Gpi Distribs., Inc. v. Ne. Ohio Reg'l Sewer Dist., 106806

2018 Ohio 4871

GPI DISTRIBUTORS, INC. PLAINTIFF-APPELLANT v. NORTHEAST OHIO REGIONAL SEWER DISTRICT DEFENDANT-APPELLEE

No. 106806

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

December 6, 2018

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case Nos. CV-17-883825 and CV-17-887300

BEFORE: Celebrezze, J., Kilbane, P.J., and Boyle, J.

ATTORNEYS FOR APPELLANT

Deborah A. Coleman

Coleman Law, L.L.C.

16781 Chagrin Boulevard, #289

Cleveland, Ohio 44120

Andrew S. Pollis

Avidan Y. Cover

Milton A. Kramer Law Clinic - CWRU

11075 East Boulevard

Cleveland, Ohio 44106

Cory Novak

Legal Intern

Milton A. Kramer Law Clinic - CWRU

11075 East Boulevard

Cleveland, Ohio 44106

ATTORNEYS FOR APPELLEE

Eric Luckage

Chief Legal Officer

Amanda Lee Holzhauer

Assistant General Counsel

Northeast Ohio Regional Sewer District

3900 Euclid Avenue

Cleveland, Ohio 44115

FRANK D. CELEBREZZE, JR., J.:

{¶1} Plaintiff-appellant, GPI Distributors, Inc. (hereinafter "GPI"), appeals the trial court's judgment granting defendant-appellee, Northeast Ohio Regional Sewer District's (hereinafter "NEORSD") motion to dismiss GPI's administrative appeal for failure to comply with R.C. 2505.06. GPI argues that the trial court erred by granting NEORSD's motion to dismiss because it was not required to file a supersedeas bond in order to perfect theadministrative appeal and that even if a bond was required, the appeal could proceed on questions of law. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶2} The instant appeal arose from a dispute over sewer bills charged to a residential property owned by GPI between December 2014 and June 2015. GPI initiated two separate but related civil actions in the Cuyahoga County Court of Common Pleas.

{¶3} First, in Cuyahoga C.P. No. CV-17-883825 (hereinafter "declaratory judgment action"), GPI filed a complaint on August 1, 2017, against the city of Cleveland, the director of the city's department of public utilities, NEORSD, NEORSD's chief executive officer, Cuyahoga County's fiscal officer, and Cuyahoga County's treasurer. In its complaint, GPI sought a declaratory judgment and preliminary and permanent injunctive relief. Specifically, GPI alleged that (1) various policies and practices of the city of Cleveland and NEORSD were unconstitutional, violating GPI's constitutional rights to due process, protection from takings for public purposes without just compensation, and various civil rights, and (2) the city violated various sections of the Cleveland Codified Ordinances¹ in the manner in which it installed and maintained water meters and assessed water and sewer bills to customers.

{¶4} Second, in Cuyahoga C.P. No. CV-17-887300 (hereinafter "administrative appeal"), GPI filed an administrative appeal on October 12, 2017, challenging NEORSD's September 21, 2017 decision that approved and adopted a hearing officer's determination that GPI's sewer bills were accurate. On October 12, 2017, GPI filed a motion to consolidate the declaratory judgment action with the administrative appeal. The trial court granted GPI's motion, and the two cases were consolidated on October 13, 2017.

{¶5} Along with its motion to consolidate, GPI filed a motion to "determin[e] the necessity of a supersedeas bond to perfect notice of appeal" in which it requested an expedited ruling. On the same day, GPI filed an amended motion to "determin[e] that no supersedeas bond is necessary to perfect notice of appeal." In the amended motion, GPI argued that it was not required to post the supersedeas bond required by R.C. 2505.06 in order to perfect its administrative appeal because (1) NEORSD did not issue an order for the payment of money, making the bond exemption set forth in R.C. 2505.12(B) applicable, and (2) NEORSD already obtained a lien on GPI's property for the outstanding sewer charges, and thus, the interests that NEORSD had at stake in the administrative appeal were already secured. Alternatively, GPI requested that the trial court set a nominal cash bond of $50.

{¶6} On October 18, 2017, NEORSD filed a brief in opposition to GPI's motion regarding the supersedeas bond. Therein, NEORSD argued that GPI was required to comply with R.C. 2505.06's bond requirement in order to perfect its notice of appeal.

{¶7} On October 19, 2017, the trial court denied GPI's motion for a determination that no supersedeas bond was required. The trial court's judgment entry provides, in relevant part,

R.C. 2505.06 requires that an administrative appeal upon questions of law and fact be superseded by a bond. Because this case involves an administrative appeal of a final order on a sewer bill charge in the amount of $12,047.76, R.C. 2505.12(B), which exempts the supersedeas bond requirement, in inapplicable. [GPI's] additional argument that [NEORSD's] interest in the sewer bill charge has already been secured with a lien is without merit because the tax balance on the property at issue exceeds the value of the property. * * * R.C. 2505.09 requiresthat a supersedeas bond is executed by the appellant to the appellee, with sufficient sureties and in a sum that is not less than the cumulative total for all claims covered by [t]he final order. Therefore, [GPI] is required to post a supersedeas bond in the amount of $12,047.76.

{¶8} On November 1, 2017, NEORSD filed a motion to dismiss the administrative appeal based on GPI's failure to comply with R.C. 2505.06's bond requirement. On November 28, 2017, GPI filed a brief in opposition to the motion to dismiss. In opposing the motion to dismiss, GPI argued, for the first time, that (1) it was indigent and could not afford to post the bond set by the trial court, and (2) R.C. 2505.06's bond requirement was unconstitutional because it violated GPI's constitutional rights to due process and equal protection. NEORSD filed a reply brief in support of its motion to dismiss on December 6, 2017.

{¶9} On January 12, 2018, the trial court granted NEORSD's motion to dismiss and dismissed GPI's administrative appeal. The trial court's judgment entry provides, in relevant part,

This court previously determined that a supersedeas bond was required to invoke jurisdiction to review the outcome of an administrative appeal regarding NEORSD placement of a lien against GPI property for unpaid sewer charges. GPI filed the administrative appeal citing issues of fact and law. * * * [GPI] failed to file the bond in a timely manner or to substitute for bond pursuant to R.C. 2505.11. NEORSD moved for dismissal for GPI's failure to perfect the administrative appeal in compliance with R.C. 2505.06.

GPI opposes dismissal asserting that it could not afford the posting of the bond, thereby depriving it of a meaningful opportunity to be heard in violation of its rights to due process and equal protection under Federal and State Constitutions. Simply stated, GPI asserts that the bond requirement of R.C. [2505.06] is unconstitutional as an impediment to access court review of the administrative appeal. Legislative enactments are to be afforded a strong presumption of constitutionality. Rocky River v. State Empl. Relations Bd., 43 Ohio St.3d 1 (1989).

The administrative appeal was conducted for a determination of an amount due for the sewer charges, thereby requiring the posting of the supersedeas bond. As no bond was timely posted, case is hereby dismissed.

{¶10} It is from this judgment that GPI filed the instant appeal on February 7, 2018. GPI assigns one error for review:

I. The trial court erred in granting [NEORSD's] motion to dismiss [GPI's] administrative appeal for failure to post a supersedeas bond under R.C. 2505.06.

II. Law and Analysis

A. Final Appealable Order

{¶11} As an initial matter, we must determine whether the trial court's January 12, 2018 judgment granting NEORSD's motion to dismiss GPI's administrative appeal is a final, appealable order.

{¶12} As noted above, GPI filed (1) a declaratory judgment action in CV-17-883825, and (2) an administrative appeal in CV-17-887300. The trial court's January 12, 2018 judgment entry granting NEORSD's motion to dismiss was dispositive of GPI's administrative appeal. There was no disposition, however, of GPI's declaratory judgment action or the causes of action GPI asserted in its August 1, 2017 complaint.

An order of a court is a final appealable order only if the requirements of both Civ.R. 54(B), if applicable, and R.C. 2505.02 are met. Chef Italiano Corp. v. Kent State Univ., [44 Ohio St.3d 86, 541 N.E.2d 64 (1989)], syllabus. Moreover, an order which adjudicates one or more but fewer than all the claims or the rights and liabilities of fewer than all the parties must meet the requirements of R.C. 2505.02 and Civ.R. 54(B) in order to be final and appealable. Noble v. Colwell, [44 Ohio St.3d 92, 540 N.E.2d 1381 (1989)], syllabus. An order fully adjudicating a claim and accompanied by a Civ.R. 54(B) determination and direction is final and appealable despite the fact that a counterclaim remains pending. Id. at 94.

R.C. 2505.02 in relevant part defines a final order as "an order affecting asubstantial right in an action which in effect determines the action and prevents a judgment." Id. at 88.

Philpott v. Ernst & Whinney, 8th Dist. Cuyahoga No. 61203, 1992 Ohio App. LEXIS 5930, 3-4 (Nov. 25, 1992).

{¶13} Furthermore,

[t]he Ohio Supreme Court has held that where multiple claims and/or parties exist, an order adjudicating one or more but fewer than all the claims or the rights and liabilities of fewer than all of the parties must meet the requirements of both R.C. 2505.02 and Civ.R. 54(B) in order to constitute a final appealable order. Noble at 96. The court explained that Civ.R. 54(B) "makes mandatory the use of the language, 'there is no just reason for delay.' Unless those words appear where multiple claims and/or multiple parties exist, the order is subject to modification and it cannot be either final

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