Eighmey v. City of Cleveland

• Decision Date: 16 April 2020
• Docket Number: No. 108540,108540
• Citation: 2020 Ohio 1500,153 N.E.3d 917
• Parties: Allyson EIGHMEY, et al., Plaintiff-Appellant, v. CITY OF CLEVELAND, Defendant-Appellee.
• Court: Ohio Court of Appeals

153 N.E.3d 917

2020 Ohio 1500

Allyson EIGHMEY, et al., Plaintiff-Appellant,

v.CITY OF CLEVELAND, Defendant-Appellee.

No. 108540

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: April 16, 2020

Dworken & Bernstein Co., L.P.A., Frank A. Bartela, and Patrick J. Perotti, Painesville, for appellant.

Barbara A. Langhenry, Cleveland Director of Law, and Gary S. Singletary, Chief Counsel, and Craig J. Morice, Assistant Director of Law, for appellee.

JOURNAL ENTRY AND OPINION

FRANK D. CELEBREZZE, JR., J.:

{¶ 1}Plaintiff-appellant, Allyson Eighmey("Eighmey"), brings the instant appeal challenging the trial court's decision granting defendant-appellee, the city of Cleveland's ("Cleveland")motion for summary judgment.After a thorough review of the record and law, this court reverses the trial court's judgment and remands the matter for further proceedings consistent with this opinion.

I.Factual and Procedural History

{¶ 2} On February 28, 2014, Eighmey, as the class representative, brought a class action suit in the trial court alleging that Cleveland was unjustly enriched by the collection of fines resulting from the issuance of traffic citations.The traffic citations issued were generated by unmarked automated traffic cameras, which failed to comply with Cleveland Codified Ordinances ("C.C.O.")413.031.

{¶ 3}C.C.O. 413.031 authorizes the use of automated traffic cameras in Cleveland to photograph red-light and speeding violations.The automated camera system generates a ticket that is reviewed by a Cleveland police officer and then sent by first-class mail or personal service to the vehicle's owner.C.C.O. 413.031(h).The recipient of a notice of liability must either pay the fine within 20 days from the date of the ticket's mailing, C.C.O. 413.031(o), or file a notice of appeal and request an administrative hearing within 21 days from the date listed on the ticket, C.C.O. 413.031(k). C.C.O. 413.031(k) provides that "[t]he failure to give notice of appeal or pay the civil penalty within this time period shall constitute a waiver of the right to contest the ticket and shall be considered an admission."Id.Cleveland assesses late penalties if the fine is not paid within 20 days.C.C.O. 413.031(o).

{¶ 4}C.C.O. 413.031(g), governing the locations of automated cameras, provides, in relevant part,

[a]t each site of a red light or fixed speed camera, the Director of Public Works shall cause signs to be posted to apprise ordinarily observant motorists that they are approaching an area where an automated camera is monitoring for red light or speed violators.

Id.Although C.C.O. 413.031(g) permitted traffic cameras to be mounted on "[m]obile speed units," the ordinance required the mobile speed units to be "plainly marked vehicles."C.C.O. 413.031(g).

{¶ 5} Between September and December 2013, the mobile speed units were mounted on unmarked trailers.Prior to the use of these unmarked trailers, Cleveland mounted these mobile speed units on marked police cars.

{¶ 6} On October 3, 2013, an unmarked mobile speed unit recorded a traffic violation committed by Eighmey at the intersection of Detroit Avenue and West 32nd Street in Cleveland.Eighmey later received the notice of violation in the mail and promptly paid her ticket on October 27, 2013.

{¶ 7} Four months later, in February 2014, Eighmey filed a class action complaint against Cleveland, alleging that the mobile unit that recorded her traffic violation failed to comply with the notice requirements of C.C.O. 413.031(g) because the unit contained "no distinguishable markings whatsoever."

{¶ 8} Eighmey's traffic ticket specified the manner in which it could be appealed, as required under C.C.O. 413.031(h)(3). C.C.O. 413.031(k), governing the appeals procedure, provides, in relevant part:

A notice of appeal shall be filed with the Hearing Officer within twenty-one (21) days from the date listed on the ticket.The failure to give notice of appeal or pay the civil penalty within this time period shall constitute a waiver of the right to contest the ticket and shall be considered an admission.

Appeals shall be heard by the Parking Violations Bureau through an administrative process established by the Clerk of the Cleveland Municipal Court.At hearings, the strict rules of evidence applicable to courts of law shall not apply.The contents of the ticket shall constitute a prima facie evidence of the facts it contains.Liability may be found by the hearing examiner based upon a preponderance of the evidence.If a finding of liability is appealed, the record of the case shall include the order of the Parking Violations Bureau, the ticket, other evidence submitted by the respondent or the City of Cleveland, and a transcript or record of the hearing, in a written or electronic form acceptable to the court to which the case is appealed.

{¶ 9} In her complaint, Eighmey alleged that challenging the citation would have been "futile because the City's own failure to comply with the ordinance is not one of the enumerated defenses to a [citation] under C.C.O. 413.031."Eighmey also asserted that the class of plaintiffs wrongfully cited by unmarked mobile units was "so numerous that joinder of all members is impracticable."

{¶ 10} On July 1, 2016, both Cleveland and Eighmey filed motions for summary judgment.In addition, Eighmey filed a motion in support of class certification.Cleveland opposed the motion, arguing, in part, that Eighmey lacked standing to represent the class because she failed to exhaust her administrative remedies by appealing the citation pursuant to C.C.O. 413.031(k).Cleveland also argued that Eighmey's claims were barred by res judicata because she paid her ticket and did not contest the violation.

{¶ 11}The trial court granted Eighmey's motion for class certification.In a written opinion, the court expressly found that Eighmey met all the requirements for class certification set forth in Civ.R. 23 and certified the following class:

All persons (a) issued tickets or notices of Liability by a "mobile speed unit" under Cleveland Codified [O]rdinance[s] 413.031 et seq., (b) during the period September 25, 2013 to December 26, 2016, (c) which were not warnings, and (d) upon which there was not a finding of no liability pursuant to [ ]413.031(k).

{¶ 12} The opinion did not mention Cleveland's arguments regarding Eighmey's inability to represent the class due to her alleged failure to exhaust administrative remedies, res judicata, or standing.Rather, the trial court found that Eighmey's claims were typical of the class because "[t]here [wa]s no express conflict between the interests of named class representative, Allyson Eighmey, and the interests of putative class members."

{¶ 13} Cleveland filed an appeal challenging the trial court's judgment granting class certification.Eighmey v. Cleveland , 8th Dist. CuyahogaNo. 104779, 2017-Ohio-7092, 2017 WL 3299429.At the time Cleveland filed the appeal, the trial court had not ruled on Eighmey's or Cleveland's motions for summary judgment.

{¶ 14} On appeal, this court reversed the trial court's order granting class certification.This court found that Eighmey, as the class representative, failed to meet the typicality requirement of Civ.R. 23.As a result, this court remanded the matter "for further proceedings to determine the merits of Eighmey's claims and Cleveland's defenses and for the possible substitution of a more suitable class representative."Id.at ¶ 25.

{¶ 15} On remand, Eighmey filed a motion "to re-certify the class pursuant to mandate from 8th District Court of Appeals" on October 3, 2017.In her motion, Eighmey sought to resolve the typicality issue by removing class members that challenged or appealed a ticket from a mobile traffic camera.Eighmey sought certification of the following class: "All persons (a) issued tickets or notices of liability by a ‘mobile speed unit’ under Cleveland Codified Ordinance[s] 413.031 et seq., (b) during the period September 25, 2013 to December 26, 2013,¹(c) which were not warnings, and (d) who did not appeal the ticket or notice of liability."

{¶ 16} Cleveland filed a brief in opposition to Eighmey's motion to recertify on October 11, 2017.Therein, Cleveland disputed Eighmey's assertion that the Eighth District mandated or ordered the trial court to recertify the class.Cleveland argued that the case was remanded for adjudication of Eighmey's claims on the merits, rather than recertification of her proposed class.Cleveland also contended that Eighmey and the proposed members of the amended class would lack standing to assert claims against Cleveland because (1)they failed to exhaust administrative remedies, and (2) their claims were barred by res judicata because they paid the tickets without challenging the tickets or filing an appeal pursuant to the procedures set forth in C.C.O. 413.031.

{¶ 17} On April 10, 2019, the trial court issued a judgment entry granting the motion for summary judgment filed by Cleveland on July 1, 2016, and denying Eighmey's motion to recertify the class as moot.The trial court concluded, in relevant part,

Eighmey paid her fine and waived her right to appeal under C.C.O. 413.031, and as a result lacks standing and her claim is barred by res judicata.Therefore, Plaintiffs motion to re-certify class is denied as moot, and Defendant City of Cleveland's motion for summary judgment, filed July 1, 2016, is granted.Case is dismissed with prejudice and removed from the Court's active docket.

{¶ 18} It is from this judgment that Eighmey filed the instant appeal on May 8, 2019.She assigns one error for review:

I.The trial court erred in granting [Cleveland's]motion for summary judgment.

II.Law and Analysis

A.Scope of Appeal

{¶ 19} Eighmey brings this appeal challenging the trial court's April 9, 2019 judgment.In the April 9, 2019 judgment entry, the trial court granted Cleveland's motion for summary judgment and denied Eighmey's...