Musca v. Village of Chagrin Falls
| Citation | 3 OBR 219,3 Ohio App.3d 192,444 N.E.2d 475 |
| Parties | , 3 O.B.R. 219 MUSCA, Appellant, v. VILLAGE OF CHAGRIN FALLS et al., Appellees. |
| Decision Date | 17 December 1981 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court
1. Civ.R. 60(A) authorizes the correction of clerical mistakes only. Substantive changes in orders, judgments or decrees are not within its purview.
2. Civ.R. 59(D) provides sua sponte authority to grant a new trial but no Civ.R. 59(D) motion for a new trial shall be granted without notice to the parties and an opportunity to be heard. And the order granting the motion must specify the grounds justifying it.
3. Liens on real property for the collection of bills owed municipally operated public utilities may be created by statute or ordinance and certified to the county auditor for collection as other taxes and assessments are.
Bruce T. Wick, Cleveland, for appellant.
Joseph W. Diemert, Cleveland, for appellees.
This is an appeal by plaintiff-appellant Molly Musca (plaintiff) from a judgment by the Cuyahoga County Common Pleas Court denying an injunction and allowing defendant-appellee Village of Chagrin Falls (defendant) to place a tax lien of $11,594.93 on her property. The lien is for unpaid water rent.
For reasons adduced below the judgment is reversed and the cause remanded for further proceedings according to law.
The relevant facts were stipulated by the parties.
Plaintiff owns a four-unit commercial building in the Village of Chagrin Falls (defendant). Each of the four units receives water from defendant through a separate hydrant 1 connected to a separate water meter, each of which is owned and installed by defendant. Defendant carries each meter as a separate account for billing purposes.
In July 1974, plaintiff leased one of her four units, known as 152 Bell Street, to Vend-A-Wash Coin Laundry Co. The lease provided that the tenant would pay for all utilities. Bills, presumably, were sent to Vend-A-Wash.
In March 1976, when defendant was advised that Vend-A-Wash was selling its business, defendant made a special reading and billed Vend-A-Wash $1,579.40 for water consumed but Vend-A-Wash did not pay the bill. About the time defendant made the final water meter reading for Vend-A-Wash, John Yost purchased the laundry business at 152 Bell Street and defendant carried over Vend-A-Wash's unpaid balance on bills issued to Yost for water consumed at that address. 2 (Neither the record nor the stipulations indicate whether Yost took over the Vend-A-Wash lease, whether Yost had a new lease of his own or whether he had no lease.)
Yost did not pay the water bills. On November 2, 1978, when the unpaid balance reached $11,594.93, defendant shut off the water at 152 Bell Street and "Yost abandoned or disposed of his business."
Other than through her tenants plaintiff never received or consumed water at 152 Bell Street. At no time prior to November 2, 1978, did plaintiff open any account with defendant to furnish water at 152 Bell Street, nor did she agree to be responsible for payment for water furnished to that address. Although defendant had rented water to 152 Bell Street at least since July 15, 1974, plaintiff did not receive any bills for water prior to November 2, 1978, more than four years later. 3
Before its incorporation as a charter municipality in November 1962, defendant operated a water department under rules, regulations and by-laws approved by the Village Board of Public Affairs. Section 13 of these rules includes a provision making unpaid "water rent" a lien on the property. 4 When defendant incorporated, it adopted a charter which included in Article XII:
The trial court, basing its decision on the stipulated facts and briefs of the parties journalized a judgment entry on October 8, 1980, in which it found:
Thirteen days later, without notice, motion, or any hearing of record the court reversed itself in an entry journalized October 21:
Plaintiff then moved for a new trial but the motion was denied November 20, 1980, with a judgment entry:
From the judgment entries of October 21 and November 20, plaintiff appealed. But her presentation is confusing. She first assigns errors and then identifies issues which deviate in some measure from the assignments. To avoid the hazards of an attempted matching, the issues are treated as the "assignments of error":
The first three "assignments of error" are interrelated and will be considered together.
Although the court relies on Civ.R. 60(A) to support its sua sponte change of decision, it is apparent that the change--a complete turnabout--was so fundamental that reference to Civ.R. 60(A) is misplaced. While Rule 60(B) is the obvious rule of choice when a party is instituting procedures for vacating judgment, that rule specifically requires a motion to activate it--and none was filed. But, having had before it all the arguments of the parties 5 the court would not have been precluded from a reversing of its position based on Civ.R. 59(D).
Civ.R. 59(D) provides:
Each paragraph in (D) provides a trial judge sua sponte authority to grant a new trial but it is not clear that the procedures for notice and hearing and the specification of grounds provided in the second paragraph also apply to the first. However, there appears to be no reason why the draftsmen should intend a procedural difference when sua sponte authority is exercised under the first rather than the second provision. On the other hand there are obvious reasons for intending notice and hearing for both.
The ambiguity is resolved if Civ.R. 59(D) is read as though the last two sentences of the second paragraph were part of a third paragraph providing:
Sua sponte action under the rule thus read necessitates notice to the parties, an opportunity to be heard and specification of grounds whether the trial judge is presumed to have acted under either the first or the second paragraph. Since neither notice, nor opportunity to be heard, nor the required specification was provided, the plaintiff was denied the process ordained by the rule.
"Assignments of Error" (i.e., issues) A, B, and C treated as affirmative claims of error are well taken.
Plaintiff argues that the Statute of Frauds prevents defendant from imposing a lien against her property. Because that issue was not raised at the trial level it need not, but may be, addressed by the court of appeals, App.R. 12(A). Disposition is easy.
Statute of Frauds principles do not apply because there is no claim that the obligation asserted in this case rests on contract. 7 Rather the lien is alleged to attach by operation of law. The key issue is whether this is a valid premise. The second of the two issues marked "C," treated as an affirmative claim of error, is without merit.
Ohio law requires statutory or ordinal authority for the creation of liens on real property to enforce the collection of bills for services to such property by municipally-operated utilities, Home Owners' Loan Corp. v. Tyson (1938), 133 Ohio St. 184, 186, 12 N.E.2d 478 (statute); see Hohly v. State ex rel. Summit Superior Co. (1934), 128 Ohio St. 257, 191 N.E. 1. 8
Tyson 9 was interpreting ...
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