Twang, L.L.C. v. CincinnatiTwang, L.L.C. v. Cincinnati
OPINION
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: December 31, 2024
Statman, Harris, Alan J. Statman and William B. Fletcher, for Plaintiff-Appellant,
Emily Smart Woerner, City Solicitor, Jon Vogt, Erica E. Faaborg and Monica Windholtz, Assistant City Solicitors, for Defendant-Appellee City of Cincinnati,
Amy Higgins and Kelley L. Allesee, for Defendant-Appellee Hamilton County Land Reutilization Corporation.
Bock, Presiding Judge.
{1} To address the danger caused by a building that defendant-appellee the City of Cincinnati (“City“) considered “a direct threat to public safety,” the City issued abatement notices to the owner, plaintiff-appellant Twang, LLC. Months later, the City and defendant-appellee the Hamilton County Land Reutilization Corporation (“Landbank“) allowed a construction company to enter the building and begin performing work to make the building safe. Twang sued, seeking declaratory and injunctive relief. Ultimately, the trial court ruled in the City‘s and Landbank‘s favor.
{2} On appeal, Twang challenges the trial court‘s decisions (1) excluding its exрert witnesses from testifying at a preliminary-injunction hearing, (2) denying its request for a preliminary injunction, and (3) granting the City‘s and Landbank‘s motions to dismiss Twang‘s complaint.
{3} First, the trial court acted within its discretion when it excluded Twang‘s experts from testifying at the preliminary-injunction hearing because Twang disclosed their identities to the defendants only two days before the hearing and Twang rejected the trial court‘s offer to continue the hearing to produce expert reports.
{4} Second, the trial court was within its discretion in denying Twang‘s request for a preliminary injunction because Twang failed to establish a likelihood that it would prevail on the merits of its claims. Twang‘s rights were not violated because (1) the City informed Twang of its intent to repair the building more than 30 days before beginning the repairs, (2) Twang failed to appeal the City‘s initial orders and notices of violation of the unsafe conditions, (3) Twang was afforded an informal predeprivation hearing with the City, and (4) the City‘s notices reflect emergency circumstances necessitating prompt action to ensure public safety. Moreover, the public‘s interest in preserving historic structures weighs against enjoining the repairs of a building located within a historic district.
{5} Finally, Twang failed to demonstrate any error in the trial court‘s decision to dismiss its complaint for declaratory relief.
{6} We affirm the trial court‘s judgments.
I. Factual and Procedural History
A. Complaint
{7} This case involves real property owned by Twang at 817-819 Elm Street (“the Building“) in Cincinnati. In March 2023, Twang sued the City and Landbank, seeking declaratory relief and a permanent injunction to prevent the City from repairing the Building and collecting costs for the repairs under
{8} Twang also sought a preliminary injunction and a temporаry restraining order to enjoin the City during the lawsuit.
1. October and November 2022 notices
{9} Twang attached numerous documents and emails to its complaint, including an October 2022 letter from the City to Twang‘s counsel and Heidi Kloos, Twang‘s owner. That letter informed Twang of the City‘s plan to abate “the unsafe and structurally defective conditions at 817-819 Elm Street [] under its authority under
{10} The notices informed Twang that it had “failed to provide for any maintenance despite the City issuing orders identifying myriad [sic] code violations and hazardous conditions” that were “outstanding since 2016.” The City relied on a 2022 report (“Hahn Report“) authored by Robin Hahn, an engineer hired by Twang in 2018 and 2022 to inspect the Building. Twang attached the Hahn Report and the City‘s November 2022 notice to its complaint.
{11} In 2018, Hahn found that the Building “presents a hazard to the public if left unattended due to the concern of portions falling in severe weather.” Hahn‘s 2022 inspection led him to conclude that the Building had “further deteriorated” and, at a minimum, “[t]he four sides of the property should be barricaded to prevent the public from being hurt from the threat of falling debris.”
{12} The City‘s notices informed Twang that the Hahn “report identifies that the owners have neglected [the Building] and that its current conditions presents [sic] a direct threat to the public safety.” The City planned to take “swift action” because Twang failed to deliver on its “promise to take steps to protect innocent passersby from the [Building] during [a] June 15, 2022 meeting and subsequent inspection with the City‘s Chief Building Official.” The City determined that the “continued deterioration of the [Building] without any movement from the owner to stabilize it requires this urgent step to abate a serious threat of collapse оf this historic structure.”
2. The City and Twang‘s correspondence
{13} The complaint included emails between Twang and the City from November 2022 to March 2023. Twang repeatedly asked to see the City‘s repair plans and disagreed with the City‘s conclusions. Twang reminded the City that, “on multiple occasions,” it informed the City that it preferred to demolish the Building. Twang “s[aw] no reason to expend substantial sums in an effort to make significant improvements to the Building which will not result in any economic return to anyone.” In December 2022, the City confirmed that “plans and projected costs do not exist.”
{14} Twang attached a copy of a “Stabilization Agreement” between the City and the Landbank. Because the Building was distressed, dilapidated, and deteriorating,
{15} The “Stabilization Agreement” included the VBML standards, which are codified under
{16} In February 2023, the City emailed Twang as a “follow up” to a January 23, 2023 meeting with Twang. The City forwarded “two bids for repairs” that the Landbank had received. Twang attached a bid from Kaiker Development + Construction, which proposed $622,000 worth of repairs. The bid contained details about the proposed repairs.
{17} Later that month, the City informed Twang of its рlan to proceed with the repairs. At the same time, the City reaffirmed its promise that it had made during the January 2023 meeting to “revisit this position if and when [Twang] submit[ted] a new application to the [Historic Conservation Board].”
{18} In March 2023, Kaiker employees arrived at the Building to begin the repairs. Twang asked the City why Kaiker employees were there “with a contract to do work.” The City‘s response cited Twang‘s failure to either apply to the Historic Conservation Board or stabilize its “dangerous and deteriorating property.” Twang sued later that month.
B. Pretrial filings
{19} The parties agreed to a temporary restraining order that halted all work on the Building through April 28, 2023. In addition, Twang moved for a preliminary injunction, and the trial court scheduled a hearing. The City moved to exclude testimony of Twang‘s two “recently identified” expert witnesses. The City claimed that Twang waited until two days before the hearing to disclose those experts to the City, failed to send expert reports, аnd failed to send one expert‘s resume.
{20} Before the preliminary-injunction hearing, the trial court heard arguments about Twang‘s experts. It granted the motion in limine and excluded Twang‘s experts’ testimony.
C. Preliminary-injunction hearing
{21} Twang‘s owner, Heidi Kloos, testified that Twang had purchased the property in 2014 as part of her vision to build a childhood education center and low-income housing for the Cincinnati community. She knew when Twang purchased the property that the Building was vacant, “in bad shape,” and in the City‘s Ninth Street Historic District. It was in a “generally deteriorated shape” in 2014 and “must have” worsened. It is “at least structurally deficient.” Kloos concluded, after consulting with engineers and architects, that repairing the Building was futile.
{23} Michael Story, Twang‘s manager, testified that Twang had barricaded the Building and had taken some steps to secure open windows and damage to the Building from a car crash. Twang has also locked the Building to prevent trespassers from entering. But as for the VBML, the cost “far exceeded any kind of economic recovery” and Twang “did not do it.” Story and Kloos both testified that repairing the Building “will not have an economic return.”
{24} Story met with the City in June 2022 and thought the City‘s walkthrough later that month was an “inspection.” But the City did not produce a report following its walkthrough, and Story testified that he was blindsided by the City‘s October 2022 letter. Story testified that, beyond the structural issues, the Building lacked drywall, a continuous stairwell, “consistently even floors,” plumbing, and electric wiring. And, Story explained, “If anybody wants to walk through the building, I make them sign a waiver.” Allowing the City to move forward with its plan to repair the Building and assess costs, which could result in a lien and forced sale of the Building, would result in “a financial hardship” for Twang as its investment would be lost.
{25} Art Dahlberg, the City‘s Director of Buildings and Inspections, met with Twang in spring 2022. Twang asked Dahlberg to evaluate the Building‘s emergency-order status to bypass Twang having to apply to the Historic Conservation Board for permission to demolish the Building. While his June 2022 inspection revealed “a lot of structural deficiencies” and Twang‘s failure to protect against “intrusion and weather conditions,” he determined that the structural deficiencies might not require an emergency demolition. He concluded that, while the Building “was a serious hazard,” it did not constitute “an emergency condition.” The evidence includes pictures of the Building‘s interior taken during the June 2022 inspection, showing a “wavy and dipping and failing” floor with a failing substructure, a brick wall failing above a window, and water-damaged lumber, among other issues. He described the deleterious effects of cold weather on masonry and believed that stabilizing the property was necessary to preserve the Building and prevent further deterioration.
{26} Twang has taken no steps to barricade the Building or prevent the public from walking on the nearby sidewalks, though no part of the Building had fallen onto the sidewalks. When the City perceives “eminent peril of something falling off” of a building, it instructs the building‘s owner to take action, and if the owner fails to do so, the City will barricade the building. The City received the Hahn Report in June 2022, but did not barricade the Building in the ensuing weeks.
{27} Dahlberg explained that before any repairs, “plans would need to be submitted” and “[p]ermits would need to be issued” to authorize any construction. The City hаd not issued any permits and Dahlberg
{28} James Brunner, the City‘s Assistant Supervisor of Inspections, is a licensed inspector. He worked on the Building from 2018 to 2022 and took part in the June 2022 walkthrough of the Building. Brunner concluded that Twang had neglected the Building and allowed it to degrade into a state that will “require additional extensive repairs from when my first inspection was.” He concluded, based on his walkthrough and experience with thе Building, that it could be saved.
D. The trial court denied the preliminary injunction
{29} The trial court denied Twang‘s motion at the hearing because Twang failed to show both a likelihood of success on the merits and irreparable harm. First, Twang had been on notice “since at least October . . . that the City‘s plan is to move forward with abatement of the unsafe and structurally defective conditions of 819 Elm.” The City‘s actions were a result of Twang‘s noncompliance with City orders dating back to August 2016, which were still outstanding.
{30} The trial court determined that the Building was unsafe, citing Twang‘s requirement that visitors sign waivers before entering the Building and the Hahn Report‘s conclusion that the Building‘s condition “was a direct threat to public safety.” Plus, it was clear that “the floor is caving in,” windows were unbarricaded, and the masonry was collapsing.
{31} Turning to irreparable harm, the trial court acknowledged the uncertainty surrounding the repair costs, but concluded that “it‘s monetary damages” and “not irreparable harm.” In its entry, the trial court explained that “Twang mаy be irreparable [sic] benefitted by the [City‘s] actions.” Its injury “amounts to no more than a monetary one.” Plus, Twang wanted to demolish the property, so “there is no irreparable harm associated with the unique nature of real property in this case.”
{32} The trial court also found that third-party considerations weighed against Twang‘s wishes. The Hahn Report indicated that the Building was dangerous, so the court refused to enjoin the City “from taking steps that may protect third-parties from injury resulting from the condition of the [Building].” As for the public‘s interest, the trial court determined that Twang did not raise a constitutional challenge to
E. The trial court granted the motions to dismiss
{33} The City and Landbank moved to dismiss Twang‘s complaint. Following oral argument, the trial court granted the motions. It recited the history of the Building and Twang‘s complaint and found that no real controversy exists regarding whether the Building contained unsafe conditions, bringing the Building under the City‘s authority under
II. Analysis
{34} On appeal, Twang raises three assignments of error. First, it argues that the trial court should have allowed its expert witnesses to testify at the hearing. Second, it claims that the trial court erroneously denied its motion for a preliminary injunction because Twang established a likelihood of success on the merits, the repairs and costs would constitute irreparable harm, and there was no evidence of public harm. Third, it maintains that the trial court erroneously dismissed the complaint and erroneously found that the City did not violate its right to due process when it failed to afford Twang the opportunity to be heard.
A. The trial court reasonably excluded testimony of expert witnesses identified two dаys before the hearing
{35} Twang argues that the trial court improperly deprived it of the opportunity to present expert testimony about the Building‘s condition and irreparable harm.
{36} We pause to remind parties that briefs, governed by App.R. 16 and Loc.R. 16.1, must include “legal and factual support for arguments.” Guthrie v. Guthrie, 2024-Ohio-5581, ¶ 12 (1st Dist.). Failing to marshal an “authority-based argument” often carries dire consequences. See Ohiotelnet.com, Inc. v. Windstream Ohio, Inc., 2013-Ohio-4721, ¶ 17 (collecting Supreme Court of Ohio cases); see also Olthaus v. Niesen, 2023-Ohio-4710, ¶ 11 (1st Dist.); Morrison v. Walters, 2022-Ohio-1740, ¶ 14 (1st Dist.); St. Nikola Macedonian Orthodox Church v. Zoran, 2006-Ohio-2561, ¶ 23 (9th Dist.) (collecting Ninth District cases). Twang fails to identify a standard of review and fails to cite legal authority in support of its first assignment of error beyond its argument that Civ.R. 26 and 37, rules that were not cited by the trial court, are inapplicable. See Haldy v. Hoeffel, 2020-Ohio-975, ¶ 35 (3d Dist.) (disregarding an assignment of error where the appellant “assert[ed] no standard of review” and failed to identify legal authority supporting appellant‘s position.). But the parties and the law are better served by resolving appeals on their merits, so we аddress the substance of Twang‘s arguments.
{37} A trial court has broad discretion to admit or exclude evidence, including expert testimony. Blair v. McDonagh, 2008-Ohio-3698, ¶ 28 (1st Dist.). To reverse the trial court‘s decision to exclude expert testimony, we must find that the trial court exercised its discretion “in an unwarranted way.” Stratman v. Durrani, 2023-Ohio-3035, ¶ 13 (1st Dist.), quoting Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. Said differently, a trial court abuses its discretion when its “attitude is unreasonable, arbitrary or unconscionable.” Rummelhoff v. Rummelhoff, 2022-Ohio-1224, ¶ 17 (1st Dist.), quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{38} Before the trial court excluded Twang‘s experts, it noted that Twang had “almost a month” to prepare for the preliminary-injunction hearing, and multiple
{39} Twang argues that the trial court erred when it ruled that Twang should have sought expert opinions before filing the complaint. According to Twang, the trial court‘s decision amounted to a sanction. It maintains that
{40} Twang is correct that evidentiary rules are relaxed in preliminary-injunction hearings. Preliminary injunctions preserve “the relative positions of the parties until a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). Haste is often necessary, and “a рreliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Id. This is why a preliminary injunction may be granted “when it appears to the court or judge by affidavit of the plaintiff, or his agent, that the plaintiff is entitled to an injunction.”
{41} But
{42} Twang informed the City of its experts’ identities two days before the preliminary-injunction hearing. And Twang failed to produce expert reports. The last-minute identification of experts, without expert reports, undermined the City‘s ability to prepare for the preliminary-injunction hearing.
{43} Still more, the trial court offered to stay the preliminary-injunction hearing to give Twang‘s experts an opportunity to complete reports. Twang elected to proceed without its experts because the agreed temporary restraining order was
{44} The trial court offered to stay the proceedings for Twang to produce expert reports, but Twang elected to proceed with the hearing. Because Twang‘s eleventh-hour identification of its expert witnesses deprived the City of a legitimate opportunity to oppose the preliminary injunction, the trial court did not abuse its discretion when it granted the motion in limine and excluded Twang‘s expert witnesses. We overrule the first assignment of error.
B. The trial court reasonably denied the preliminary injunction
{45} In its second assignment of error, Twang argues that the trial court should have granted its motion for a preliminary injunction. Twang fails to identify both the standard of review for an appeal of an order denying a motion for a preliminary injunction and the factors guiding the trial court‘s decision.
{46} With that said, we review the trial court‘s decision to deny Twang‘s motion fоr a preliminary injunction for an abuse of discretion. Castillo-Sang v. Christ Hosp. Cardiovascular Assocs., LLC, 2020-Ohio-6865, ¶ 16 (1st Dist.). Twang must demonstrate that the trial court‘s denial of its motion was an unwarranted exercise of its discretionary authority. See Stratman, 2023-Ohio-3035, at ¶ 13 (1st Dist.). To succeed, Twang must show that the trial court‘s judgment was unreasonable, arbitrary, or unconscionable. See City of Cincinnati v. City of Harrison, 2010-Ohio-3430, ¶ 7 (1st Dist.). At the same time, “courts lack the discretion to make errors of law.” Statev. Austin, 2021-Ohio-3608, ¶ 5 (1st Dist.), quoting Abdullah, 2021-Ohio-3304, at ¶ 39. So, we “review legal issues decided within the injunction framework under a de novo standard.” State v. City of Cincinnati Citizen Complaint Auth., 2019-Ohio-5349, ¶ 21 (1st Dist.).
{47} Injunctions are “extraordinary remed[ies,] equitable in nature, and . . . may not be demanded as a matter of strict right.” Vontz v. Miller, 2016-Ohio-8477, ¶ 54 (1st Dist.), quoting Perkins v. Quaker City, 165 Ohio St. 120 (1956), syllabus. The party seeking a preliminary injunction carries “a substantial burden.” Connor Group v. Raney, 2016-Ohio-2959, ¶ 17 (2d Dist.). The right to a preliminary injunction turns on “‘the strength of plaintiffs’ own case rather than by any weakness of that of his adversary.‘” Escape Ents., Ltd. v. Gosh Ents., Inc., 2005-Ohio-2637, ¶ 22 (10th Dist.), quoting White v. Long, 12 Ohio App.2d 136, 140 (12th Dist. 1967). Injunctive relief “depends on ‘the character of the case, the particular facts involved, and factors relating to public policy and convenience.‘” Aids Taskforce of Greater Cleveland v. Ohio Dept of Health, 2018-Ohio-2727, ¶ 19 (8th Dist.), quoting Cementech, Inc. v. Fairlawn, 2006-Ohio-2991, ¶ 10.
{48} The moving party must show, by clear and cоnvincing evidence, (1) a substantial likelihood of success on the merits, (2) irreparable harm in the absence of a temporary injunction, (3) the injunction poses no risk of unjustifiable harm to third parties, and (4) the injunction serves the public‘s interest. City of Cincinnati v. State, 2024-Ohio-2425, ¶ 23 (1st Dist.), quoting Castillo-Sang at ¶ 16. No single factor is dispositive. Castillo-Sang at ¶ 16. Consistent with the law of equity, the trial court‘s discretionary authority lies in its flexibility when balancing these four factors. Connor Group at ¶ 17, quoting Cleveland v. Cleveland Elec. Illum. Co., 115 Ohio App.3d 1, 14 (8th Dist. 1996).
{49} The trial court found that all four factors weighed against granting the preliminary injunction. Twang disagrees and argues that each factor supported a preliminary injunction.
1. The trial court reasonably found that Twang failed to establish a likelihood of success on the merits of its claims
{50} Twang argues that it showed a substantial likelihood of success on the merits of its underlying request for declaratory relief. First, Twang argues that it would prevail on its claim that the City failed to give notice of, or afford, a predeprivation hearing in violation of Twang‘s due-process rights. Second, it maintains that the City‘s October and November nоtices were insufficient under
{51} The trial court‘s decision denying the injunction incorporated its order granting the City‘s and Landbank‘s motions to dismiss. In its order granting the motions, the trial court made two findings relevant to our analysis. First, it found that the complaint failed to “allege that
{52} The trial court‘s reading of Twang‘s complaint is inconsistent with Ohio‘s notice-pleading standard and Twang‘s allegations. In Ohio, notice pleading requires “a short and plain statement of the claim showing that the party is entitled to relief.”
{53} The complaint alleges that the City‘s notices were “insufficient to advise Twang of its rights, insufficient to permit Defendants to perfоrm any work on the Property, and insufficient to enable Defendants to recoup any costs and expenses from Twang.” Specifically, Twang alleged that its “due process rights” would be violated if the City were allowed to repair the Building and tax costs to Twang. The complaint states that the City‘s actions amounted to a taking of its property “through the subterfuge of stabilization without due process.” Twang also alleged that the City‘s planned repairs exceeded its authority under
{54} The allegations in the complaint, coupled with the correspondence from Twang, put the City on notice thаt Twang sought a declaration of its due-process and statutory rights under the circumstances.
{56}
{57} The trial court reasonably found that Twang was unlikely to prevail on the merits. Beginning with Twang‘s statutory claim,
{58} The City mistakenly failed to send the October 2022 notice to Twang, the property owner. But the City cured that defect with its November 2022 notice addressed to Twang, explaining its plan to abate the defective conditions in the Building and that the “repair of the [Building] will begin thirty days or more from the date of this notice.” In fact, Twang‘s attorney responded to the November 2022 notice and informed the City, “[W]hile we disagree with your initial letter dated October 6, 2022 complied with the notice requirements of the statute, we acknowledge that any possible deficiency has been cured though [sic] the issuance of your November 4, 2022 letter.” Considering the substance of the November 2022 notice and Twang‘s concession, Twang failed to establish a likelihood of success on its claim that the City‘s notices violated
{59} Turning to the likelihood that Twang would prevail on its due-process claim, Twang contends that the City failed to inform Twang of its right to a predeprivation hearing to contest the City‘s plan to repair the Building. The notice requirement in
{60} A meaningful opportunity to
{61} The hallmark of due process is flexibility, as the right “calls for such procedural protections as the particular situation demands.” Gilbert v. Homar, 520 U.S. 924, 930 (1997), quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972). When considering what process is due, courts are reminded that “’ “due process” . . . is not a technical conception with a fixed content unrelated to place, time and circumstances.‘” Id., quoting Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961). The adequacy of the process provided depends on (1) “the private interest that will be affected by the official action,” (2) “the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” and (3) “the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
{62} Twang has an interest in its real property. But the City has an interest in public safety, health, and welfare. See
{63} The evidence produced by Twang at the preliminary-injunction hearing proved that Twang received a letter titled, “NOTICE OF VIOLATION – VACANT BUILDING” from the City‘s Department of Building and Inspections in 2016, informing Twang that the Building was in violation of multiple sections of the Cincinnati Building Code. It informed Twang that it had to take “action necessary” to correct those violations and a failure by Twang “to correct the noted defects within the time specified could result in civil or criminal enforcement actions.” The Building‘s “exterior masonry” was “spalling” and “water damaged,” and the Building was “unsafe and unsanitary.” It also informed Twang of its right to appeal that order. Twang ignored the 2016 ordеr, and
{64} With those orders and violations outstanding for six years, the City and Twang met in June 2022 after Twang‘s engineer determined that the Building had “deteriorated” and certain steps were “mandatory to protect the public.” The emails attached to Twang‘s complaint show that Twang met with the City in January 2023, more than two months after the City gave notice to Twang of its plan to stabilize the Building. The emails demonstrate that the City and Twang discussed the City‘s stabilization plans for the Building and Twang‘s response to the City‘s plans. While repair plans were not finalized at this point, the “Stabilization Plan” and Hahn Report informed Twang of the City‘s safety and structural concerns with the Building. Twang made no repairs and elected to begin applying, for a second time, for authorization from the Historic Conservation Board to demolish the Building.
{65} In sum, Twang waived any right to a formal hearing to challenge the outstanding orders to bring the Building into compliance with the building code. It did not appeal the orders or violations. The City gave notice of its intent to repair the Building in its November 2022 notice. And the City afforded Twang an informal hearing to contest the City‘s actions. Under these circumstances, the informal hearing afforded to Twang was its opportunity to be heard and reduced the risk of an erroneous deprivation. Informal hearings, under the right circumstances, can satisfy due process. See Roberts v. Girder, 237 F. Supp.3d 548, 556 (E.D.Ky. 2017); see also Williams v.City of Stanford, 533 F. Supp.3d 512, 531 (E.D.Ky. 2021); Durham v. City of Lincoln, 2009 Neb. App. LEXIS 147, *13 (Aug. 11, 2009).
{66} As the trial court noted, the crux of Twang‘s objections to the City‘s repairs is Twang‘s “desire[] to have the Property torn down” as a “more cost efficient” measure. At the hearing, it found that Twang purchased the Building, which sits in a historic district, and Twang was attempting to circumvent the building code “by allowing it to deteriorate.” Twang has not explained how a formal predeprivation hearing would safeguard against an errоneous deprivation of its property rights.
{67} Plus, the notices describe the Building as “unsafe and structurally defective,” “hazardous,” and “present[ing] a direct threat to public safety.” Due process is flexible, and “where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause.” Gilbert v. Homar, 520 U.S. 924, 930 (1997). In fact, the United States Supreme Court has “rejected the proposition that [due process] always requires the State to provide a hearing before the initial deprivation of property.” (Emphasis in Gilbert.) Id., quoting Parratt, 451 U.S. 527 at 540.
{68} This principle is reflected by the notice provision in
{69} At the preliminаry-injunction hearing, Twang stressed that the City‘s noncompliance with its own building code supported Twang‘s due-process claim. The City‘s justifications for the repairs reflect the conditions that amount to a “public nuisance” under the Cincinnati Building Code. See
{70} But when “dangerous and unsafe conditions that pose an immediate danger to the public health and safety” exist on a property situated “within a designated Historic District, emergency repairs and compliance with Chapter 1435 of the Zoning Code shall be pursued in lieu of demolition whenever reasonable.”
{71} While Twang claims that the City‘s delay undermines any finding of an emergency, the evidence at the preliminary-injunction hearing shows that City employees worked to secure funding for the repairs from June 2022 to October 2022. After curing its deficient October 2022 notice with its November 2022 notice, it entered into an agreement with the Landbank, fielded bids by contractors, and met with Twang. The contractor attempted to gain entry into the Building to assess thе conditions and finalize the repair plans. The City‘s actions do not undermine its October 2022 determination that the Building was unsafe and structurally defective, presented “a direct threat to the public safety,” and posed “a serious threat of collapse.”
{72} Twang emphasized the City‘s reservation of its right to recover costs under
{73} In sum, Twang‘s complaint sufficed under Ohio‘s notice-pleading standard to allege a due-process claim, in addition to its claim under
2. Twang‘s harm is reparable
{74} Twang also maintains that it proved the need for an injunction to prevent irreparable harm.
{75} A party seeking injunctive relief “must show that the injunction is necessary to prevent irreparable harm.” State v. City of Cincinnati Citizen Complaint Auth., 2019-Ohio-5349, ¶ 25 (1st Dist.), quoting Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267 (1st Dist. 2000). Irreparable harm is “a harm for which no plain, adequate, or complete remedy at law exists.” Gigsmart, Inc. v. Axlehire, Inc., 2023-Ohio-3807, ¶ 66 (1st Dist.), quoting Brookville Equip. Corp. v. Cincinnati, 2012-Ohio-3648, ¶ 23 (1st Dist.). Harm is irreparable if “the harm cannot be remedied through compensatory damages.” Id., quoting Aero Fulfillment Servs., Inc. v. Tartar, 2007-Ohio-174, ¶ 27 (1st Dist.). In other words, the party seeking a preliminary injunction must establish a threatened injury, “““the redress of which, after its occurrence, there could be no plain, adequate and complete remedy at law, and for which restitution would be impossible, difficult or incomplete.““” Ohio Democratic Party v. LaRose, 2020-Ohio-4664, ¶ 60 (10th Dist.), Aids Taskforce, 2018-Ohio-2727, at 52 (8th Dist.), quoting Cleveland Elec. Illum. Co., 115 Ohio App.3d at 12.
{76} Here, the trial court found that “any injury resulting from [the repairs] amounts to no more than a monetary one.” Plus, it found that Twang‘s desire to demolish the Building undermines any alleged “irreparable harm assоciated with the unique property in this case.” We agree.
{77} Twang argues that “[e]ach parcel of real property is unique and has inherent characteristics,” and it purchased the property as part of its commitment to the neighborhood and its desire to “create a legacy.” But both Twang‘s owner and manager testified that Twang‘s decision against repairing the deteriorating structure was a monetary one. Its manager testified that “the cost to acquire the VBML far exceeded any kind of economic recovery.” The decision not to repair the Building “was an economic decision with the architect, construction people, investors, as far as wasting money on something.” Plus, Twang‘s owner testified that Twang has “been trying to sell [the property].” But it did not “want to sell it at a loss.” She testified that stabilizing the Building would not make the property “more valuable.”
{78} Because the alleged irreparable harm was only monetary, the trial сourt reasonably found that Twang failed to
3. Third-party considerations weighed against the injunction
{79} Third, Twang argues that the evidence, when viewed as a whole, shows that a preliminary injunction posed no risk of harm to third parties. The trial court found that the Building “is in a hazardous and dangerous condition” and refused to “enjoin the [City] from taking steps that may protect third-parties from injury resulting from the condition of the [Building].”
{80} Twang argues that the trial court‘s reliance on the Hahn Report ignores the other evidence in the record. It claims that the City‘s inaction after receiving the Hahn Report in June 2022 supports this claim. Twang appears to recognize that the Hahn Report supports the trial court‘s judgment, because the report warned that “[t]he time has come to put public safety to the forefront” because of the potential for falling debris and structural failure. Twang, hоwever, cites testimony of City employees who testified that there was no emergency and the Building was not in imminent danger of collapse.
{81} Twang is correct that Dahlberg testified that the Building was a “serious hazard” but not “an emergency condition” warranting an emergency order of demolition. Specifically, he did not see that there was “immediately failing of the structural elements so that the building would be dropping in the public way or dropping onto adjoining parcels.” But there was evidence that the Building was deteriorating, and both the Hahn Report and City employees warned that the continued deterioration of the Building created a danger. The Hahn Report warned in 2018 that the Building “presents a hazard to the public if left unattended.” By 2022, the Hahn Report observed, the Building had “further deteriorated.” The Hahn Report stated that exposure to the elements undermined the stability of a building because the freezing and thawing process destroys mortar between bricks. The photographs of the Building reflect this deterioration. Dahlberg testified that the freezing and thawing cycle accompanying changes in the seasons and weather destabilizes bricks and can cause walls to fail. Plus, there was testimony that between 2017 and 2020, bricks had fallen off the Building.
{82} The trial court reasonably found that enjoining the repairs of the Building posed a risk of harm to third parties.
4. The preliminary injunction was not in the public‘s interest
{83} Finally, the trial court found that Twang failed to show that a preliminary injunction was in the public interest.
{84} The Building sits in the City‘s 9th Street Historic District. The City‘s historic districts are designed to, among other purposes, preserve Cincinnati‘s history, “maintain and enhance the distinctive character of historic buildings and areas,” preserving landmarks that “reflect elements of [Cincinnati]‘s history, architecture, archaeology, engineering, or culture,” and “maintain the historic urban fabric of the city.”
{85} The trial court reasonably concluded that all four preliminary-injunction factors weighed against granting a preliminary injunction and enjoining the City from proceeding with its repair plans. Because the trial court did not abuse its discretion, we overrule the second assignment of error.
C. Twang failed to show that the trial court erred when it granted the motions to dismiss
{86} In its third assignment of error, Twang argues that the trial court erred when it granted the City‘s and Landbank‘s motions to dismiss. Twang marshals two arguments. First, it argues the merits of its due-process and statutory-violation claims. Second, it maintains that the trial court never declared its rights to due process and notice under the statute.
{87} Twang failed to identify a standard of review for its third assignment of error in its brief. Typically, we review the trial court‘s decision to grant a motion to dismiss de novo. Thomas v. Othman, 2017-Ohio-8449, ¶ 19 (1st Dist.). And typically, dismissal under
{88} But
affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statutе, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.
So, a complaint seeking declaratory relief under
{89} On appeal, we review the trial court‘s dismissal of a declaratory-judgment action for an abuse of discretion. One Energy Ents., LLC v. Ohio DOT, 2019-Ohio-359, ¶ 28 (10th Dist.), citing Heasley at paragraph two of the syllabus. The trial court properly dismisses a complaint seeking declaratory relief if “there is (1) neither a justiciable issue nor an actual controversy between the parties requiring speedy relief, or (2) the declaratory judgment will not terminate the uncertainty or controversy.” M6 Motors, Inc. at ¶ 19; see Fioresi v. State Farm Mut. Auto. Ins. Co., 26 Ohio App.3d 203 (1st Dist. 1985).
{90} A justiciable issue exists if the “the danger or dilemma of the plaintiff [is] present, and . . . not [] contingent on the happening of a hypothetical future event.” Fulton R.R. Co. v. City of Cincinnati, 2016-Ohio-3520, ¶ 9 (1st Dist.), citing Heasley at ¶ 9. An actual controversy exists when there is a
{91} The trial court found that there is no actual controversy over the condition of the Building. The trial court also found that there was no real controversy involving the application of
{92} While Twang argues that the trial court erred when it dismissed its complaint, it fails to raise any argument challenging the trial court‘s finding that there existed no actual controversy. Instead, it argues the merits of its due-process and statutory claims. Appellants have the burden of affirmatively demonstrating error on appeal. Fontain v. Sandhu, 2021-Ohio-2750, ¶ 15 (1st Dist.). As an appellate court, we “will not create an argument in support of an assignment of error where an appellant fails to develop one.” Id.
{93} Because Twang failed to challenge the trial court‘s finding that there was no actual controversy warranting a declaration of the parties’ rights, we overrule Twang‘s third assignment of error.
III. Conclusion
{94} We overrule Twang‘s assignments of error and affirm the trial court‘s judgments.
Judgments affirmed.
Crouse and Winkler, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.