Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Bashein & Bashein Co., L.P.A., W. Craig Bashein, and John
P. Hurst; Paul W. Flowers Co., L.P.A., Paul W. Flowers, and
Louis E. Grube; The Dickson Firm, L.L.C., Blake A. Dickson,
for plaintiffs-appellees/cross-appellants, Janine Lycan, et
Barbara A. Langhenry, Cleveland Director of Law, and Gary S.
Singletary and Craig J. Morice, Assistant Directors of Law,
for defendant-appellant/cross-appellee, City of Cleveland.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, ADMINISTRATIVE JUDGE.
1} In this consolidated appeal, both the
plaintiffs-appellees/cross-appellants, Janine Lycan, et al.
(the "class") and
defendant-appellant/cross-appellee, the city of Cleveland
(the "City"), appeal the trial court's decision
awarding final judgment to the class in the amount of $4,
121, 185.89 and denying the class's request to award an
additional amount of $1, 841, 563.51 as the time-value of the
funds that were wrongfully withheld. For the reasons set forth
below, we affirm.
2} The instant appeal has had a long procedural
history spanning over ten years and arises from the
City's use of automated traffic cameras. Cleveland
Codified Ordinances ("CCO") 413.031 imposes
liability on the "owner of a vehicle" committing a
red-light or speeding offense. CCO 413.031(b) and (c). The
ordinance formerly defined "vehicle owner" as
"the person or entity identified by the Ohio Bureau of
Motor Vehicles, or registered with any other State vehicle
registration office, as the registered owner of a
vehicle." Former CCO 4310.031(p)(3).
3} In Dickson & Campbell, L.L.C. v.
Cleveland, 181 Ohio App.3d 238, 2009-Ohio-738, 908
N.E.2d 964, ¶ 50 (8th Dist), this court concluded, based
on the plain meaning of "vehicle owner," that
former CCO 413.031 did not impose liability on vehicle
lessees. In light of Dickson & Campbell, the
City subsequently amended CCO 413.031, effective March 11,
2009. The ordinance now states that a "vehicle
owner" includes the "lessee" of a leased or
rented vehicle. CCO 413.031(p)(4).
4} The underlying class action is a result of this
court's ruling in Dickson & Campbell The
facts and procedural history, after the filing of the class
action, can be found in the City's appeal to the Ohio
Supreme Court in Lycan v. Cleveland, 146 Ohio St.3d
29, 2016-Ohio-422, 51 N.E.3d 593 ("Lycan III
After the Dickson & Campbell decision was
announced, Lycan filed a class-action complaint on February
26, 2009, in Cuyahoga County Court of Common Pleas
challenging Cleveland's imposition of fines against
vehicle lessees under former CCO 413.031. An amended
class-action complaint, filed on May 28, 2009, added Pavlish,
Task, Charna, Fogle, and Murphy as named plaintiffs. The
amended complaint alleged that each of the plaintiffs
received a notice of liability from Cleveland stating that an
automated traffic camera had identified the vehicle described
and pictured in the notice as the vehicle being driven during
the commission of a red-light or speeding offense. Plaintiffs
alleged that they had leased the vehicles identified in the
notices of liability but were never the vehicles'
Instead of filing a notice of appeal and requesting a hearing
to challenge their tickets, Lycan, Pavlish, Charna, and Fogle
paid the $100 fine. Murphy received five notices of liability
and paid a reduced amount for one ticket; Cleveland agreed to
accept this as payment in full for all five tickets. Task
received notices of liability for two separate speeding
violations. Task did not pay the fines for either ticket and
subsequently received a demand for payment of $320 in fines
In their complaint, plaintiffs contended that Cleveland had
no authority under the former version of CCO 413.031 to
collect fines from plaintiffs as vehicle lessees. As relief,
plaintiffs sought the following: (1) disgorgement, under an
unjust-enrichment theory, of fines paid to the city, (2) an
injunction preventing Cleveland from enforcing the ordinance
against vehicle lessees, and (3) declaratory relief.
Plaintiffs also filed a motion for class certification.
On November 24, 2009, the trial court granted Cleveland's
motion for judgment on the pleadings, finding that plaintiffs
had waived the right to pursue judicial remedies by paying
their fines and failing to appeal their citations as
permitted by CCO 413.0319(k). In the same order, the trial
court denied plaintiffs' class-certification motion.
Plaintiffs' appeal to the Eighth District
Plaintiffs appealed to the Eighth District Court of Appeals.
The appeals court affirmed the trial court's judgment
dismissing plaintiffs' claim for injunctive relief,
finding that an injunction would serve no purpose because the
offending ordinance has since been repealed. Lycan v.
Cleveland, 8th Dist. Cuyahoga No. 94353, 2010-Ohio-6021,
¶ 9 ("Lycan I"). But the appeals
court reversed the trial court's dismissal of
plaintiffs' claims for restitution and declaratory
relief. Id. at ¶ 8, 10. The court found that
plaintiffs' failure to challenge the fines before payment
did not necessarily foreclose plaintiffs from proving a set
of facts under which it would be unjust for Cleveland to
retain the paid fines. Id. at ¶ 8. The appeals
court also reversed the denial of plaintiffs'
class-certification motion and remanded for further
proceedings on that question. Id. at ¶ 11.
This court declined jurisdiction over Cleveland's
discretionary appeal. 128 Ohio St.3d 1501, 2011-Ohio-2420,
947 N.E.2d 683.
Remand to the trial court
On remand, and after completion of discovery, the trial court
addressed the parties' competing motions for summary
judgment on plaintiffs' unjust-enrichment claim. In
support of its motion, Cleveland argued that the
administrative process provided an adequate remedy to those
receiving civil notices of liability and that the doctrine of
res judicata therefore precluded review of the class's
unjust-enrichment claim. More specifically, Cleveland argued
that its notices of liability, combined with the opportunity
to participate in the administrative-appeals process,
constituted quasi-judicial administrative proceedings from
which the preclusive effect of res judicata arose.
In an order dated February 8, 2013, the trial court granted
partial summary judgment for plaintiffs. The court's
entry consisted of two lines. The first line stated that
plaintiffs' "[motion] for partial summary judgment *
* * filed 7/25/2012, is granted." The second line of the
order set a hearing date on plaintiffs' motion for class
certification and appointment of class counsel. The order
contained no other findings of law or fact. Cleveland did not
seek interlocutory review of this order by or before the
March 11, 2013 appeal deadline. See Ohio App.R. 4(A)
(providing that a notice of appeal must be filed within 30
days of a judgment entry).
The trial court held a class-certification hearing on
February 19, 2013. Cleveland did not assert res judicata in
its memorandum opposing class certification or at the
class-certification hearing. On February 26, 2013, the court
granted class certification and found that plaintiffs met the
seven requirements of Civ.R. 23. The court certified the
following class: "All persons and entities who were not
a 'vehicle owners' under CCO 413.031, but were issued
a notice of citation and/or [assessed] a fine under that
ordinance, prior to [M]arch 11, 2009, by/or on behalf of
Defendant, City of Cleveland." The class-certification
order contains no discussion of res judicata.
Cleveland's appeal to the Eighth District
On March 27, 2013, pursuant to R.C. 2505.02(B)(5), which
allows immediate appeal of a class-certification order,
Cleveland appealed the February 26, 2013 order to the Eighth
District. Cleveland's first assignment of error addressed
the February 26, 2013 class-certification order and raised
two arguments: that plaintiffs failed to meet the
requirements of Civ.R. 23 and that res judicata precluded
class relief. Cleveland's second assignment of error
alluded to the February 8, 2013 partial-summary-judgment
order. However, Cleveland did not address the
summary-judgment order in its brief.
From the outset, the court distinguished the two orders and
noted that the February 8, 2013 partial summary judgment was
"not yet appealable" and was "not addressed in
the substance of [Cleveland]'s brief." Lycan v.
Cleveland, 8th Dist. Cuyahoga No. 99698, 2014-Ohio-203,
6 N.E.3d 91, ¶ 12 ("Lycan II"). The
court therefore limited its review to the class-certification
order: "the issues raised on appeal pertain to whether
the Civ.R. 23(A) class action requirements were met and
whether the action is barred by res judicata."
The court began with the latter question and considered
whether plaintiffs' failure to appeal their traffic
citations through Cleveland's administrative procedure
precluded their class action. The doctrine of res judicata,
as the court noted, provides that "'a valid, final
judgment rendered upon the merits bars all subsequent actions
based upon any claim arising out of the transaction or
occurrence that was the subject matter of the previous
action.'" Id. at ¶ 15, quoting
Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d
226 (1995), syllabus. The court concluded that
plaintiffs' failure to pursue administrative relief did
not bar plaintiffs' class action "because there was
never an actual 'judgment' rendered by a court, or
administrative tribunal, of competent jurisdiction."
Id. Moreover, the court noted, even if an
administrative decision had been rendered, Cleveland's
parking-violations bureau could not have decided
plaintiffs' claims for unjust enrichment and declaratory
judgment. Id. The court declined to follow the
"expansive view of res judicata" set forth in
Carroll v. Cleveland, 522 Fed.Appx. 299 (6th
Cir.2013), and Foor v. Cleveland, N.D.Ohio No. 1:12
CV 1754, 2013 U.S. Dist. LEXIS 115552, 2013 WL 4427432 (Aug.
15, 2013). Id. at ¶ 14. The court concluded
that "fairness and justice would not support the
application of res judicata in this case." Id.
at ¶ 19. The court then proceeded to address
Cleveland's challenge to class certification. The court
concluded that the class met all requirements under Civ.R. 23
and affirmed the trial court's class-certification order.
Id. at ¶ 7-18.
5} The City appealed from Lycan II to the
Ohio Supreme Court in Lycan III. The Ohio
Supreme Court accepted review on the following proposition of
Cleveland Codified Ordinance 413.031 provides an adequate
remedy in the ordinary course of law to those receiving civil
notices of liability by way of the administrative proceedings
set forth in the ordinance. State ex rel. Scott v.
Cleveland[, ] 112 Ohio St.3d 324, 2006-Ohio-6573, 859
N.E.2d 923. Individuals who receive a civil citation issued
pursuant to a local ordinance and who knowingly decline to
take advantage of an available adequate remedy at law are
precluded by res judicata from subsequently acting as class
representatives and presenting equitable claims predicated in
unjust enrichment. Accord Carroll v. Cleveland, 522
Fed.Appx. 299 (6th Cir. Ohio 2013).
See 139 Ohio St.3d 1416, 2014-Ohio-2487, 10 N.E.3d
Lycan III, 146 Ohio St.3d 29, 2016-Ohio-422, 51
N.E.3d 593, at ¶ 19.
6} In Lycan III, the City did not challenge
our conclusions in Lycan II regarding whether the
proposed class met the requirements of Civ.R. 23. Rather, it
only argued that the class could not "proceed with their
class action because they did not take advantage of the
administrative process and that, therefore, the doctrine of
res judicata bars them from relitigating their waived
challenges to the traffic citations." Id. at
¶ 20. The Supreme Court did not reach this argument.
Instead, it concluded that this court "improperly ruled
on the question of res judicata, because the trial court did
not decide that question in a final, appealable order."
Id. at ¶ 22.
7} In reaching its conclusion, the Lycan
III court acknowledged that:
[t]he parties do not dispute that the order that Cleveland
appeals here - the trial court's February 26, 2013
class-certification order - is a final, appealable order.
See R.C. 2505.02(B)(5) ("An order that
determines that an action may or may not be maintained as a
class action" is a final, appealable order). That order,
however, addresses only whether plaintiffs met the seven
Civ.R. 23 requirements to maintain a class action. It
contains no findings or discussion pertaining to res judicata
or the preclusive effect of Cleveland's administrative
process. Therefore, it provides no basis for reviewing the
res judicata question in this appeal.
Nor does the trial court's February 8, 2013 entry
granting partial summary judgment provide a basis for
reviewing the res judicata question. The Eighth District
declined to review that ruling because it was "not yet
appealable and is not addressed in the substance of
[Cleveland's] brief." Lycan II,
2014-Ohio-203, 6 N.E.3d 91, at ¶ 12. We agree and note
that if the order had been final and appealable on February
8, 2013, then Cleveland's March 27, 2013 appeal to the
Eighth District would have been untimely. We therefore
decline to address the partial-summary-judgment order in this
Id. at ¶ 23-24.
8} As a result, the Supreme Court affirmed in part
and vacated in part our decision in Lycan II. The
court affirmed the portion of Lycan II with respect
to the class certification, noting that City has waived any
arguments with regard to certification because it did not
assert a proposition of law or present any arguments in its
briefs challenging the trial court's finding that
plaintiffs satisfied the Civ.R. 23 class-action requirements.
Lycan III at ¶ 32. The Supreme Court vacated
the portion of Lycan II addressing res judicata. The
court concluded that we "erred in deciding that res
judicata barred [the class's] claims, in the absence of a
final, appealable order from the trial court addressing that
question." Id. The matter was then remanded to
the trial court for further proceedings.
9} Following the Ohio Supreme Court's remand in
Lycan III, the City filed a motion for
reconsideration and for summary judgment in August 2016. The
city sought reconsideration of the trial court's decision
granting the class's motion for partial summary judgment.
In its motion, the City stated that it "does not
re-litigate the issue of res judicata with the motion."
Rather, the City focused its arguments on the class's
failure to exhaust administrative remedies and standing. In
support of its argument, the City relied on Walker v.
Toledo, 143 Ohio St.3d 420, 2014-Ohio-5461, 39 N.E.3d
474. The class opposed.
10} After a hearing on the matter, the trial court
denied the City's motion. In its opinion, the court
[T]he [City] filed the instant motion based upon the Supreme
Court case of [Walker]. In that case, the Supreme
Court addressed the issue of whether Ohio municipalities have
"home-rule" authority to establish administrative
proceedings in furtherance of so-called
"photo-enforcement" ordinances that must be
exhausted before an individual can pursue judicial remedy.
The Walker Court answered in the affirmative.
In this case, the [City] argues that the [class] failed to
exhaust the administrative remedy made available to them, and
thus their claims should be dismissed. The [class] counter[s]
that the administrative remedy available to them was not
The Court of Appeals of Ohio, Eighth District has held that
"[w]here an administrative agency has no power to afford
the relief sought or an administrative appeal would otherwise
be futile, exhaustion of administrative remedies is not
prerequisite to seeking judicial relief." San Allen,
Inc. v. Buehrer, 8th Dist. Cuyahoga No. 99786,
2014-Ohio-2071, ¶ 64; citing [State ex rel Teamsters
Local Union No. 436 v. Cuyahoga Cty. Bd. Of ...