2021 Ohio 4387
Ohio Ct. App.2021Background
- Twang, LLC owned a multistory building at 819 Elm St. in Cincinnati since 2014 and failed to maintain it as required.
- In Aug. 2016 the city ordered the building vacated, barricaded, and required Twang to obtain a Vacated Building Maintenance License (VBML) and comply with VBML standards.
- Twang did not obtain the VBML, did not appeal the order, and the city issued multiple civil citations (Apr. 2017–Mar. 2018) that accrued fines and late fees.
- The city sued (July 2018) under R.C. 3767.41 (public-nuisance/abatement) and for collection of unpaid VBML fees and fines; Twang counterclaimed seeking judicial demolition of its own building after the Historic Conservation Board denied a demolition certificate.
- The trial court dismissed Twang’s counterclaim for lack of statutory standing, granted the city partial summary judgment on the collection claims (about $25,212), and certified finality; the city dismissed remaining claims.
- Twang appealed; the appellate court affirmed the trial court’s dismissal of the counterclaim and its grant of summary judgment on the collection claims and declined to decide the nuisance-summary-judgment issue as moot.
Issues
| Issue | Plaintiff's Argument (City) | Defendant's Argument (Twang) | Held |
|---|---|---|---|
| 1. Whether Twang had statutory standing under R.C. 3767.41 to sue for demolition | R.C. 3767.41 authorizes only listed parties (municipalities, neighbors, tenants, certain nonprofits) to commence the civil action; owner is not among them | R.C. 3767.41(E)’s "written request" language shows owners/interested parties can seek demolition and thus have standing to bring the claim | Court: Twang lacks standing; §3767.41(E) allows an interested party to request demolition in a §(B)(1) action but does not authorize filing the civil action; dismissal affirmed |
| 2. Whether denying Twang’s motion for partial summary judgment that the building was a public nuisance was error | City: procedural posture/mootness after dismissal; not directly argued on appeal | Twang: trial court erred in denying partial summary judgment on nuisance | Court: Issue moot because city dismissed its nuisance claims and Twang’s counterclaim was dismissed; court declined to decide |
| 3. Whether the trial court erred by granting summary judgment to the city on collection of unpaid fees and fines (Excessive Fines Clause defense) | City: municipal ordinance fees are presumptively constitutional; Twang failed to rebut prima facie case and waived any Excessive Fines defense by not pleading it timely | Twang: fees and fines may violate the Excessive Fines Clause; city must prove amounts are not excessive before summary judgment | Court: Grant affirmed — Twang waived Excessive Fines defense by not raising it in the answer and failed to rebut city’s evidence; burden to challenge constitutionality rests with challenger |
| 4. Whether the Historic Conservation Board denial has preclusive effect in future proceedings | City: not at issue; court should not issue advisory opinions | Twang: asked whether the Board’s denial could have res judicata effect later | Court: Not a proper assignment of error; request for advisory opinion dismissed |
Key Cases Cited
- Ohio Pyro, Inc. v. Ohio Dept. of Commerce, Div. of State Fire Marshal, 875 N.E.2d 550 (Ohio 2007) (standing requirement for invoking judicial relief)
- Ohioans For Concealed Carry, Inc. v. City of Columbus, 172 N.E.3d 935 (Ohio 2020) (statutory interpretation and de novo review of standing questions)
- Satterfield v. Ameritech Mobile Communications, Inc., 122 N.E.3d 144 (Ohio 2018) (statutory construction principles)
- Timbs v. Indiana, 139 S. Ct. 682 (U.S. 2019) (Excessive Fines Clause incorporated against the states)
- United States v. Bajakajian, 524 U.S. 321 (U.S. 1998) (excessiveness analysis for fines under the Eighth Amendment)
- Arnold v. Cleveland, 616 N.E.2d 163 (Ohio 1993) (presumption of constitutionality of duly enacted ordinances)