Carlson v. Cincinnati

2020 Ohio 4685

• Court: Ohio Court of Appeals
• Decided: September 30, 2020
• Docket: C-190631
• Status: Published

Opinion

[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.