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City of Cleveland v. Go Invest Wisely

October 20, 2011

CITY OF CLEVELAND PLAINTIFF-APPELLEE
v.
GO INVEST WISELY, L.L.C. DEFENDANT-APPELLANT



Criminal Appeal from the Cleveland Municipal Court Case No. 2010-CRB-009822

The opinion of the court was delivered by: Kathleen Ann Keough, J.:

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

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED

BEFORE: Keough, J., Boyle, P.J., and S. Gallagher, J.

{¶1} Defendant-appellant, Go Invest Wisely, L.L.C. ("GIW"), appeals from the trial court's judgment imposing a fine of $915,000 for GIW's failure to comply with the order of the city of Cleveland's Director of Building and Housing to correct multiple violations of the city's building code. We dismiss for lack of a final, appealable order.

I

{¶2} GIW is a company that buys and sells real estate for investment purposes. In April 2010, the City filed a criminal complaint charging GIW with 26 violations of the building code relating to residential property located at 840 East 141st Street in Cleveland. Count 1 of the complaint charged GIW with failure to comply with the order of the Director of Building and Housing, in violation of Cleveland Codified Ordinances 367.99(a) and 3103.25(E). The remaining counts charged GIW with other violations of the building code relating to specific deficiencies in the property (e.g., lack of running water, inadequate sanitary facilities, missing or damaged electrical facilities, etc.). GIW pleaded not guilty and the matter proceeded to a bench trial.

{¶3} Charlene Hatchett, a residential building inspector for the city, testified that on June 26, 2009, she conducted an interior and exterior inspection of the property. Hatchett testified that she observed numerous code violations during her inspection. She observed that the hot water tank and furnace were not working and there was no electricity in the home. Further, she observed structural damage to the porch and front steps, and noted that the garage roof was deteriorated, doors were broken, gutters and downspouts were missing, the driveway needed repair, and there were overgrown hedges around the home. Further, the home was open and not secured. The city sent a violation notice to GIW requiring that the violations be corrected within 30 days of issuance of the notice.

{¶4} Hatchett testified that in the following months, she periodically drove by the property and observed that the exterior violations were not corrected. Hatchett formally inspected the property again on February 26, 2010 and June 15, 2010, one week prior to trial. She noted that the code violations were "pretty much the same and [had] probably gotten a little worse" since her initial inspection. She testified further that GIW had not pulled any building permits to correct the violations nor appealed to the Board of Building Standards or the Board of Zoning Appeals about the violations, and no one from GIW had called the City to request an extension of time to correct the violations. On March 16, 2010, GIW sold the property to another out-of-state investor for $700.

{¶5} The trial court found GIW guilty of failure to comply with an order of the Director of Building and Housing to repair the property and determined that the property was out of compliance from August 27, 2009 until February 26, 2010. At a subsequent hearing, the court imposed the maximum fine of $915,000, or $5,000 per day for the 183 days the property was out of compliance.

{¶6} The trial court subsequently held a hearing regarding the City's request for restitution. It declined to award any restitution after finding that the statutory requirements for such an award were not met.

{¶7} GIW appealed the trial court's judgment. This court sua sponte remanded the matter to the trial court to issue an entry conforming with State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. This court noted that although GIW had been charged with multiple counts relating to building code violations, the trial court's sentencing entry listed only one count and one sentence. Accordingly, to resolve any jurisdictional issues related to the lack of a final, appealable order, this court remanded the matter for the trial court to issue an entry that included the charges on which GIW was convicted, the means of conviction (plea, verdict, or finding by the court), any specifications of which GIW was convicted, and the sentence regarding each count.

{ΒΆ8} Upon remand, the trial court issued an entry stating that "the fine and sentence reflect the finding of guilt and sentence on all of the counts in this case." It then apportioned the ...


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