City of Cincinnati v. Twang, LLC

1

2021-Ohio-4387

CITY OF CINCINNATI, Plaintiff-Appellee, v. TWANG, LLC, Defendant-Appellant.

No. C-200369

Court of Appeals of Ohio, First District, Hamilton

December 15, 2021

Civil Appeal From: Hamilton County Court of Common Pleas TRIAL NO A-1803297

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.

OPINION

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 {¶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. 376741 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. 376741(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.

{¶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 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. 376741 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 "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).

{¶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,...