CITY OF CLEVELAND, APPELLANT, v. WASHINGTON MUTUAL BANK, APPELLEE.
No. 2009-0441
Supreme Court of Ohio
Submitted December 2, 2009—Decided May 26, 2010.
125 Ohio St.3d 541, 2010-Ohio-2219
CUPP, J.
John P. Curp, Cincinnati City Solicitor, Ernest F. McAdams Jr., City Prosecuting Attorney, and Keith C. Forman, Assistant City Prosecuting Attorney, urging affirmance for amicus curiae city of Cincinnati.
{¶ 1} The issue in this case is whether
I. Procedural History
{¶ 2} This appeal arises out of a trial in the Cleveland Municipal Court in which appellee, Washington Mutual Bank, was charged by affidavit or complaint with building- and housing-code violations on property that it owned.
{¶ 3} Following a January 2007 inspection of the property, a city of Cleveland housing inspector filed a complaint against the bank in February 2007, alleging that the bank had failed to comply with an order of the director of building and housing and had violated Cleveland building and housing codes pertaining to the
{¶ 4} In November 2007, a speedy-trial waiver signed by “Romi T. Fox” as attorney for Washington Mutual was filed.
{¶ 5} However, Fox‘s motion to withdraw was granted after she informed the court that she was unable to contact the bank and that the bank no longer owned the property. Attached to the motion were title documents showing that the bank had transferred the property to another person on June 25, 2007. The municipal court scheduled the matter for trial in absentia. However, the court later ordered the clerk to reissue the summons to the bank. The summons was addressed to “Washington Mutual Corp. Service” at a Columbus, Ohio address. The trial court‘s docket indicates that the summons was issued by “regular mail/certificate of mail” on February 15, 2008.
{¶ 6} On April 7, 2008, the bank again failed to appear either through an attorney or a corporate representative. The clerk entered a not-guilty plea on behalf of the bank, and the court conducted a trial in absentia. The court found the bank guilty as charged and imposed a fine of $100,000.
{¶ 7} The bank appealed its conviction and sentence, contending that
{¶ 8} The city appealed to this court, and we granted discretionary review on two of the city‘s propositions of law: (1) whether
II. Analysis
{¶ 9} To answer the question whether the trial in absentia of Washington Mutual in this case was authorized by Ohio law, we review the language of the statutes, including
R.C. 2941.47
{¶ 10} The court of appeals held that Washington Mutual‘s conviction must be vacated because
{¶ 11} “When an indictment is returned or information filed against a corporation, a summons commanding the sheriff to notify the accused thereof, returnable on the seventh day after its date, shall issue on praecipe of the prosecuting attorney. Such summons with a copy of the indictment shall be served and returned in the manner provided for service of summons upon corporations in civil actions. If the service cannot be made in the county where the prosecution began, the sheriff may make service in any other county of the state, upon the president, secretary, superintendent, clerk, treasurer, cashier, managing agent, or other chief officer thereof, or by leaving a copy at a general or branch office or usual place of doing business of such corporation, with the person having charge thereof. Such corporation shall appear by one of its officers or by counsel on or before the return day of the summons served and answer the indictment or information by motion, demurrer, or plea, and upon failure to make such appearance and answer, the clerk of the court of common pleas shall enter a plea of ‘not guilty.’ Upon such appearance being made or plea entered, the corporation is before the court until the case is finally disposed of. On said indictment or information no warrant of arrest may issue except for individuals who may be included in such indictment or information.” (Emphasis added.)
{¶ 12} By its plain language,
{¶ 13} In this case, the misdemeanor prosecution against Washington Mutual was instituted by complaint or affidavit in the municipal court, not by indictment or information in the common pleas court. The court of appeals was mistaken in stating that prosecution by indictment and information is reserved for felony prosecutions, because misdemeanors also may be presented in common pleas court. Washington Mut. Bank, 179 Ohio App.3d 692, 2008-Ohio-6956, 903 N.E.2d 384, at ¶ 8.
{¶ 14} However, the court of appeals correctly concluded that
{¶ 15} The city argues that by virtue of
{¶ 16} “Prosecutions for misdemeanors may be instituted by a prosecuting attorney by affidavit or such other method as is provided by law in such courts as have original jurisdiction in misdemeanor. Laws as to form, sufficiency, amendments, objections, and exceptions to indictments and as to service thereof apply to such affidavits and warrants issued thereon.” (Emphasis added.)
{¶ 17} This court, in Cleveland v. Ely (1963), 174 Ohio St. 403, 404, 23 O.O.2d 46, 189 N.E.2d 724, held that under
{¶ 18} Neither Ely nor the appellate court cases on which the city relies require that the trial procedure set forth in
B. Trial of Corporation in Absentia
{¶ 19} The city argues that the language of
{¶ 20} “Such corporation shall appear by one of its officers or by counsel on or before the return day of the summons served and answer the indictment or information by motion, demurrer, or plea, and upon failure to make such appearance and answer, the clerk of the court of common pleas shall enter a plea of ‘not guilty.’ Upon such appearance being made or plea entered [i.e., an appearance by the corporation through one of its officers or its legal counsel, or a plea entered by the clerk of the common pleas court], the corporation is before the court until the case is finally disposed of.” (Emphasis added.)
{¶ 21} However, our holding that
III. Conclusion
{¶ 22} For the above reasons, we hold that
Judgment affirmed and cause remanded.
O‘CONNOR, J., concurs separately.
BROWN, C.J., not participating.
O‘CONNOR, J., concurring.
{¶ 23} I join the majority opinion but write separately to urge the General Assembly to study the problem that gives rise to cases like this one: high rates of foreclosure in urban neighborhoods dominated by absentee owners.
{¶ 24} Cleveland, like other Ohio cities, has witnessed the spread of blighted neighborhoods caused by many factors, including absentee owners (corporate and individual) who permit properties to go into ruin and decay. The presence of abandoned or untended buildings “portends and precipitates a downward spiral in the quality of life of [a] community.” Melissa C. King, Recouping Costs for Repairing “Broken Windows“: The Use of Public Nuisance by Cities to Hold Banks Liable for the Costs of Mass Foreclosures (2009), 45 Tort Trial & Ins.Prac.L.J. 97, 98. Cities already struggling to address the challenges of urban life are now desperate for assistance in their efforts to stop additional blight and deterioration.
{¶ 25} City prosecutors working in municipal and common pleas courts must have a mechanism through which they can constitutionally provide notice to owners but proceed with trial in absentia if an owner fails to respond to defend the claim. Legislative modification of
{¶ 26} In asserting the need for action, I am aware that many lenders are now inundated with foreclosed properties. But that dynamic is not likely to change in the foreseeable future, and lenders, as the lawful property owners, must now address the problem. They may choose to do so through cooperative efforts with city leaders. But ignoring the problem will only contribute to it, a result that is not legally, fiscally, or morally acceptable.
Robert J. Triozzi, Cleveland Law Director, and Karyn J. Lynn, Assistant Law Director, for appellant.
Bricker & Eckler, L.L.P., Vladimir P. Belo, and Nelson M. Reid; and Shapiro, Van Ess, Phillips & Barragate, L.L.P., and Benjamin D. Carnahan, for appellee.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, and Alexandra T. Schimmer, Chief Deputy Solicitor General, urging reversal for amicus curiae, Ohio Attorney General.