Cleveland v. Go Invest Wisely, L.L.C.Cleveland v. Go Invest Wisely, L.L.C.
JUDGMENT: AFFIRMED
ATTORNEY FOR APPELLANT
James J. Costello, Esq.
Powers, Friedman, Linn, P.L.L.
23240 Chagrin Blvd., Suite 180
Cleveland, Ohio 44122
ATTORNEY FOR APPELLEE
Karyn J. Lynn, Esq.
Assistant Director of Law
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
JAMES J. SWEENEY, J.:
{¶ 1} Defendant-appellant Go Invest Wisely, LLC (“GIW“) appeals its no contest pleas and accompanying fines for 18 violations of
{¶ 2} On March 23, 2010, GIW pled no contest to 18 violations of
{¶ 4} Former
{¶ 5} This court discussed compliance with
{¶ 6}
{¶ 7} “(c) No person, agent, firm or corporation shall enter into a contract for the sale of a one, two, three or four unit dwelling building or structure, as defined in Section 363.04, without furnishing to the purchaser a Certificate of Disclosure addressing the condition of the property, which Certificate shall be in a form prescribed by the Director of Building and
{¶ 8} “(d) A request for a Certificate of Disclosure shall be accompanied by a nonrefundable fee of sixty dollars ($60.00).”
{¶ 9} In the instant case, the court explained the following at the plea hearing:
{¶ 10} “These are all Certificate of Disclosure cases where the defendant has allegedly not filed with the City the Certificate of Disclosure which I understand is two parts. One, there is a requirement that any property that transfers in the City of Cleveland there is a Certificate of Disclosure, which is a $60.00 payment to the City. And then secondarily, the City then enters whether there are code violations or the property is condemned, is that correct?”
{¶ 11} The City replied, “Yes, that‘s correct, your Honor.”
{¶ 12} The complaints for each of the 18 violations allege the date GIW sold a specific property without complying with
{¶ 14} Accordingly, GIW‘s first assignment of error is overruled.
{¶ 15} In GIW‘s second assignment of error, it argues as follows:
{¶ 16} “II. The trial court erred in finding Go Invest Wisely guilty of a violation of Section 367.12(c) of the Cleveland Municipal Codified Ordinance[s].”
{¶ 17} Specifically, GIW argues that, as a limited liability company (“LLC“), it could not be found guilty under
{¶ 18} The word “person,” in addition to the obvious reference to a human being, has a legal definition: an entity “* * * that is recognized by law as the subject of rights and duties.” Merriam-Webster‘s Collegiate Dictionary (11 Ed. 2006) 924.
{¶ 19} Additionally, the second sentence of
{¶ 20} Accordingly, GIW is subject to liability under
{¶ 21} GIW‘s third assignment of error states the following:
{¶ 22} “III. The trial court erred in failing to comply with R.C. 2951.03.”
{¶ 23}
{¶ 24} In the instant case, the court ordered a PSI and GIW filed a response, alleging the following factual inaccuracies: 1) the PSI indicated that housing violation notices had been issued for seven of the 18 properties; however, according to GIW, the City previously represented that violation notices had been issued for only one of the 18 properties; 2) the PSI indicated that GIW failed to provide the financial information requested by the Court; however, GIW provided its 2008 federal tax returns; 3) the PSI was “inaccurate in its depiction” of the profit GIW made from selling the 18 properties; and 4) the PSI contained “factual inaccuracies relating to [GIW‘s] impact on the community.”
{¶ 25} On April 29, 2010, the court issued a sentencing order, which included six single-spaced pages of reasoning behind its decision to impose the maximum $5,000 fine per violation. The court referenced the PSI, and GIW‘s arguments in response to the PSI, in determining the appropriateness of this sentence.
{¶ 26} In the sentencing order, the court concluded that seven of the 18 properties had outstanding housing violation notices. The court specifically stated that it based this conclusion on the PSI. However, the court imposed the same fine for all 18 offenses, regardless of actual harm. The court stated, “The goal of the mandatory procedure set forth in
{¶ 27} As to GIW‘s second allegation of factual inaccuracy, the court stated that GIW‘s “tax returns show that it is in the business of buying and selling real estate and has assets of over $7 million.” The court made no other reference to the financial information provided by GIW. As the City points out on appeal, although the court did not use the “magic words” found in
{¶ 28} As to GIW‘s third allegation, we find no factual inaccuracy in the PSI regarding GIW‘s profit in selling the 18 properties. The PSI indicated that GIW purchased the properties for a combined $37,500 and sold them for a total of $71,900, with a gross profit of $34,400. GIW‘s response does not dispute this; rather, it suggests that the court should also “take into account the costs of buying, holding and selling property,” such as GIW‘s spending “more than a thousand dollars on each property to market and try to sell it.”
{¶ 29} Notwithstanding that there was nothing inaccurate in the PSI regarding GIW‘s profit, the court extensively analyzed GIW‘s suggestion that the net, rather than gross, profit
{¶ 30} As to GIW‘s final allegation of factual inaccuracy in the PSI, we find that the court complied with
{¶ 31} Accordingly, we find that the court thoroughly considered the PSI and GIW‘s response, including allegations of factual inaccuracies, in imposing the maximum fine of
{¶ 32} GIW‘s fourth and final assignment of error states as follows:
{¶ 33} IV. “The trial court erred in sentencing Go Invest Wisely to fines that were excessive, disproportionate, and contrary to law.”
{¶ 34} Pursuant to
{¶ 35} GIW argues that the court abused its discretion by not considering the statutory guidelines for misdemeanor sentencing set forth in
{¶ 36}
{¶ 38} Furthermore,
{¶ 39} “(a) The nature and circumstances of the offense or offenses;
{¶ 40} “(b) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender has a history of persistent criminal activity and that the offender‘s character and condition reveal a substantial risk that the offender will commit another offense;
{¶ 41} “(c) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender‘s history, character, and condition reveal a substantial risk that the offender will be a danger to others and that the offender‘s conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences;
{¶ 42} “* * *
{¶ 44} When a misdemeanor sentence is within the statutory limits, there is a presumption on appeal that the court considered the criteria in
{¶ 45} In its sentencing order, the court found that GIW made no effort to comply with
{¶ 46} The court found that “the sheer number of sales made by [GIW] without the requisite Certificate justifies a higher sentence even without a consideration of the circumstances of the sales.” The court found that imposing penalties will deter GIW and other similar sellers from “the irresponsible practice of selling property without complying with the disclosure requirements.”
{¶ 48} The court also opined that GIW‘s neglect was the company‘s regular business practice “and is the standard business practice for the nationwide industry. * * * The Court hopes that the imposition of $90,000 in fines will constitute more than a mere cost of doing business for [GIW]; the Court‘s goal is to deter [GIW] from continuing its illegal business practices in Cleveland or anywhere.”
{¶ 49} The court took into consideration the City‘s recommendation of a $75 fine per offense, but found it inappropriate under the circumstances. $75 is the reduced fine for an individual, non-corporate defendant found guilty of a minor misdemeanor. GIW is a corporate defendant, the offense is a first degree misdemeanor, and the court found substantially more aggravating than mitigating factors. The court also reasoned that a $75 penalty was insufficient to deter property buyers from avoiding the $60 filing fee.
{¶ 51} We find that the court carefully considered the statutory guidelines for misdemeanor sentencing. We are aware that a $90,000 fine for violating a municipal ordinance in the process of a $37,500 business transaction constitutes a significant penalty. However, “[a]bsent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for” the trial court‘s decision. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748. An abuse of discretion is “not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.” Id. Accordingly, we cannot say that the court abused its discretion in sentencing GIW and its final assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
PATRICIA ANN BLACKMON, P.J., CONCURS;
MELODY J. STEWART, J., DISSENTS. (SEE ATTACHED DISSENTING OPINION)
{¶ 52} I respectfully dissent from the decision reached by the majority and would sustain appellant‘s first assigned error. I do not find that the trial court set forth an explanation of the circumstance of the offense required for a finding of guilt.
{¶ 53} At the hearing, the city did not recount on the record the circumstances of the offenses. And as the majority points out, this court has addressed compliance with
{¶ 54} circumstances surrounding the offense sufficient to support a finding of guilt, I would vacate the conviction.