers had only witnessed customers picking up rib dinners.
Freeman, who has standing under R.C.
On April 24 and 26, 1989, a hearing was held with both parties present. The parties agreed that this single hearing would suffice for the motions for both the preliminary and permanent injunctions. The trial court found that the Pierce home was a nuisance and issued a preliminary injunction on April 28, 1989, enjoining further felony drug violations on the premises. Freeman filed a memorandum in support of a permanent injunction on May 10, 1989, but Pierce did not reply or attempt to submit any further evidence. On June 8, 1989, the trial court issued a permanent injunction and ordered that the Pierce home be closed, and that it not be used by any person for any purpose for a period of one year, as authorized by R.C.
From this permanent injunction, Pierce now appeals. Execution of the "padlock order" has been stayed pending this appeal.
"The Common Pleas Court of Montgomery County erred in finding that defendant-appellant was guilty of maintaining a nuisance per se when it overruled defendant-appellant's motion for summary judgment and further erred in that the finding was against the manifest weight of the evidence and contrary to law."
Although the assignment of error specifically mentions the denial of her motion for summary judgment, nowhere in her brief does Pierce address this point. However, our holding on the manifest weight of the evidence implicitly decides this issue since Pierce could not have been granted a summary judgment without being entitled to judgment as a matter of law. Civ.R. 56(C). We also note that Pierce states in her conclusion that "R.C. 3767 [sic] is unconstitutional, in direct contravention of the First and Fourteenth Amendments." However, we can find no argument or support for this contention in her brief. "Errors not specifically pointed out in the record and separately argued by brief may be disregarded." App.R. 12(A). Therefore, we will address the only question that is properly before us: Whether the trial court's judgment was against the manifest weight of the evidence.
The parties disagree on who had the burden to prove what in the trial court. Freeman contends that he only needed to make aprima facie showing that felony drug violations occurred on the premises, and that the burden then shifted to Pierce to prove by a preponderance of the evidence that she reasonably lacked knowledge of these crimes. Pierce argues that the burden rested upon Freeman to prove beyond a reasonable doubt that she participated in a felony drug offense at her house, and that this activity caused a substantial injury to Freeman. We do not entirely agree with either party's position. Therefore, in order to determine whether the judgment before us comports with the manifest weight of the evidence, we must first address the rather novel question of what burdens of proof exist in the abatement of "drug nuisances."
The cause of action in the case before us is created by R.C.
"Premises or real estate, including vacant land, on which a felony violation of Chapter 2925. or 3719. of the Revised Code occurs constitute a nuisance subject to abatement pursuant to Chapter 3767 of the Revised Code." *Page 667
Since the nuisance has been defined by the General Assembly, the applicable law is clearly nuisance per se, not nuisanceper accidens as Pierce argues. State, ex rel. Brown, v. ChaseFoundry Mfg. Co. (1982),
"It is established law in Ohio that, when a statute grants a specific injunctive remedy to an individual or to the state, the party requesting the injunction ``need not aver and show, as under ordinary rules in equity, that great or irreparable injury is about to be done for which he has no adequate remedy at law * * *.'" Ackerman v. Tri-City Geriatric Health Care, Inc.
(1978),
Pierce also argues that since the provisions of R.C.
On the other hand, Freeman argues that the burden of proof shifts to the defendant after a prima facie showing by the relator that a drug offense has occurred. In support of this contention, Freeman directs our attention to three instances in the procedural framework for nuisance abatement that mention burdens of proof which fall upon owners of real or personal property involved in the action.
Prior to the issuance of the preliminary injunction, the owner of the premises can avoid the closing of his property if he "shows to the satisfaction of the court or judge that the nuisance complained of is abated, or that such *Page 668
person proceed forthwith to enforce his rights under Section
"The owner of any real or personal property closed or restrained to be closed or restrained may appear between the filing of the petition and the hearing on the application for a permanent injunction and, upon payment of all costs incurred and upon the filing of a bond by the owner of the real property with sureties to be approved by the clerk in the full value of the property to be ascertained by the court, or, in vacation, by the judge, conditioned that such owner will immediately abate the nuisance and prevent the same from being established or kept until the decision of the court or judge is rendered on the application for a permanent injunction, then the court, or judge in vacation, if satisfied of the good faith of the owner of thereal property and of innocence on the part of any owner of thepersonal property of any knowledge of the use of such personalproperty as a nuisance and that, with reasonable care anddiligence, such owner could not have known thereof, shall deliver such real or personal property, or both, to the respective owners thereof, and discharge or refrain from issuing at the time of the hearing on the application for the temporary injunction any order closing such real property or restraining the removal or interference with such personal property." (Emphasis added.)
Finally, if the trial court orders the contents of the nuisance premises to be sold, owners of these items may recover them if they appear within ten days of the issuance of the permanent injunction and "prove innocence, to the satisfaction of the court, of any knowledge of said use thereof and that with reasonable care and diligence, they could not have known thereof." R.C.
From these sections, Freeman concludes that the only burden upon the relator is to show that a felony drug offense has occurred. At that point, Freeman argues, the only way that closure can be avoided is if the defendant proves that she did not know, and with due diligence could not have known that the property was being used in illegal activities. We do not agree.
The confusion arises from the fact that the owner of the property is not necessarily a defendant in the nuisance action. Such a suit may be brought against "[a]ny person, who uses, occupies, establishes, or conducts a nuisance, or aids or abets therein, and the owner, agent, or lessee of any interest in any such nuisance * * *." R.C.
We find guidance in a decision by the Lucas County Court of Common Pleas, in State, ex rel. Pizza, v. Tom S.A. Inc. (1981),
"* * * R.C.
Freeman argues that Tom S.A. is distinguishable because it addressed First Amendment concerns that are not present in the case before us. We disagree. While Tom S.A. did involve certain freedom of expression issues unrelated to this case, Judge Riley emphasized that the language quoted above was offered "[i]n addition to the constitutional issues," and represented an independent ground for denying the injunction, due to relator's inability to meet his burden of proof. Id.,
It is axiomatic that the party who asserts something has the burden of proving it. Where a party seeks injunctive relief pursuant to Civ.R. 65, the burden of proof is on the petitioner. See George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc.
(1981),
R.C.
It is less clear what degree of proof is required of the relator. R.C.
Finally, we turn to the question of what elements the relator must prove. We agree with the parties that there must be a threshold showing that a felony violation of R.C. Chapter 2925 or 3719 has occurred on the premises. The other elements can be found in the statutes. R.C.
"* * * evidence of the general reputation of the place or an admission or finding of guilt of any person under the criminal laws against prostitution, lewdness, or assignation [or felony drug offenses by virtue of R.C.
Clearly, there would be no reason for including evidentiary presumptions in the statute unless it were necessary that the relator prove these elements. Therefore, the relator must show that the defendant knew of the drug offenses, and either participated in them, or acquiesced in their occurrence.2 *Page 671 The relator may use, but is not limited to, reputation and convictions arising from the premises to prove these elements. In essence, this is equivalent to the requisite "degree of culpability" on the defendant's part, referred to in Tom, S.A.,supra. Without such a requirement, the statute would seem to authorize any resident of the county to trespass on an innocent landowner's property, commit a drug offense there, and then commence proceedings to have the property declared a nuisance. Such an absurd result could not have been intended by the legislature.
In conclusion, we hold that in order to obtain an abatement order pursuant to R.C.
We now turn to the question of whether, given this standard, the judgment in the case before us is against the manifest weight of the evidence. We hold that it is not.
The trial court heard evidence that on February 17, 1987, the Dayton Police Department discovered, pursuant to a search warrant, sixty-three bags of marijuana and a quantity of "crack" cocaine in the Pierce home. Upon these facts, Pierce's son, Jessie, Jr., was charged with aggravated trafficking, by virtue of possession of three times the bulk amount, R.C.
Detective Kenneth Beall of the Dayton Police Department testified that on April 13, 1989, he witnessed what, in his expert opinion, appeared to be a series of drug transactions on Pierce's property. Detective Beall testified that during the hour and a half that he watched, numerous cars were flagged down in front of the Pierce home and "quick hand-to-hand exchanges" took place between the drivers and the people in Pierce's yard. While this was going on, other people stood at either end of the street and occasionally shouted "rollers!" Det. Beall testified that this term "is used by lookouts in *Page 672 the street-level drug transaction areas to warn buyers and sellers that the police were approaching."
Magdalene Boyd, a neighbor of Pierce, testified that the activities observed by Det. Beall had been occurring at the Pierce home for more than three years. Boyd also testified that she had been approached on several occasions while driving by the Pierce home and was asked if she wished to buy a "nickel bag" of marijuana. Boyd recognized the people who offered her drugs as residents of the Pierce home.
Lt. James Finnigan of the Dayton Police Department testified that the "drug hotline" had received more than ten anonymous tips in the previous year complaining of drug sales at the Pierce home. Freeman, Lt. Finnigan, and Boyd all testified that the Pierce home had the reputation of being a place where illegal drug sales were routinely conducted. As discussed above, this reputation evidence was prima facie proof that Pierce knew of and acquiesced in the felony drug violations that occurred on her premises. R.C.
It is well-established that "judgments supported by some competent, credible evidence going to all of the elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. FoleyConstruction Co. (1978),
Pierce's sole assignment of error is overruled.
Judgment affirmed.
BROGAN and GRADY, JJ., concur.
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