Cuyahoga Cty. Land Reutilization Corp. v. Cleveland

2022 Ohio 3916, 199 N.E.3d 1104

• Court: Ohio Court of Appeals
• Decided: November 3, 2022
• Docket: 111096
• Status: Published

Opinion

[Cite as Cuyahoga Cty. Land Reutilization Corp. v. Cleveland, 2022-Ohio-3916.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CUYAHOGA COUNTY LAND : REUTILIZATION CORP., ET AL., : Plaintiffs-Appellants/ Cross-Appellees, : No. 111096

v. :

CITY OF CLEVELAND, ET AL., :

Defendants-Appellees/ : Cross-Appellants. ____

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 3, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-903367

Appearances:

Porter, Wright, Morris & Arthur, L.L.P., Robert J. Karl, Eric B. Gallon, and Jared M. Klaus, for appellants/cross- appellees.

Mark Griffin, Cleveland Director of Law, Elena Boop, Chief Assistant Director of Law, and Shirley Tomasello, Assistant Director of Law, for appellees/cross-appellants.

EMANUELLA D. GROVES, J.:

Plaintiffs-appellants Cuyahoga County Land Reutilization Corp. (the

“Land Bank”) and CLB Services, LLC (“CLB”) (collectively, “Appellants”) appeal the trial court’s ruling finding that an asbestos abatement fee levied by defendants-

appellees city of Cleveland (the “City”), through Merle Gordon, Director of Cleveland

Department of Public Health; and David G. Hearne, Interim Commissioner of

Cleveland Division of Air Quality (collectively, “Appellees”) was authorized under

the Cleveland Codified Ordinances (“C.C.O.”). Cross-appellant City appeals the trial

court’s award of fees. For the reasons that follow, we affirm.

Factual and Procedural History

The Land Bank is a non-profit, government-purposed entity that

acquires blighted properties and either rehabilitates, sells, demolishes, or

determines other beneficial community use for the property. CLB is a wholly-owned

subsidiary of the Land Bank. It contracts with the Land Bank to provide asbestos

surveying and abatement services.

Whenever Appellants demolish a building containing asbestos, the

Ohio Administrative Code requires them to submit a ten-day notice to the Ohio

Environmental Protection Agency (the “Ohio EPA”). The notice informs the Ohio

EPA that the owner or operator of a property is going to begin a “demolition

operation, asbestos stripping or removal work, or any other activity including

salvage activities and preparations that break up, dislodge or similarly disturb

asbestos material * * *.” Ohio Adm. Code 3745-20-03(A)(3)(a). Each ten-day notice

must be accompanied by a $75 fee to the state. R.C. 3745.11(G).

In order to conduct its business throughout the state, the Ohio EPA

works with “local air pollution control authorities” (“LAA”). The city of Cleveland Department of Public Health’s Division of Air Quality (“CDAQ”) functions as the

local air pollution control authority for all of Cuyahoga County.

In its role as an LAA, CDAQ receives, logs, and reviews ten-day

notices submitted for projects in Cuyahoga County. CDAQ is also required to

conduct asbestos regulation, inspections, and enforcement activities on behalf of the

Ohio EPA. Pursuant to a delegation agreement between the City and Ohio EPA,

from 2017-2019 and 2019-2021, CDAQ on behalf of the City was required to inspect

at least 15 percent of demolition and renovation sites in Cuyahoga County and to

attempt to observe asbestos-abatement work in progress. CDAQ was also required

to review demolition permits.

Beginning January 1, 2018, CDAQ’s responsibilities as an LAA

changed. At that time, ten-day notices were required to be submitted directly to the

Ohio EPA Division of Air Pollution Control’s Central Office. However, CDAQ

maintained that they were still required to review ten-day notices and were given

the added responsibility of reviewing the licensing of asbestos contractors.

As compensation for CDAQ’s role as an LAA, Ohio EPA remits 80

percent of each $75 ten-day notice fee to CDAQ for projects within Cuyahoga

County. However, the City is also required to obtain $393,000 in local program

funds for each year of the delegation agreements to maintain an adequate level of

funding. As an acknowledgement that LAA’s must obtain local funding, the ten-day-

notice application contains an advisement as follows: “Please be aware that some

local air agencies may have additional fees.” When the Land Bank demolishes a property in the city of Cleveland,

it obtains a permit from the city of Cleveland’s Department of Building and Housing

(“Building and Housing”). Building and Housing reviews the permit application and

also forwards it to CDAQ for review. CDAQ then cross-checks the application with

the Ohio EPA’s database to confirm that a ten-day notice has been filed. CDAQ also

confirms that the information on the permit application is consistent with the

information in the ten-day notice. CDAQ then signs off on the permit.

Building and Housing collects a fee for demolition permits, a

minimum of $50 for 1-family, 2-family, or 3-family dwelling houses; and a

minimum of $300 for other buildings. CDAQ charges a separate $50 fee for

demolitions that involve asbestos to cover the review of the application and to

conduct any necessary inspections.

On April 2, 2015, Gus Frangos, the Land Bank’s president, wrote a

letter to CDAQ’s Chief of Enforcement, who at the time was Valencia White

(“White”), asking for a written legal explanation of CDAQ’s authority to charge the

$50 local-asbestos fee. White responded by letter on April 13, 2015, noting that

C.C.O. 263.01 authorizes the local-asbestos fee.

On June 27, 2018, CDAQ sent an “Air Pollution Code Order to Abate

for Failure to Pay Building Asbestos Demolition/Renovation Fee” to Cherokee

Demolition (“Cherokee”). The Land Bank had hired Cherokee to demolish four

properties in the city of Cleveland. In the letter, CDAQ indicated that it had sent

three prior invoices to Cherokee that had not been paid. Further, the letter threatened criminal prosecution if payment was not made within seven days of

receipt of the letter. The City alleges that it subsequently sent notices removing the

threat of criminal prosecution for failure to pay the fee.

On September 6, 2018, the Appellants filed a complaint requesting

declaratory and injunctive relief against the City, Merle Gordon, as Director of the

Cleveland Department of Public Health, and David Hearne, as Interim

Commissioner for the Cleveland Division of Air Quality. Appellants requested a

declaration that “the $50 fee imposed by CDAQ on ten-day notices is unauthorized

under the Cleveland Codified Ordinances, as well as the Fourteenth Amendment to

the United States Constitution; and violates the Home Rule Amendment to the Ohio

Constitution, as well as R.C. 3704.11(B).” Further, Appellants requested a

permanent injunction preventing Appellees from taking any further action to collect

the $50 fee.

On December 10, 2018, Appellees filed an answer and

counterclaimed on behalf of the City. Appellees alleged that the fees were authorized

under C.C.O. 263.01(a)(6). The City counterclaimed for unpaid fees totaling

$217,450 for ten-day notices dating back to 2013. Over the course of the litigation,

the City revised the fees, alleging that the Appellants owed $235,038 in unpaid

asbestos fees.

Trial commenced on April 30, 2021. After hearing testimony, the trial

court ruled that C.C.O. 263.01, in conjunction with related ordinances, authorized

the City to assess and CDAQ to collect the local $50 asbestos fee when a demolition permit application is reviewed. The court also found that there was “implied

authority to charge a fee for permitted services of the municipality” and that

Appellees were entitled to deference for their “long-term understanding and

procedures that they have the authority to impose and collect the fee in furtherance

of the health, morals, safety, or welfare of the general public.” The trial court further

found that the $50 asbestos fee was not grossly unreasonable and was, therefore,

constitutional.

With respect to the City’s counterclaim, the trial court ruled that the

fee was “unrelated to CDAQ’s status as [an] LAA under its Declaration Agreement

with the [Ohio] EPA and CDAQ’s review of ten-day notices absent a demolition

permit application.” In other words, the court determined that CDAQ was not

authorized to receive the fee without an accompanying demolition permit

application. The trial court found that the City’s evidence did not distinguish

between ten-day notices that accompanied a demolition permit application and

those that did not. Consequently, the court further found that the City presented

insufficient evidence to support its counterclaim for local-asbestos fees during the

period 2013 through 2017. However, the court found that Appellant’s evidence

established that in 2018, the Land Bank submitted 419 demolition permit

applications accompanied by a ten-day notice. The court determined that the

evidence established that there were $20,950 in unpaid local-asbestos fees for 2018.

Appellants appealed, assigning the following errors for our review: Appellants’ Assignment of Error No. 1

The trial court erred in holding that Appellees are authorized to charge the fee.

Appellants’ Assignment of Error No. 2

The trial court erred in awarding Appellees partial judgment on their counterclaim.

The City cross-appealed and assigned the following errors for review:

Cross-Appellants’ Assignment of Error No. 1

The trial court erred by awarding the City only a partial judgment on its counterclaim — a partial judgment the trial court held was based on only CDAQ’s fees for reviewing applications for a building permit.

Cross-Appellants’ Assignment of Error No. 2

The trial court erred in its calculation of the counterclaim by finding that the City is only entitled to collect a $50 local fee for demolition permit applications submitted for the year 2018, and not also for the other years — 2013-2017.

Law and Analysis

For ease of analysis, we will address the assignments of error in

combination when feasible. In the first assignment of error, Appellants argue that

the $50 asbestos fee was not authorized for three reasons: 1) it is not authorized in

the C.C.O.; 2) CDAQ did not possess implied authority to assess the fee; and 3) even

if deference is given to CDAQ’s interpretation, the ordinances do not support the fee.

In our review of a declaratory judgment action, “legal questions are

subject to a de novo standard of review whereby no deference is given to the trial

court’s decision.” Gill v. Guru Gobind Sikh Soc. of Cleveland, 8th Dist. Cuyahoga

No. 104634, 2017-Ohio-7163, ¶ 29, citing Arnott v. Arnott, 132 Ohio St.3d 401, 2012- Ohio-3208, 972 N.E.2d 586, ¶ 1, 13. The central question in this case is whether the

C.C.O. authorize the $50 asbestos fee. The interpretation of ordinances, like the

interpretation of statutes, is a matter of law, therefore calling for de novo review.

Cleveland v. Jeric, 8th Dist. Cuyahoga No. 89687, 2008-Ohio-1825, ¶ 8.

We begin with a review of C.C.O. 263.01 and related ordinances to

determine whether they authorize the imposition of the $50 asbestos fee. The rules

for reviewing an ordinance are the same as those that apply when reviewing a

statute. “The primary goal of statutory construction is to give effect to the

legislature’s intent.” Yoby v. Cleveland, 2020-Ohio-3366, 155 N.E.3d 258, ¶ 20

(8th Dist.), citing Ayers v. Cleveland, 160 Ohio St.3d 288, 2020-Ohio-1047, 156

N.E.3d 848, ¶ 17. The intent of the legislature is determined by looking at the plain

language of the statute. Id., citing State ex rel. Burrows v. Indus. Comm., 78 Ohio

St.3d 78, 676 N.E.2d 519 (1997).

If the plain language is clear and unambiguous, “we apply the

language as stated without interpretation or construction.” Id. at ¶ 21. Additionally,

ordinances relating to the same general subject matter must be read in pari materia,

i.e., construing them together to give each the proper force and effect. United Tel.

Co. v. Limbach, 71 Ohio St.3d 369, 372, 643 N.E.2d 1129 (1994), citing Maxfield v.

Brooks, 110 Ohio St. 566, 144 N.E. 725 (1924). However, if the language is

ambiguous, “i.e., if the language of the ordinance is susceptible to more than one

reasonable interpretation, we must apply rules of construction to interpret the

ordinance.” Yoby at ¶ 20. The City focuses on C.C.O. 263.01(a)(6), which it cites as

authorization for the $50 asbestos fee. That ordinance states, in pertinent part,

(a) Fees for the examination of plans and applications for the issuance of permits, variances, and for the original inspection and permit to operate for the installation, and modification of any air contaminant source or control equipment, within the jurisdiction of this code, and renewal of permits to operate shall be as follows:

Permit to Install or Modify and Renewal Permit to Operate Initial Permit to Operate and Variance (6) Any Other Air Contaminant $100.00 $50.00 Source. Any other air contaminant source and not included in the above schedule

The City suggests that the term “any air contaminant source” includes

asbestos emitted during demolition or asbestos abatement work. A review of the

codified ordinances supports this argument. Asbestos is defined as a hazardous air

pollutant, i.e., an air contaminant that can cause serious and irreversible or

incapacitating reversible illness to the public, under C.C.O. 281.01(a) and (b). A

“source” includes any “building, structure, facility, operation, installation, other

physical facility or real or personal property, which * * * may emit any air pollutant.”

The code further recognizes that asbestos emissions during demolition should be

strictly regulated to prevent public exposure to the pollutant. C.C.O. 281.03(b).1

1Cleveland Codified Ordinances 281.03(b) states, “No person shall cause or allow the demolition of any building or structure, or parts thereof, where a risk of public exposure to asbestos fibers from the dislodging of asbestos containing materials is present, or without obtaining a permit to demolish from the Commissioner of Building, as required by Section 277.02(a). Adequate precautions to prevent or reduce asbestos dust emissions shall be taken as prescribed in Section 277.02(a).” Looking back at C.C.O. 263.01(a)(6), we note that it only references

permits to “install or modify” and does not specifically mention demolition or

asbestos abatement. However, the word “[m]odify” is defined as “[a]ny physical

change in * * * a source of air pollutants that * * * [r]esults in the emission of any

type of air pollutant not previously emitted.” C.C.O. 251.37.

Based on the foregoing, it is clear that “any other air contaminant

source” includes asbestos emissions that occur during demolition or asbestos

abatement activities. As such, C.C.O. 263.01(a)(6) authorizes a fee for “the

examination of plans and applications for the issuance of permits, variances, and for

the original inspection and permit to operate for the installation and modification

of any air contaminant source or control equipment * * *.”

Nevertheless, Appellants argue that they are exempt from the fees

listed in C.C.O. 263.01. They allege that C.C.O. 261.02 provides that the

requirements of Chapters 257 and 259 (which govern CDAQ permits) do not apply

to the “demolition of buildings.” Consequently, the Appellants suggest that they are

not required to pay the fee required by C.C.O. 263.01(a)(6) because C.C.O. 261.02

exempts them from obtaining a permit from CDAQ.

This argument, however, ignores that C.C.O. 261.02(a)(2) specifically

provides that “[p]ermits may be required for [demolition of buildings] under the

provisions of Chapters 277 and 281.” Further, the argument fails because C.C.O.

261.02 does not preclude the City from assessing fees. It merely states that: (a) The provisions of Chapters 257 [installation and modification permits] and 259 [operation permits and variances] shall not apply to the following classes of sources:

***

(2) Demolition of buildings, authorized open burning, sandblasting and/or building cleaning, spray applications of fiberated cementitious products and spraying of asbestos containing products. Permits may be required for such operations under the provisions of Chapters 277 and 281;

* * *.

Examining the plain language of C.C.O. 261.02, we find that it simply

indicates that someone obtaining a demolition permit is not required to also obtain

a permit from CDAQ. It further acknowledges that a permit may be required under

other provisions of the code. As noted previously, C.C.O. 281.03(b) and 277.02(a)

and (b) require the acquisition of a demolition permit from Building and Housing

whenever demolition poses a risk of public exposure to asbestos fibers and requires

CDAQ review.

It is clear that part of the process of acquiring a demolition permit

includes CDAQ’s review of the application. The purpose of CDAQ’s review is to

determine whether asbestos emissions are properly addressed. Furthermore,

C.C.O. 263.01(a)(6) unambiguously allows the City to collect a fee for that review

when a demolition permit is obtained. Consequently, we agree with the trial court’s

finding that the codified ordinances authorize the imposition of the $50 asbestos

fee. The trial court also found that the fee was allowed because the City

had “implied authority” to assess the fee for its services. “Where the authority is

lodged in the municipality to inspect and regulate, the further authority to charge a

reasonable fee to cover the cost of inspection and regulation will be implied.”

Prudential Co-op. Realty Co. v. Youngstown, 118 Ohio St. 204, 160 N.E. 695 (1928).

However, the fees must not “be grossly out of proportion to the cost of inspection

and regulation.” Id. Appellants do not challenge the holding in Prudential;

however, they argue that “there is no ordinance authorizing CDAQ’s fee.”

Specifically, Appellants argue that the city of Cleveland’s charter rejects implied fees

and that without an ordinance expressly permitting the fee, the City cannot assess

it. The City’s charter provides “that the City shall exercise all powers ‘* * * in the

manner prescribed by this charter, or when not proscribed herein, in such manner

as shall be provided by ordinance or resolution of council.’” Cleveland v. Riebe, 8th

Dist. Cuyahoga No. 34889, 1976 Ohio App. LEXIS 7241, 7 (July 29, 1976.), quoting

the Cleveland City Charter Section 1.

In the instant case, contrary to the Appellants’ assertion, the codified

ordinances authorize the fee; therefore, we need not determine whether the fee is

implied in this assignment of error. The fee is explicitly authorized.

Finally, Appellants argue that the trial court erred in giving deference

to CDAQ’s interpretation of the applicable ordinances. “It is a fundamental tenet of

administrative law that an agency’s interpretation of a statute that it has the duty to

enforce will not be overturned unless the interpretation is unreasonable.” State ex rel. Clark v. Great Lakes Constr. Co., 99 Ohio St.3d 320, 2003-Ohio-3802, 791

N.E.2d 974, ¶ 10, citing Northwestern Ohio Bldg. & Constr. Trades Council v.

Conrad, 92 Ohio St.3d 282, 750 N.E.2d 130 (2001). Appellants argue that the City’s

witnesses were not able to explain how the applicable ordinances govern the fee.

Ultimately, the trial court’s decision was based on its independent determination

that the fee was authorized by the ordinances. The trial court gave deference to

CDAQ’s determination to assess the fee, not its interpretation of the ordinances

themselves. We agree with the trial court’s analysis of the applicable ordinances and

find that the fee is authorized.

Accordingly, we overrule the Appellants’ first assignment of error.

In the Appellants’ second assignment of error and the City’s first

cross-assignment of error, the parties both argue that the trial court erred in

awarding the City partial judgment on its counterclaim. Appellants argue that the

fee is not authorized by ordinance and, therefore, the trial court erred in awarding

any fees. This court has already found that the City was authorized to impose the

fee. However, we must address the City’s challenge to the trial court’s limitation of

the fee.

The City argues that the trial court erred in limiting the fees to cases

where a demolition permit was obtained. It maintains that any time a ten-day notice

was issued, it triggered an inspection, allowing it to assess a fee under C.C.O.

263.01(a)(6), regardless of whether a demolition permit was also obtained.

Furthermore, the City argues that it performed duties for the city and as an LAA for the state, justifying the fee. Therefore, the City suggests that the trial court erred in

limiting the fee to only those instances where the evidence proved that a demolition

permit had been issued.

Prudential established that “[w]here the authority is lodged in the

municipality to inspect and regulate, the further authority to charge a reasonable fee

to cover the cost of inspection and regulation will be implied.” Prudential Co-op.

Realty Co., 118 Ohio St. 204, 160 N.E. 695. However, that power may be limited.

The Ohio Supreme Court recognized that a municipal charter may simultaneously

give broad powers to the legislative body and “also contain specific prohibitions and

restrictions upon the exercise of those powers.” State ex rel. Plain Dealer Publ. Co.,

v. Barnes, 38 Ohio St.3d 165, 527 N.E.2d 807 (1988). The court noted that the city

of Cleveland’s charter limited the City’s power such that “all powers ‘* * * whether

expressed or implied, shall be exercised and enforced in the manner prescribed by

this Charter * * *.’’’ Id at 167-168, quoting the Cleveland City Charter Section 1. In

that case, the authority of the city council to hold private meetings was addressed.

The court found that the city council’s power was limited by the charter to those

powers explicitly listed in the charter or in the ordinances and/or resolutions of the

council. Id. Therefore, the court found that city council did not have implied

authority to act when another more specific section of the charter mandated

different requirements. Id. In the instant case, therefore, the City’s implied

authority to issue a fee for its regulatory role over asbestos admissions is determined

by the language in the code. The administrative code for the City defines the duties of CDAQ’s

commissioner as follows:

The Commissioner of Air Quality shall administer and enforce the ordinances of the city of Cleveland relating to air quality; confer, as appropriate, with state of Ohio and federal agencies in regard to environmental matters; plan, manage and implement divisional air program and policies; develop environmental policy recommendations; supervise the preparation of air pollution permits, including enforcement and compliance monitoring; oversee all relevant environmental issues; supervise enforcement, monitoring, permitting and information control; and perform such other duties as may from time to time be required by ordinance or the Director of Public Health.

C.C.O. 141.23

Further, the City’s Air Pollution Code gives the commissioner

authority to “adopt, amend, or alter written rules and regulations of [the Air

Pollution] Code” as long as such rules and regulations don’t conflict or waive any

provision of the Air Pollution Code or any other section of the codified ordinances.

C.C.O. 255.07(a). The commissioner may do so by following the procedure in C.C.O.

255.07(b) and (c). The commissioner may also “[c]ollect and remit to appropriate

City officials’ fees collected and permits to operate variances and examination of

plans and permits to install.” (Emphasis added.) C.C.O. 255.02(k). However, the

code does not authorize the commissioner to set fees without following proper

procedure. A review of C.C.O. 263.01 is required to determine whether it authorizes

fees as suggested by the City.

C.C.O. 263.01 provides: Fees for the examination of plans and applications for the issuance of permits, variances, and for the original inspection and permit to operate for the installation and modification of any air contaminant source or control equipment, within the jurisdiction of this code, and renewal of permits to operate shall be as follows

In the ordinance, the word “fees” is followed by a series of

prepositional phrases. According to the rule of the last antecedent, ‘‘‘“a limiting

clause or phrase * * * should ordinarily be read as modifying only the noun or phrase

that it immediately follows.””’ Salisbury v. FERC, 36 F.4th 1164, (D.C.Cir.2022),

quoting Lockhart v. United States, 577 U.S. 347, 136 S.Ct. 958, 194 L.Ed.2d 48

(2016), quoting Barnhart v. Thomas, 540 U.S. 20, 124 S.Ct. 376, 157 L.Ed.2d 333

(2003). In this rule, each prepositional phrase in the ordinance modifies the noun

right before it. A good way to illustrate this concept is through a series of questions:

Fees? What type of fees?

Fees for examination.

Fees for the examination of what?

The examination of plans and applications.

The examination of plans and applications for what?

For the issuance of permits, variances, and for the original inspection and permit to operate for the installation and modification of any air contaminant source or control equipment, within the jurisdiction of this code, and renewal of permits to operate.

The foregoing analysis illustrates that the ordinance does not

authorize fees solely for the examination of plans and applications, but for the

examination of plans and applications for the various types of permits listed. Accordingly, the trial court was correct in determining that the City was only entitled

to fees in conjunction with a permit.

The City, however, argues that its responsibilities as an LAA for the

Ohio EPA as well as its responsibilities under the codified ordinances entitle it to

assess the fee for every ten-day notice issued, regardless of whether a permit is

obtained. This argument, however, fails. The trial court did not find that the City

was unable to assess such a fee, rather it found that the C.C.O. as currently written

do not authorize the fee except when a permit is obtained. We agree with this

conclusion.

As noted, the powers of the City, pursuant to its Charter, are either

contained in the Charter itself or codified in the ordinances or by resolution of

council. The ordinance in question, C.C.O. 263.01, does not include fees for CDAQ’s

role as LAA or the other duties CDAQ performs in order to prevent asbestos air

pollution. Therefore, we agree with the trial court’s finding that the City was only

authorized to assess the $50 asbestos fee when both a ten-day notice requiring

CDAQ review and a demolition permit was obtained.

Accordingly, we overrule Appellants’ second assignment of error and

overrule the City’s first cross-assignment of error.

In the City’s second cross-assignment of error, the City argues that

the trial court erred in failing to order Appellants to pay fees for the fiscal years 2013

through 2017. The trial court found, after a review of the evidence, that the City did

not distinguish between asbestos abatement activities that required a demolition permit and asbestos abatement activities that did not require a demolition permit

during that period of time. The only evidence that addressed demolition permits

was provided by Appellants, and that evidence only covered the 2018 fiscal year.

Based on the foregoing, the trial court determined that the City provided insufficient

evidence to support its counterclaim for the fiscal years 2013 through 2017. Based

on the evidence that was provided, the court found that Appellants owed the City

$20,950 in fees for fiscal year 2018.

The question is whether there was sufficient evidence presented to

support the City’s counterclaim for unpaid fees. Therefore, we must determine

whether the trial court was correct in finding that there was insufficient evidence to

support the City’s counterclaim.

“Sufficiency” is

‘“a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.’’’ * * * In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law.

(Emphasis deleted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

N.E.2d 517, ¶ 11, quoting State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d

541 (1997), quoting Black’s Law Dictionary 1433 (6th Ed. 1990) .

To determine whether sufficient evidence has been presented,

“appellate courts review the evidence presented in the light most favorable to the

[party with the burden of production] to determine whether [they] presented some

evidence going to all elements of claim or offense.” L.M.W. v. B.A., 2022-Ohio-2416, 191 N.E.3d 1240, ¶ 18 (8th Dist.), citing Vega v. Tomas, 8th Dist. Cuyahoga No.

104647, 2017-Ohio-298, ¶ 9.

Le’Kisha Robinson (“Robinson”) the information control specialist

for CDAQ collected and presented the City’s evidence on the number of ten-day

notices the Land Bank filed during the period between 2013 and 2018. Robinson

identified 5,107 projects for which Appellants filed ten-day notices. She did not have

access to determine the number of ten-day notices that were accompanied by a

demolition permit application. Robinson also noted that sometimes only an

asbestos abatement notice was filed but no demolition permit. Consequently, the

City did not provide the trial court with any demolition permits for the fiscal years

2013 through 2017. Without that information, the trial court appropriately found

that the evidence was insufficient to support granting the City’s counterclaim for the

applicable years.

Accordingly, we overrule the City’s second cross-assignment of error.

Judgment affirmed.

It is ordered that Appellants and Appellees share costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

_ EMANUELLA D. GROVES, JUDGE

SEAN C. GALLAGHER, A.J., and EILEEN A. GALLAGHER, J., CONCUR