CITY OF CINCINNATI v. TWANG, LLC
APPEAL NO. C-200369; TRIAL NO. A-1803297
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 15, 2021
[Cite as Cincinnati v. Twang, L.L.C., 2021-Ohio-4387.]
WINKLER, Judge.
Civil Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed
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.
{¶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
{¶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
{¶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
{¶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
{¶14} According to Twang, the trial court misinterpreted
{¶15} The interpretation of
{¶16}
{¶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.
{¶20}
Upon the written request of any of the interested parties to have a building, or portions of a building, that constitute a public nuisance demolished because repair and rehabilitation of the building are found not to be feasible, the judge may order the demolition.
{¶21} Twang recognizes that it lacks standing to bring the civil action described in
{¶22} Twang seemingly equates its right as an “interested party” to file a “written request” for demolition for a building or portion of a building with statutory standing to obtain judicial resolution of whether its building is a public nuisance. For instance, in support of its position, Twang cites Ohio Valley Associated Builders and Contrs. v. Kuempel, 192 Ohio App.3d 504, 2011-Ohio-756, 949 N.E.2d 582 (2d
{¶23} We concur with the trial court‘s determination in this case that
{¶24} Further, the language of
{¶26} In its second assignment of error, Twang argues the trial court erred by denying its motion for partial summary judgment on the issue of whether the building was a “public nuisance.” We refrain from reviewing this assignment of error, even to determine whether the order denying partial summary judgment was final and appealable, because the issue involved is moot.
{¶27} Our duty as an appellate court is to decide controversies between parties that can be carried into effect, and we need not render an advisory opinion on a moot question or question of law that cannot affect the issues in the case. Schwab v. Lattimore, 166 Ohio App.3d 12, 2006-Ohio-1372, 848 N.E.2d 912, ¶ 10 (1st Dist.). The city has dismissed its claims seeking the declaration and abatement of the claimed public nuisance, and this court has upheld the dismissal of Twang‘s counterclaim seeking similar relief. This court can grant no relief to Twang, even if we were to hold the trial court erred in denying Twang‘s motion for partial summary judgment. Accordingly, we decline to address the second assignment of error.
{¶28} Next we address Twang‘s third assignment of error. Twang contends the trial court erred by granting summary judgment to the city on the collection claims. We review the grant of summary judgment de novo, applying the standards set forth in
{¶30}
{¶31} Twang does not dispute that the fees and fines arose under the city‘s ordinances and that it failed to rebut the city‘s evidence that it owed the fees and fines and failed to pay them. Twang argues disputed issues of material fact remain as to whether the amounts due exceed what is permissible under the Excessive Fines Clause.
{¶32} The Eighth Amendment provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
{¶33} Generally, a fine imposed as punishment is excessive under the Excessive Fines Clause “if it is grossly disproportional to the gravity of a defendant‘s
{¶34} When opposing summary judgment, Twang argued the city had the burden to establish that the fees and fines were not excessive under the Excessive Fines Clause. In support of this argument, Twang relied on Etzler v. City of Cincinnati, S.D.Ohio No. 1:07-cv-1035, 2013 WL 1196649 (Mar. 25, 2013).
{¶35} In Etzler, property owners filed a lawsuit against the city alleging in part that the VBML fees due under city ordinances violated the Excessive Fines Clause. To obtain summary judgment on the claim, the city was required to present evidence that the VBML fees were not constitutionally excessive. Unlike in Etzler, Twang did not file a claim seeking a declaration that the ordinances giving rise to the unpaid fees and fines were unconstitutional under the Excessive Fines Clause. Thus, Etzler does not support Twang‘s position.
{¶36} Here, the city moved for summary judgment on its collection claims. To establish a prima facie case on a collection claim, the city was not required to establish that the amounts due under the city‘s ordinances did not offend the Excessive Fines Clause. Admittedly, the facts of this case differ from ordinary collection actions because the amount of the alleged debt is based on fee and fine schedules set forth in municipal ordinances. But absent exceptions not applicable here, a duly-enacted municipal ordinance is presumptively constitutional and binding, which leaves the challenger with the burden of proving the
{¶37} This presumption of constitutionality applies even where, as here, the challenger‘s argument is that legislation is unconstitutional as applied to the specific facts of a case. See Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, 55 N.E.2d 629 (1944), paragraph six of the syllabus. Twang resists characterizing its Excessive Fine Clause argument as an as-applied constitutional challenge to the ordinances, but that is the effect of Twang‘s argument. The city carried no burden on this issue when moving for summary judgment on the collection claims.
{¶38} Additionally, Twang‘s Excessive Fine Clause challenge was not properly raised in this case. The record supports the city‘s position in its reply memorandum in support of partial summary judgment that Twang improperly raised the Excessive Fines Clause challenge for the first time in its memorandum opposing summary judgment.
{¶39}
{¶40} We find the application of the waiver doctrine particularly appropriate in this case because the record demonstrates Twang directly contributed to the increasing monetary obligation that it belatedly characterized as “excessive” by failing to timely use the administrative and judicial avenues afforded to obtain review or a reprieve. Twang simply ignored the city‘s repeated efforts to bring the property into compliance with the city‘s building code until after the city filed this lawsuit. Although the trial court did not specifically address the city‘s waiver argument in its entry, Twang‘s failure to timely raise the Excessive Fines Clause challenge is an alternative basis for affirming the trial court‘s grant of partial judgment to the city.
{¶41} Ultimately, the city established there was no genuine issue of material fact and that it was entitled to judgment as a matter of law on the collection claims. Accordingly the trial court did not err by granting the city‘s motion for summary judgment on those claims. Consequently, we overrule the third assignment of error.
{¶42} Finally, we turn to Twang‘s fourth assignment of error. Twang does not identify the judgment or order, or aspect of a judgment or order, that it believes the trial court entered in error. See
Conclusion
{¶43} For the foregoing reasons, we affirm the trial court‘s judgment.
Judgment affirmed.
ZAYAS, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.