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Dawson v. City of Richmond Heights

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 5, 2018

JAMES G. DAWSON, ET AL. PLAINTIFFS-APPELLANTS
v.
CITY OF RICHMOND HEIGHTS, ET AL. DEFENDANTS-APPELLEES

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-827596

          James G. Dawson, pro se FOR APPELLANTS

          R. Todd Hunt Benjamin G. Chojnacki ATTORNEYS FOR APPELLEES

          JOURNAL ENTRY AND OPINION

          BEFORE: Kilbane, P.J., Laster Mays, J., and Keough, J.

          MARY EILEEN KILBANE, P.J.

         {¶1} Plaintiffs-appellants, James and Carol Dawson (collectively referred to as "Dawsons"), pro se, appeal from the trial court's decision granting summary judgment to defendants-appellees, the city of Richmond Heights and Philip Seyboldt ("Seyboldt") (collectively referred to as the "City"). For the reasons set forth below, we affirm.

         {¶2} This appeal arises out of the parties' dispute regarding a search warrant obtained by the City to permit dye testing of the sanitary and storm sewer systems located on the Dawsons' property in Richmond Heights, Ohio. "Dye testing" is a process used to determine whether roof water, surface or subsoil drainage or other clean waste, which is generally disposed of through the storm system, is "cross-contaminating" or entering a sanitary sewer system.

         {¶3} Beginning in 2011, the City and the Cuyahoga County Department of Public Works started performing dye tests in the Dawsons' neighborhood to determine the cause of sanitary sewer backups and drainage problems occurring in the city. According to the City, it sent letters to the residents, including the Dawsons, explaining why testing was necessary, the manner of testing to be used, common causes for backups to the sewer system, and contact information for financial assistance if testing found that repairs were necessary.

         {¶4} After nearly two years of testing neighboring properties, Seyboldt mailed a certified letter to the Dawsons in January 2013. The letter informed the Dawsons that only a few properties remained to be tested, and the problem causing backups had been identified as storm water infiltrating the sanitary sewer, which was causing it to backup. The letter advised the Dawsons that if they did not schedule a test, the City may obtain a search warrant to conduct the dye testing.

         {¶5} In September 2013, Seyboldt appeared before a judge of the Lyndhurst Municipal Court and provided a five-page typewritten "Affidavit for Search Warrant" along with accompanying documents, including the City's letter sent to the Dawsons. The court issued the search warrant based upon the affidavit, documents, and Seyboldt's representations that the Dawsons' property is not in compliance with the City's requirements of the streets and public service code and the building code.

         {¶6} Subsequently, the search warrant was served on James by a Richmond Heights police sergeant and Seyboldt. Upon executing the search warrant, the City and the County Department of Public Works performed testing that revealed clean waste water on the Dawson's property was discharging into the sanitary system. The next day, Seyboldt returned an "Inventory of Property Seized" to the court noting that no property was seized.

         {¶7} As a result of the search warrant and testing, the Dawsons filed a nine-count complaint against the City and the Cuyahoga County Department of Public Works in May 2014.[1] In the complaint, the Dawsons seek declaratory judgment, injunctive relief, and equitable restitution arising out of their challenges to an administrative search warrant executed by the city of Richmond Heights and its building commissioner, Seyboldt.[2] The Dawsons allege that the search warrant, issued by the Lyndhurst Municipal Court, violated the Fourth Amendment of the United States Constitution and Article I, Section 14 of the Ohio Constitution. They further allege that Richmond Heights Codified Ordinances Sections 931.03 and 931.99 are unconstitutional ("R.H.C.O. 931.03 and 931.99").[3]

         {¶8} Following discovery, both parties moved for summary judgment. In a thorough 12-page opinion, the trial court concluded that no genuine issues of material fact were in dispute and granted the City summary judgment as a matter of law. The trial court denied the Dawsons' motion for summary judgment. In its opinion, the trial court found that the search warrant was based on probable cause and in compliance with R.C. Chapter 2933, and even if probable cause was lacking, the court has no justiciable controversy to grant relief. The appropriate relief would be suppression of the evidence at a criminal proceeding brought against the Dawsons. The court further found that R.H.C.O. 931.03 is not void for vagueness and the Dawsons' challenge to R.H.C.O. 931.99 is not ripe for judicial review because the Dawsons have not been charged with any violations of R.H.C.O. 931.03. With regard to the Dawsons' request for an injunction and equitable relief, the court found that the Dawsons cannot satisfy the first requirement for an injunction and rejected the equitable restitution claim.

         {¶9} The Dawsons now appeal, raising the following three assignments of error for review:

         Assignment of Error One

The trial court erred to the prejudice of the Dawsons and abused its discretion by denying their motion for summary judgment where the criminal search warrant issued by the Lyndhurst Municipal Court was not based on probable cause, failed to comply with the mandates of [R.C. 2933.01, ] et seq. and Crim.R. 41(C) and was therefore illegal, unconstitutional and void.

         Assignment of Error Two

The trial court erred to the prejudice of the Dawsons and abused its discretion by denying their motion for summary judgment and ruling that [R.H.C.O. 931.03] is constitutional under the void-for-vagueness doctrine.

         Assignment of Error Three

The trial court erred to the prejudice of the Dawsons and abused its discretion by ruling that the "separate offense clause" of [R.H.C.O. 931.99] is legal and constitutional and not in violation of the due process clause and double jeopardy clause of the United States ...

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