Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Hochman & Potter, L.L.C., Benjamin D. Carnahan, and
Steven B. Potter, for appellants.
A. Sweeney, Director of Law, Laura Rubadue, Assistant
Director of Law, City of Euclid, for appellee.
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE.
1} Plaintiffs-appellants, KW BV, L.L.C., et al.
("KW"), appeal the trial court's decision
denying KW's motion for summary judgment and granting a
decision in favor of defendant-appellant, city of Euclid
("Euclid"). We affirm the trial court's
Facts and Procedural History
2} Euclid assesses an annual fee for rental
registration. Single, two-, and three-family homes are
charged an annual fee of $200, and multi-family units or
apartments are charged an annual fee of $35 per unit. KW are
owners of condominium units in Blisswood, Village, located in
Euclid, and are charged an annual fee of $200 per condominium
unit, because Euclid considers condominiums single-family
homes. KW disagrees and contends that they should be
considered a multi-family dwelling entitled to the $35 per
3} In response to the assessment, KW filed a
complaint against Euclid and sought declaratory judgment that
their condominium units were not single, two-, or
three-family homes as defined in the Euclid city ordinances.
KW filed a motion for summary judgment. Euclid opposed KWs
motion for summary judgment. The trial court denied KWs
motion and issued a decision granting judgment for Euclid.
Euclid did not file a cross-motion for summary judgment.
Euclid asserts that the trial court did not have jurisdiction
to entertain KW's complaint because, first, they failed
to join all necessary parties, because KW represents only 45
of the 268 property owners in Blisswood; and second, KW made
claims of unconstitutionality of a city ordinance but failed
to plead that in the complaint and failed to serve the
attorney general with a copy of the constitutionality
Assignments of Error
4} KW assigns two errors for our review:
I. The trial court erred in finding that the subject
condominium units were single-family homes under Euclid
Codified Ordinance 1761.05; and
II. Because Civ.R. 56 did not authorize the trial court to
enter judgment in favor of appellee, a nonmoving party, the
trial court erred as a matter of law in granting summary
Standard of Review
5} We review a trial court's entry of summary
judgment de novo, using the same standard as the trial court.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,
671 N.E.2d 241 (1996). Summary judgment may only be granted
when the following is established: (1) there is no genuine
issue as to any material fact; (2) the moving party is
entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and the
conclusion is adverse to the party against whom the motion
for summary judgment is made, who is entitled to have the
evidence construed most strongly in its favor. Harless v.
Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375
N.E.2d 46 (1978); Civ.R. 56(E).
6} The party moving for summary judgment bears the
initial burden of apprising the trial court of the basis of
its motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of fact on an
essential element of the nonmoving party's claim.
Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d
264 (1996). "Once the moving party meets its burden, the
burden shifts to the nonmoving party to set forth specific
facts demonstrating a genuine issue of material fact
exists." Willow Grove, Ltd. v. Olmsted Twp.,
2015-Ohio-2702, 38 N.E.3d 1133, & 14-15 (8th Dist.),
citing Dresher. "To satisfy this burden, the
nonmoving party must submit evidentiary materials showing a
genuine dispute over material facts." Willow
Grove at & 15, citing PNC Bank v. Bhandari,
6th Dist. Lucas No. L-12-1335, 2013-Ohio-2477.
First Assignment Of Error Part I - the Trial Court Erred in
Dismissing Appellants' Complaint Because Appellants'
Condominium Units are Dwelling Units Within a Building, not
Single-Family Homes; this Genuine Issue of Material Fact
Precludes Dismissal of Appellants' Complaint
7} Euclid Codified Ordinances 1761.05(1) and (2)
states in part, "The applicant
is entitled to one initial inspection and two follow-up
compliance inspections. The fees are as follows: Building
with four or more units. A non-refundable fee of [$35]
per unit. Single, two-, and three-family homes. A
nonrefundable fee of [$200]." Euclid claims that they
interpret condominiums as single, two-, and three-family
homes and apartment complexes as buildings with four or more
units based on various definitions contained in the Euclid
Codified Ordinances. KW argues that because their
condominiums are located within a building with four or more
units, the condominiums should be subjected to the $35 per
unit rate rather than the $200 per unit rate. KW is not
challenging the constitutionality of the ordinance.
8} KW argues that their condominium units should be
treated as apartment units instead of single, two- and
three-family homes. We find that KW is incorrect in their
assertion. The condominium units, unlike apartments, are
considered single dwelling units because they can be owned
and sold individually. Apartments in an apartment complex
cannot. "Under the plain language of R.C. 5311.11, each
condominium unit is 'deemed to be a separate parcel for
all purposes of taxation and assessment of real
property.'" Dublin City Schools Bd. of Edn. v.
Franklin Cty. Bd. of Revision, 139 Ohio St.3d 212,
2014-Ohio-1940, 11 N.E.3d 222, & 17, citing Eastcreek
Corp. v. Cuyahoga Cty. Bd. of Revision, 8th Dist.
Cuyahoga Nos. 53150-53156, 1988 Ohio App. LEXIS 18 (Jan. 7,
1988). Also, "[c]ommon ownership does not transform the
condominium units, collectively, into an apartment complex
particularly when the 'apartment complex' does not
include all of the units in the building." Columbus
City Schools Bd. of Edn. v. Franklin Cty. Bd. of
Revision, 148 Ohio St.3d 700, 2016-Ohio-8375, 72 N.E.3d
637, & 10.
9} As defined ...