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KW BV, L.L.C. v. City of Euclid

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 8, 2019

KW BV, L.L.C., ET AL., Plaintiffs-Appellants,
CITY OF EUCLID, OHIO, Defendant-Appellee.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-877179.


          Dinn, Hochman & Potter, L.L.C., Benjamin D. Carnahan, and Steven B. Potter, for appellants.

          Kelley A. Sweeney, Director of Law, Laura Rubadue, Assistant Director of Law, City of Euclid, for appellee.



         {¶ 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 decision.

         I. 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 unit rate.

         {¶ 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 challenge.

         II. 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 judgment.

         III. 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.

         IV. Discussion

         A. 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 ...

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