City of Cleveland v. Washington Mutual Bank

2010 Ohio 2219, 929 N.E.2d 1039, 125 Ohio St. 3d 541
CourtOhio Supreme Court
DecidedMay 26, 2010
Docket2009-0441
StatusPublished
Cited by5 cases

This text of 2010 Ohio 2219 (City of Cleveland v. Washington Mutual Bank) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Cleveland v. Washington Mutual Bank, 2010 Ohio 2219, 929 N.E.2d 1039, 125 Ohio St. 3d 541 (Ohio 2010).

Opinions

Cupp, J.

{¶ 1} The issue in this case is whether R.C. 2941.47 authorizes the trial of a corporation in absentia in criminal proceedings in municipal court. For the reasons that follow, we conclude that it does not.

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 [542]*542exterior maintenance of the property. The certified-mail receipt for that summons was accepted by a Deanne Kessler. The bank did not appear at the May hearing.

{¶ 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 R.C. 2941.47 did not authorize a trial in absentia. The court of appeals vacated the conviction, concluding that R.C. 2941.47 did not apply to a charge initiated by a complaint and did not provide for the trial in absentia conducted in this case. Cleveland v. Washington Mut. Bank, 179 Ohio App.3d 692, 2008-Ohio-6956, 903 N.E.2d 384. The court of appeals denied the city’s motion for reconsideration. The appellate court declined to address the question whether R.C. 2941.47 may apply to misdemeanor proceedings initiated by indictment because this case was not brought by indictment.

{¶ 8} The city appealed to this court, and we granted discretionary review on two of the city’s propositions of law: (1) whether R.C. 2941.35 and the rules of statutory construction authorize a misdemeanor trial in absentia when the service and pleading requirements of R.C. 2941.47 have been met and (2) whether R.C. 2938.12 and Crim.R. 43 apply or whether R.C. 2941.47 is conclusive.

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 and statutes concerning misdemeanor charges brought in municipal court.

[543]*543 A. Application of R.C. 29bH7

{¶ 10} The court of appeals held that Washington Mutual’s conviction must be vacated because R.C. 2941.47 — the statute the trial court invoked for its trial in absentia of the bank — did not authorize such a procedure for criminal prosecutions instituted by complaint, as in this case. Washington Mut. Bank, 179 Ohio App.3d 692, 2008-Ohio-6956, 903 N.E.2d 384, at ¶ 8. R.C. 2941.47 provides:

{¶ 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 to 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, R.C. 2941.47 applies in criminal cases against a corporation that were instituted by indictment or information. The statute also provides that “upon failure [of the corporation] to make [an] appearance and answer, the clerk of the court of common pleas shall enter a plea of ‘not guilty.’ ” By its terms, R.C. 2941.47 addresses prosecutions instituted by indictment or information against corporations in the court of common pleas and directs the clerk of that court to enter a “not guilty” plea on behalf of a corporation that has failed to appear.

{¶ 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. Crim.R. 7(A) confirms that “[a] misdemeanor may be prosecuted by [544]*544indictment or information in the court of common pleas, or by complaint * * * in courts inferior to the court of common pleas.” (Emphasis added.)

{¶ 14} However, the court of appeals correctly concluded that R.C. 2941.47 applies to prosecutions against a corporation that were instituted by indictment or information. Because this criminal prosecution was brought by affidavit or complaint in municipal court rather than by indictment or information in common pleas court, R.C. 2941.47 does not apply.

{¶ 15} The city argues that by virtue of R.C. 2941.35, the procedure in R.C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cleveland v. Bryce Peters Fin. Corp.
2013 Ohio 3613 (Ohio Court of Appeals, 2013)
City of Cincinnati v. Deutsche Bank National Trust Co.
897 F. Supp. 2d 633 (S.D. Ohio, 2012)
State v. Homesales, Inc.
941 N.E.2d 1271 (Ohio Court of Appeals, 2010)
City of Cleveland v. Destiny Ventures, L.L.C.
2010 Ohio 2320 (Ohio Supreme Court, 2010)
City of Cleveland v. Washington Mutual Bank
2010 Ohio 2219 (Ohio Supreme Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
2010 Ohio 2219, 929 N.E.2d 1039, 125 Ohio St. 3d 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-cleveland-v-washington-mutual-bank-ohio-2010.