2020 Ohio 4685
Ohio Ct. App.2020Background
- Rick Carlson filed suit in July 2017 to stay demolition of a vacant building; the City of Cincinnati counterclaimed and filed third-party claims against Carlson, his children, and his LLC alleging hundreds of thousands in unpaid fines, costs, and Vacated Building Maintenance License (VBML) fees for numerous properties.
- The City moved for partial summary judgment on unpaid civil fines, demolition/stabilization/nuisance-abatement costs, water charges, and VBML fees, supporting its motion with an affidavit from Edward Cunningham.
- In its reply, the City appended Exhibit H, a spreadsheet showing per-property VBML calculations and totals; the Carlson defendants contended Exhibit H was new evidence introduced in reply and challenged the fee calculations.
- The trial court denied the Carlson defendants’ motion to file a surreply, granted the City’s partial summary judgment, and entered judgment requiring the Carlsons to pay substantial VBML fines and related charges.
- The City later filed a satisfaction of judgment as to Rick Carlson, which rendered his portion of the appeal moot; on appeal the court affirmed most of the trial court’s judgment but reversed the award for a 2011 VBML fee and late fee assessed against Jeremiah Carlson as time-barred by the six-year statute of limitations.
Issues
| Issue | Carlson's Argument | City of Cincinnati's Argument | Held |
|---|---|---|---|
| Admissibility of Exhibit H and sufficiency of VBML evidence | Exhibit H was new evidence presented in a reply and city offered unsworn statements; trial court erred relying on it | Once ownership, vacancy dates, and failure to obtain VBMLs were proven, Exhibit H was a mathematical aid, not new evidence | Court: Overruled Carlson; Exhibit H was permissible as a calculation aid and summary judgment evidence was sufficient |
| Statute of limitations for 2011 VBML fee (2516 Liddell) | 2011 fee was time-barred under six-year statute when City filed in Aug 2017 | City argued fees accrued continuously and remained collectible | Court: Sustained Carlson; 2011 VBML fee and late fee accrued in July 2011 and were barred by six-year statute of limitations |
| Interpretation of VBML escalating fee scheme (whether new owner pays $900 first-year only) | First-year owner-applicant must pay $900 regardless of how long property had been vacant | Fee depends on duration property has been ordered vacated; $900 limited to initial application or first renewal after ordinance implementation | Court: Overruled Carlson; fee is based on time property has been vacated, not time of owner’s possession; $900 exception is narrow and not a perpetual first-year owner discount |
| Mootness / satisfaction of judgment as to Rick Carlson | Requested reduction of judgment (clerical error) | City filed satisfaction of judgment as to Rick Carlson; no stay or bond was posted | Court: Carlson’s appeal is moot as to Rick Carlson; relief cannot be granted on that portion |
Key Cases Cited
- Wiest v. Wiegele, 170 Ohio App.3d 700 (mootness where judgment voluntarily satisfied)
- Blodgett v. Blodgett, 49 Ohio St.3d 243 (voluntary satisfaction of judgment and effect on appeal)
- Shalkhauser v. Medina, 148 Ohio App.3d 41 (motion for reconsideration filed after final judgment is a nullity)
- Pitts v. Dept. of Transp., 67 Ohio St.2d 378 (trial court retains jurisdiction to reconsider interlocutory rulings prior to final judgment)