Carlson v. Cincinnati , 2020 Ohio 4685 ( 2020 )

[Cite as Carlson v. Cincinnati, 2020-Ohio-4685.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
RICK CARLSON, : APPEAL NO. C-190631
TRIAL NO. A-1703713
Plaintiff-Appellant, :
vs. : O P I N I O N.
CITY OF CINCINNATI, OHIO, :
Defendant/Third-Party Plaintiff- :
Appellee,
:
vs.
:
TUSCAN HILLSIDE DEVELOPMENT
LLC, :
DAISY CARLSON, :
NOAH CARLSON, :
and :
JEREMIAH CARLSON, :
Third-Party Defendants-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: September 30, 2020
OHIO FIRST DISTRICT COURT OF APPEALS
Hilton Parker LLC, Jonathan L. Hilton and Geoffrey C. Parker, for Plaintiff/Third-
Party Defendants-Appellants,
Paula Boggs Muething, City Solicitor, Erica Faaborg and David M. Lang, Assistant
City Solicitors, for Defendant-Appellee.
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WINKLER, Judge.
{¶1} Appellants Rick Carlson, Carlson’s children, and Carlson’s business
entity appeal the judgment of the trial court ordering them to pay appellee the city of
Cincinnati hundreds of thousands of dollars in unpaid property fines and fees. For
the reasons that follow, we determine that the trial court erred in awarding the city
$2,800 for an unpaid fee from July 2011, because the six-year statute of limitations
had expired on the city’s claim. We affirm the remainder of the trial court’s
judgment.
Background and Procedural Posture
{¶2} Rick Carlson filed the initial lawsuit in this matter in July 2017,
seeking to stay the demolition of a vacant building on one of his properties in the
Fairmount area. The city responded with numerous counterclaims against Carlson,
as well as third-party claims against Carlson’s business entity, Tuscan Hillside
Development LLC, and Carlson’s children, Daisy Carlson, Noah Carlson, and
Jeremiah Carlson (collectively “the Carlson defendants”). The city alleged that the
Carlson defendants owed hundreds of thousands of dollars in fines and fees related
to more than 200 land parcels that they had purchased at public sales. The city
alleged that the Carlson defendants had refused to maintain the properties in
accordance with the city’s municipal code, and that the city had issued numerous
citations to the Carlson defendants, which remained unpaid.
{¶3} The city filed a motion for partial summary judgment, requesting that
the court grant judgment in the city’s favor on its claims against the Carlson
defendants for unpaid civil fines, costs incurred by the city in barricading,
demolishing, and stabilizing numerous properties, nuisance-abatement costs, and
outstanding water-service charges. The city also requested summary judgment on its
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claim for unpaid Vacated Building Maintenance License (“VBML”) fees. The city
supported its motion with an affidavit from Edward Cunningham, the division
manager for the city’s Property Maintenance Code Enforcement Division.
Cunningham averred that the Carlson defendants owned properties at 12 separate
addresses, all which had been ordered vacated or kept vacant, and that the Carlson
defendants had never applied for VBMLs. Cunningham averred that the Carlson
defendants owed $137,800 in VBML fines and fees.
{¶4} The Carlson defendants replied to the city’s motion for partial
summary judgment and opposed the motion on several grounds. In relevant part,
the Carlson defendants argued that the six-year statute of limitations had run as to
the unpaid VBML fees for several of the properties, and that the city had not met its
burden to calculate the amount of unpaid VBML fees and late fees.
{¶5} The city filed a reply in support of its partial-summary-judgment
motion. In its reply, the city asserted that the Carlson defendants owed over
$200,000 in unpaid VBML fees and fines, and that the amount averred by
Cunningham contained a calculation error. The city attached a spreadsheet as an
exhibit to its reply, “Exhibit H,” which contained a detailed breakdown of the license
fees due for each property.
{¶6} The Carlson defendants moved to file a surreply, or alternatively, to
strike the city’s reply brief. The Carlson defendants argued that the city’s request for
an increased amount of unpaid VBML fees in its reply essentially amounted to a new
summary-judgment motion to which the Carlson defendants could not respond.
{¶7} The trial court overruled the Carlson defendants’ motion to file a
surreply and granted the city’s motion for partial summary judgment. Subsequently,
the city filed a notice of dismissal as to several claims. The trial court then entered
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an order requiring all parties to establish which claims, if any, remained pending.
The city and the Carlson defendants requested that the trial court formally dismiss
any remaining claims. The trial court entered an order formally dismissing any
remaining claims that had not been resolved, and this appeal by the Carlson
defendants followed.
The Record Shows the City’s Judgment Against Carlson was Satisfied
{¶8} Before this court addresses the merits of the trial court’s summary-
judgment decision, we must address a jurisdictional issue related to the city’s filing
of a satisfaction of judgment.
{¶9} After the trial court entered its decision granting partial summary
judgment to the city, the city filed certificates of judgment. Approximately nine
months later, an unsigned motion was filed on behalf of all “counterclaim
defendants” requesting to deposit money in an escrow account to obtain a “lien
release.” The trial court denied the motion on several grounds. The city then filed a
notice of satisfaction of judgment and release of lien as to Rick Carlson.
{¶10} Voluntary satisfaction of a judgment renders an appeal from that
judgment moot. Wiest v. Wiegele, 170 Ohio App. 3d 700, 2006-Ohio-5348, 868
N.E.2d 1040, ¶ 12 (1st Dist.), citing Blodgett v. Blodgett, 49 Ohio St. 3d 243, 245, 551
N.E.2d 1249 (1990). “A judgment is voluntarily satisfied ‘where the party fails to
seek a stay prior to the satisfaction of [the] judgment.’ ” Summit Servicing Agency,
L.L.C. v. Hunt, 9th Dist. Summit No. 28699, 2018-Ohio-2494, ¶ 13, quoting
CommuniCare Health Servs., Inc. v. Murvine, 9th Dist. Summit No. 23557, 2007-
Ohio-4651, ¶ 20.
{¶11} In Wiest, the winning party satisfied the judgment through
garnishment, and the appellants did not seek a stay order and did not post a
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supersedeas bond. This court determined that the appeal from that judgment was
moot because “the case was over.” Wiest at ¶ 14; see Kevin O’Brien & Assocs. v.
Baum, 10th Dist. Franklin No. 03AP-1010, 2004-Ohio-2713, ¶ 8 (“Once an order has
been satisfied, the reversal of that order generally affords no real relief.”).
{¶12} Because Rick Carlson did not seek a stay of the judgment and did not
post a bond, and the city then entered a satisfaction of judgment as to Rick Carlson,
the record indicates that Rick Carlson’s appeal is moot.
{¶13} Specifically, the second assignment of error pertains only to Rick
Carlson in which he argues that the trial court erred by failing to reduce the ultimate
judgment against him by $3,500. Although the city agrees that the trial court’s entry
contains what essentially amounts to a clerical error, and the judgment against Rick
Carlson should be reduced by $3,500, this court has no jurisdiction to provide the
requested relief. Thus, we overrule the second assignment of error as moot.
{¶14} Because the record does not indicate that the judgment was satisfied as
to any of the other Carlson defendants besides Rick Carlson, we will address the
merits of the appeal.
Establishing VBML Damages
{¶15} In their first assignment of error, the Carlson defendants argue that
the trial court erred in granting summary judgment based upon evidence that the
city had presented for the first time in a reply brief and in the form of “an unsworn
statement from a city attorney.” The Carlson defendants take issue with the evidence
put forth by the city as to the unpaid fees and fines that the Carlson defendants owed
under the VBML program.
{¶16} According to the city, the city’s VBML program targets vacated and
blighted properties by imposing escalating fees on owners of properties that have
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been ordered vacated or kept vacant for a one-year period or more. The fee owed by
a property owner depends upon the length of time a building has been ordered
vacated or kept vacant. For the first year, a property owner must pay an annual
$900 fee, but during the second year, the fine doubles to $1,800. See Cincinnati
Municipal Code 1101-129.1. For properties that have been ordered vacated or kept
vacant for two to five years, a property owner must pay an annual VBML fee of
$2,700. Id. The amount increases to $3,500 annually for properties that have been
ordered vacated or kept vacant for at least five years. Id.
{¶17} In seeking to establish that the Carlson defendants owed substantial
unpaid VBML fines and fees, the city relied on an affidavit from Edward
Cunningham. Cunningham established that the Carlson defendants owned several
properties subject to the VBML program, and that the Carlson defendants had never
applied for VBMLs as required by the city municipal code.
{¶18} The Carlson defendants opposed the city’s motion in part by arguing
that the city had failed to prove how it reached the calculated amount of VBML fines
and fees that the Carlson defendants allegedly owed. The city responded in its reply
memorandum with Exhibit H, a multi-page spreadsheet containing a breakdown
regarding each property, when the property had been ordered vacated or kept
vacant, and how many years the Carlson defendants had been responsible for
obtaining a VBML.
{¶19} The Carlson defendants do not dispute their responsibility to obtain
VBMLs, nor do they dispute that they failed to obtain the VBMLs. Instead, the
Carlson defendants argue that the total amount of damages in Exhibit H conflicts
with the total amount of damages stated in Cunningham’s affidavit, and that Exhibit
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H contains new evidence that should not have been introduced for the first time in a
reply memorandum.
{¶20} We disagree with the Carlson defendants’ characterization and
argument regarding the city’s Exhibit H attached to its reply memorandum. Once
the city established that the Carlson defendants owned the properties subject to the
VBML program, the dates the properties were acquired, and that the Carlson
defendants had failed to apply for the VBMLs, the trial court was capable of
determining the fees owed by applying the VBML fee-structure contained in the
municipal code. Therefore, the city’s Exhibit H was not newly-introduced evidence,
but a mathematical aid to the trial court.
{¶21} We overrule the first assignment of error.
Statute of Limitations Expired as to Jeremiah’s 2011 Unpaid VBML Fees
{¶22} The Carlson defendants’ third assignment of error asserts that the trial
court erred in holding that the city could recover a 2011 unpaid VBML fee from
Jeremiah Carlson for the property at 2516 Liddell, because the statute of limitations
had run prior to the filing of the city’s third-party claim in August 2017.
{¶23} Both parties agree that the city’s claim for unpaid VBML fees is
governed by R.C. 2305.07, which provides “an action upon a contract not in writing,
express or implied, or upon a liability created by statute other than a forfeiture or
penalty, shall be brought within six years after the cause thereof accrued.” R.C.
2305.07; see City of Cincinnati v. Deutsche Bank Natl. Trust Co., S.D.Ohio No. 1:12-
CV-104, 2016 WL 2897472, *11 (May 18, 2016). Subject to only narrow exceptions, a
cause of action accrues at the time the wrongful act occurs. Bd. of Edn. of Loveland
City School Dist. v. Bd. of Trustees of Symmes Twp., 2018-Ohio-1731, 111 N.E.3d
833, ¶ 33 (1st Dist.). In order to determine if the six-year statute of limitation had
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run prior to August 2017, we must first determine when the 2011 VBML fee became
due.
{¶24} Cincinnati Municipal Code 1101-77.3 provides that a VBML must be
renewed before or on the annual renewal date, and that “[t]he annual renewal date
shall be the anniversary of the date notice of violation is given * * * wherein the
building or portion thereof was initially ordered to be vacated or kept vacant.” If the
VBML is not timely renewed under Cincinnati Municipal Code 1101-77.3, then a late
fee applies. See Cincinnati Municipal Code 1101-129.3.
{¶25} The city initially ordered 2516 Liddell vacated on July 27, 2010.
Applying Cincinnati Municipal Code 1101-77.3, the annual renewal date for the
VBML for 2516 Liddell was July 27, 2011. Coincidentally, Jeremiah acquired 2516
Liddell on July 27, 2011. Thus, Jeremiah Carlson was required to pay the VBML fee
on the day he acquired the property, July 27, 2011, for the annual period covering
July 27, 2011, to July 27, 2012. Because Jeremiah failed to apply for a renewal VBML
prior to the annual renewal date, he was also required to pay a late fee the day after
he missed the annual renewal deadline—or July 28, 2011. Therefore, the city’s claim
against Jeremiah Carlson under Cincinnati Municipal Code 1101-129.3 for the unpaid
2011 VBML fee accrued on July 27, 2011, and the city’s claim for any unpaid VBML
late fee accrued on the following day, July 28, 2011.
{¶26} The city argues that Jeremiah was required to pay the VBML renewal
fee and any late fee “on each and every day from July 27, 2011.” The city’s argument
belies the plain language of Cincinnati Municipal Code 1101-77.3, which provides
that the VBML fee is due on the anniversary of the notice of violation date.
Furthermore, Cincinnati Municipal Code 1101-129.3 provides that if a property
owner fails to pay the VBML fee, renewal, or a related fine, “said amount shall
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constitute a debt due and owing to the city, and the city may commence a civil action
to collect such unpaid debt.”
{¶27} Therefore, the city’s claim against Jeremiah Carlson for the unpaid
July 2011 $1,800 VBML license fee and $1,000 late fee were filed outside of the six-
year statute of limitations.
{¶28} We sustain the third assignment of error.
VBML Escalating Fee Structure
{¶29} In their fourth assignment of error, the Carlson defendants argue that
the trial court erred in applying the escalating VBML fee structure, as provided in
Cincinnati Municipal Code 1101-129.
{¶30} Cincinnati Municipal Code 1101-129.1 provides:
The fee for application for a vacated building maintenance license is
based on the duration of time the building has been ordered vacated or
kept vacated as determined by the following scale:
•$900 for properties that have been ordered vacated or kept vacant for
less than one year;
•$1,800 for properties that have been ordered vacated or kept vacant
for at least one year but less than two years;
•$2,700 annually for properties that have been ordered vacated or kept
vacant for at least two years but less than five years;
•$3,500 annually for properties that have been ordered vacated or
kept vacant for at least five years.
The fee shall be paid at the time of application and deposited in the
building hazard abatement fund. Such rates shall go into effect upon
the effective date of the ordinance which implements the fee structure
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contained in this section. Upon any initial application for a
license, or upon the first renewal of a license following the
implementation of the above-listed fee structure, all persons
shall initially be required to pay the $900 fee, and will
thereafter pay the designated annual fee based on the
graduated rate listed herein.
(Emphasis added.)
{¶31} The Carlson defendants argue that under the bolded portion of
Cincinnati Municipal Code 1101-129.1 above, they were required to pay a $900
VBML fee for the first year of their property ownership, regardless of how long the
property had been ordered vacated or kept vacant.
{¶32} As an initial matter, the city argues that the Carlson defendants waived
their argument regarding the amount of fees due under Cincinnati Municipal Code
1101-129.1, by failing to raise the argument in their initial response to the city’s
partial-summary-judgment motion. The record shows that the Carlson defendants
raised the argument in a motion for reconsideration filed after the trial court’s initial
ruling on the city’s partial-summary-judgment motion, but prior to the entry of final
judgment. The trial court considered the Carlson defendants’ argument regarding
the escalating VBML fee structure and rejected it.
{¶33} Except for claims of plain error, the failure to raise an issue at the trial-
court level acts as a waiver of the issue on appeal. Deutsche Bank Natl. Trust Co. v.
Sopp, 2016-Ohio-1402, 62 N.E.3d 863, ¶ 8 (10th Dist.). Some courts have held that a
party waives an argument on appeal by first raising the argument at the trial-court
level in a motion for reconsideration. Terry v. Hancock-Wood Elec. Coop., Inc., 6th
Dist. Erie No. E-08-060, 2009-Ohio-4925, ¶ 26, citing Shalkhauser v. Medina, 148
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Ohio App.3d 41, 2002-Ohio-222, 772 N.E.2d 129, ¶ 11 (9th Dist). The rationale
behind this rule is that a motion for reconsideration filed after final judgment is a
nullity. Shalkhauser at ¶ 11, citing Pitts v. Dept. of Transp., 67 Ohio St. 2d 378, 379,
423 N.E.2d 1105 (1981).
{¶34} Here, the Carlson defendants raised their argument regarding
Cincinnati Municipal Code 1101-129.1 in a motion for reconsideration filed prior to
the entry of final judgment. Motions for reconsideration filed prior to final judgment
are permissible. Pitts at 380. This principle is consistent with the general rule that a
trial court has continuing jurisdiction to reconsider its interlocutory rulings prior to
entering final judgment. Jackson v. Jackson, 1st Dist. Hamilton No. C-190383,
2020-Ohio-3517, ¶ 7. Therefore, we determine that the Carlson defendants did not
waive their argument regarding Cincinnati Municipal Code 1101-129.1 for purposes
of appeal.
{¶35} Turning to the merits of the Carlson defendants’ assignment of error,
we do not agree with the Carlson defendants’ argument that they were only required
to pay a $900 VBML fee for the first year of their property ownership, regardless of
the length of time the property had been ordered vacated or kept vacant.
{¶36} Under the plain language of Cincinnati Municipal Code 1101-129.1, the
amount of the VBML fee depends upon the length of time a particular property has
been ordered vacated or kept vacant, without regard to the length of time a particular
owner has owned the property. The last sentence of Cincinnati Municipal Code 1101-
129.1 permits a $900 VBML fee for “any initial application for a license, or upon the
first renewal of a license following the implementation of the above-listed fee
structure[.]” Thereafter, property owners “pay the designated annual fee based on
the graduated rate listed herein.” Cincinnati Municipal Code 1101-129.1. In other
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words, upon the adoption and implementation of Cincinnati Municipal Code 1101-
129.1, all property owners had a one-time opportunity to pay the lowest fee amount
of $900 for a VBML application or renewal application. After the first year following
the implementation of the ordinance, however, the graduated-fee structure applied.
{¶37} Therefore, we reject the Carlson defendants’ argument that the $900
VBML fee applied for the first year of their property ownership, regardless of how
many years had passed since the properties were ordered vacated or kept vacant.
{¶38} We overrule the fourth assignment of error.
Conclusion
{¶39} In conclusion, we reverse the trial court’s judgment requiring
Jeremiah Carlson to pay $2,800 for a July 2011 VBML fee and late fee, because the
statute of limitations had expired by the time the city filed its claim. The remainder
of the trial court’s judgment is affirmed. We remand the case to the trial court to
enter judgment consistent with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry this date.
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