Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Ockner & Greenberger, L.L.C., Sheldon Berns, and Majeed
G. Makhlouf, for appellees.
M. Hemmons, East Cleveland Law Director, for appellants.
JOURNAL ENTRY AND OPINION
RAYMOND C. HEADEN, JUDGE.
1} Defendants-appellants, the city of East
Cleveland, Salondra Wallace (Housing Administrator), Anthony
Bumbalis (Building Inspector), Anthony Dizdar (Building
Inspector), and Kimberly Lanum (Housing Inspector),
appeal from the trial court's order granting
plaintiffs-appellees AE Owner L.L.C., Crystal Spires, Ltd.,
and KB Owner L.L.C.'s ("property owners")
motion for summary judgment and enjoining
defendants-appellants from enforcing East Cleveland Codified
Ordinances 1349.05(a). For the reasons that follow, we affirm.
and Substantive History
2} Property owners own rental properties within the
city of East Cleveland. On June 6, 2017, the city of East
Cleveland increased its occupancy fee on rental properties
from $10 to $100 per unit. On December 7, 2017, property
owners filed a complaint against East Cleveland. Pursuant to
R.C. 2723.01 et seq., the action sought to enjoin East
Cleveland from enforcing East Cleveland Codified Ordinances
1349.05(a) and collecting occupancy fees under that section.
On June 1, 2018, competing motions for summary judgment were
filed on behalf of property owners and East Cleveland.
Property owners filed a combined memorandum in opposition to
East Cleveland's motion for summary judgment and
objections to inadmissible evidence in East Cleveland's
motion for summary judgment on July 2, 2018. East Cleveland
filed a reply to that motion on July 9, 2018, but did not
respond to property owners' motion for summary judgment.
On July 23, 2018, the trial court granted property
owners' motion for summary judgment and denied East
Cleveland's motion. East Cleveland filed a timely notice
of appeal on July 24, 2018.
3} Property owners' motion for summary judgment
did not question East Cleveland's ability to impose an
occupancy fee. Property owners challenged the amount and
application of the occupancy fee stating it was an illegal
tax disguised as a fee. East Cleveland did not file a brief
in opposition to property owners' motion for summary
judgment; hence, the court relied exclusively on the property
owners' motion when making its determination. The
evidence presented a fee whose value was not tied to the cost
of an inspection program. The amount of the fee was
determined based upon a comparison of similar fees charged by
neighboring communities. The funds collected in accordance
with the fee were not segregated exclusively for inspection
related activities, but were deposited in the city's
general fund. Based upon the evidence, the trial court
determined the fee as applied to the property owners was
unconstitutional because it was an illegal tax disguised as a
fee. The trial court permanently enjoined East Cleveland from
enforcing East Cleveland Codified Ordinances 1349.05(A)
against the property owners.
4} East Cleveland appeals, presenting the following
assignments of error for our review: "The Trial Court
erred in granting Plaintiffs' Summary Judgment
Permanently Enjoining the City's enforcement of its
Occupancy Fee Ord. 1345.05. The Trial Court violated the
City's right to Equal Protection when it struck down its
law that is permitted by Other Inner Ring Cities in Cuyahoga
County. The Trial Court violated the City's Due Process
When it denied its right to raise the resources required to
support and maintain a rental unit oversight program. The
Trial Court violated the City's Home Rule Authority when
it declared its Occupancy Fee Law unconstitutional."
for Summary Judgment
5} Generally, a trial court's decision to grant summary
judgment is reviewed de novo. Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d
241. The reviewing court conducts an independent review of
the record to determine whether summary judgment is
6} Summary judgment is appropriate under Civ.R. 56 when
"(1) no genuine issue as to any material fact exists;
(2) the party moving for summary judgment is entitled to
judgment as a matter of law; and (3) viewing the evidence
most strongly in favor of the nonmoving party, reasonable
minds can only reach one conclusion which is adverse to the
nonmoving party." Hull v. Sawchyn, 145 Ohio
App.3d 193, 196, 762 N.E.2d 416 (8th Dist.2001). "The
moving party bears the initial burden of demonstrating that
there are no genuine issues of material fact concerning an
essential element of the opponent's case." (Emphasis
omitted.) Dresher v. Burt, 75 Ohio St.3d 280, 292,
1996-Ohio-107, 662 N.E.2d 264. If the moving party fails to
satisfy this burden, the motion for summary judgment must be
denied. Id. at 293. If the moving party satisfies
its initial burden, the nonmoving party must then set forth
specific facts showing that there is a genuine issue for
7} In its first assignment of error, East Cleveland
argues the trial court erred in granting property owners'
motion for summary judgment finding the city's occupancy
fee unconstitutional and therefore enjoining the city from
enforcing the ordinance. We find the occupancy fee is a ...