Cleveland v. Go Invest Wisely, L.L.C.

2011 Ohio 3242

Opinion

[Cite as Cleveland v. Go Invest Wisely, L.L.C., 2011-Ohio-3242.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95529

CITY OF CLEVELAND

PLAINTIFF-APPELLEE

vs.

GO INVEST WISELY, LLC

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cleveland Municipal Court Case No. 2010 CRB 10702 BEFORE: Stewart, J., Blackmon, P.J., and Sweeney, J.

RELEASED AND JOURNALIZED: June 30, 2011

ATTORNEY FOR APPELLANT

James J. Costello Powers Friedman Linn, PLL 23240 Chagrin Boulevard, Suite 180 Cleveland, OH 44122

ATTORNEYS FOR APPELLEE

Robert J. Triozzi City of Cleveland Law Director

BY: Karyn J. Lynn Assistant Director of Law 601 Lakeside Avenue, Room 106 Cleveland, OH 44114

MELODY J. STEWART, J.:

{¶ 1} Defendant-appellant, Go Invest Wisely, LLC (“GIW”), appeals the

judgment of the Cleveland Municipal Court that found it guilty of violating

Cleveland Codified Ordinances (“C.C.O.”) §367.12(c) and imposed a fine of

$5,000. For the reasons stated below, we affirm. {¶ 2} On April 9, 2010, the city filed a criminal complaint alleging that

GIW sold or transferred the property located at 2588 West 41st Street,

Cleveland, Ohio (“property”) without furnishing a certificate of disclosure, in

violation of C.C.O. §367.12(c), a first-degree misdemeanor under C.C.O.

§367.99(c). GIW entered a plea of not guilty and the matter proceeded to

trial.

{¶ 3} At trial, the city provided certified copies of the records of the

Cuyahoga County Recorder’s Office showing that GIW, a company organized

as a limited liability company in the state of Utah, transferred its ownership

interest in the property to Commodore Housing, LLC, a South Carolina

company, by quitclaim deed on February 18, 2009. The deed was recorded

on May 5, 2009. Antoinette Allen, an assistant administrator for the city’s

Department of Building and Housing Records Administration, testified that a

search of the records verified that the city had not issued a certificate of

disclosure form prior to the transfer of the property. Upon this evidence, the

trial court found GIW guilty of violating C.C.O. §367.12(c), and imposed a fine

of $5,000, the maximum for the offense. GIW timely appeals raising three

errors for our review.

{¶ 4} “First Assignment of Error: The Evidence was Insufficient, as a

Matter of Law, to Find Go Invest Wisely Guilty of a Violation of Section

367.12(c) of the Cleveland Municipal Codified Ordinance[s].” {¶ 5} When reviewing the sufficiency of the evidence to support a

criminal conviction, this court examines the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt. The relevant

inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61

Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

{¶ 6} C.C.O. §367.12(c) provides in pertinent part:

{¶ 7} “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 Housing. No real estate

agent, escrow agent or seller shall sell or transfer a one, two, three or four

unit dwelling building or structure without furnishing to the purchaser

information required by the Certificate of Disclosure described above.”

{¶ 8} GIW contends that the ordinance, by its express language, is

limited in its application to a “person,” “agent,” “firm,” or “corporation.” GIW

argues that because it is a limited liability company, it does not fall within

contemplation of the ordinance and, therefore, it did not have to comply with the requirement of obtaining a certificate of disclosure prior to transferring

the property.

{¶ 9} In construing a statute, a court’s paramount concern is the

legislative intent in enacting the statute. State v. S.R. (1992), 63 Ohio St.3d

590, 594, 589 N.E.2d 1319. To determine the legislative intent, a court must

look to the language of the statute and the purpose to be accomplished. State

ex rel. Pennington v. Gundler (1996), 75 Ohio St.3d 171, 173, 661 N.E.2d

1049. Words used in a statute are to be taken in their usual, normal, and

customary meaning. Id. Unless a statute is ambiguous, the court must give

effect to the plain meaning of a statute. Id. The rules of construction for

ordinances and statutes that define offenses are the same; ordinances

defining offenses or penalties must be strictly construed against the city and

liberally construed in favor of the accused. Highland Hts. v. Grischkan

(1999), 133 Ohio App.3d 329, 334, 728 N.E.2d 4.

{¶ 10} The city of Cleveland’s housing code was adopted “to establish

minimum standards necessary to make all dwelling structures safe, sanitary,

free from fire and health hazards and fit for human habitation and beneficial

to the public welfare” and to “fix responsibilities for owners and occupants of

dwelling structures with respect to sanitation, repair and maintenance.”

C.C.O. §361.02. One of the responsibilities imposed upon dwelling owners is

to obtain a certificate of disclosure, prepared by the city’s building department and providing the dwelling’s code enforcement history, prior to

selling or transferring the property. C.C.O. §367.12(c) requires that this

certificate, or the information provided by the city in the certificate, be

furnished to the purchaser prior to the transfer of the property.

{¶ 11} We are not persuaded by GIW’s argument that the language of

the ordinance demonstrates an intent to exclude limited liability companies

owning property in the city of Cleveland from the requirement of providing a

certificate of disclosure to a purchaser prior to transfer. Black’s Law

Dictionary defines a “firm” as, “Business entity or enterprise,” or

“Unincorporated business.” Black’s Law Dictionary (5 Ed.1979) 571. Thus,

the words employed evidence an intent to include both incorporated and

unincorporated business entities within the ambit of the ordinance. We also

note that in the codified statutes of both Ohio and Utah the definition of

“person” specifically includes a limited liability company. See R.C.

1705.01(K) and Utah Code Ann. 1953 §68-3-12.5(14)(g). Furthermore, the

second part of the ordinance notes obligations in terms of the seller, which

GIW clearly was in this case. Accordingly, we find that C.C.O. §367.12(c)

applies to GIW.

{¶ 12} We also find no merit to GIW’s argument that there was

insufficient evidence that it failed to provide the purchaser with the

information required to be disclosed. The city’s evidence shows that GIW did not obtain a certificate of disclosure from the city for the West 41st Street

property prior to transfer. This infers that GIW did not provide the

purchaser with that which GIW did not obtain. Although it is the city’s

burden to prove each element of the offense, GIW offered nothing to rebut this

inference. GIW does not dispute this evidence or argue that it did comply

with the ordinance. Accordingly, there is sufficient evidence from which a

reasonable trier of fact could conclude beyond a reasonable doubt that GIW

was guilty of violating C.C.O. §367.12(c).

{¶ 13} The first assignment of error is overruled.

{¶ 14} “Second Assignment of Error: The Conviction of Go Invest

Wisely of a Violation of Section 367.12(c) of the Cleveland Municipal Codified

Ordinance was Against the Manifest Weight of the Evidence.”

{¶ 15} Although assigned as a challenge to the manifest weight of the

evidence, GIW raises the same arguments as in its first assignment of error,

claiming that the ordinance does not apply to limited liability companies such

as GIW and that the city failed to provide sufficient evidence for conviction.

Having previously found no merit to these same arguments, we overrule the

second assignment of error.

{¶ 16} “Third Assignment of Error: The Trial Court erred in sentencing

Go Invest Wisely to fines that were excessive, disproportionate, and contrary

to law.” {¶ 17} GIW argues that the trial court erred in imposing the maximum

fine without first considering the factors set forth in R.C. 2929.22.

{¶ 18} It is an abuse of discretion for a trial court to fail to consider the

sentencing criteria set forth in R.C. 2929.22. Richmond Hts. v. Uy (Oct. 19,

2000), 8th Dist. No. 77117. However, “when determining a misdemeanor

sentence, R.C. 2929.22 does not mandate that the record reveal the trial

court’s consideration of the statutory sentencing factors. Rather, appellate

courts will presume that the trial court considered the factors set forth in

R.C. 2929.22 when the sentence is within the statutory limits, absent an

affirmative showing to the contrary.” State v. Nelson, 172 Ohio App.3d 419,

2007-Ohio-3459, 875 N.E.2d 137, ¶12, citing State v. Kelly, 2d Dist. No. 2004

CA 122, 2005-Ohio-3058; see, also, Uy.

{¶ 19} GIW argues that the trial court’s decision to impose the

maximum fine was not based upon consideration of the sentencing factors,

but rather on the court’s preconceived policy of imposing the maximum fine

for any violation of the ordinance. In support of this argument, GIW cites to

State v. Piotrowski, 10th Dist. No. 05AP-159, 2005-Ohio-4550. In Piotrowski,

the defendant entered a guilty plea to an operating a motor vehicle while

intoxicated charge, his first such offense. At sentencing, defense counsel

argued against a jail sentence and provided the court with a number of

mitigating factors. The trial court stated on the record that it had a “policy on first time OMVIs,” and proceeded to impose a sentence that included a jail

term. The appellate court reversed, finding that rather than consider the

lengthy mitigation factors presented, “the plain words the court used

indicated the trial court sentenced defendant pursuant to its preconceived

policy requiring a period of time in jail for OVI offenders.” Id. at ¶8. In the

instant case, GIW fails to make any reference to the record in support of its

claim that the trial court adhered to a “preconceived policy” of imposing only

the maximum fine for violations of C.C.O. §367.12(C).

{¶ 20} The sentence imposed by the trial court is within the limits

authorized by law. As GIW has made no affirmative showing that the trial

court failed to consider the R.C. 2929.22 factors in determining this sentence,

we will presume that it did. Nelson. Accordingly, the third assignment of

error is overruled.

Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cleveland

Municipal Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure. MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, P.J., CONCURS; JAMES J. SWEENEY, J., CONCURS IN JUDGMENT ONLY