State ex rel. Rothal v. Smith

• Court: Ohio Court of Appeals
• Writing for the Court: Slaby
• Citation: State ex rel. Rothal v. Smith, 151 Ohio App.3d 289, 783 N.E.2d 1001, 2002 Ohio 7328 (Ohio App. 2002)
• Decision Date: 31 December 2002
• Docket Number: No. 20950.,No. 20938.,20938.,20950.
• Parties: The STATE ex rel. ROTHAL, Dir. of Law, et al., Appellees, v. SMITH et al., Appellants.

783 N.E.2d 1001

151 Ohio App.3d 289

2002 Ohio 7328

The STATE ex rel. ROTHAL, Dir. of Law, et al., Appellees, v. SMITH et al., Appellants.

No. 20938.

No. 20950.

Court of Appeals of Ohio, Ninth District, Summit County.

Decided December 31, 2002.

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Max Rothal, Director of Law, and Douglas J. Powley, Chief City Prosecutor, for appellee.

Scott W. Spencer, for appellants Dennis Smith and D. Michael Smith Enterprises, Inc.

Frank J. Witschey, Akron, for appellants George Family Trust and Josephine George.

SLABY, Presiding Judge.

{¶ 1} Appellants, Dennis M. Smith ("Dennis"), D. Michael Smith Enterprises, Inc., the George Family Trust, Anthony P. George, and Josephine H. George, appeal from the judgment of the Summit County Court of Common Pleas that found the Back Bar ("bar") and the bar's parking lot constituted nuisances and, therefore, ordered a permanent and perpetual injunction to abate the nuisances. Further, the trial court issued a closure order for a period of one year. We affirm.

{¶ 2} On September 25, 2001, appellees, the state of Ohio, Max Rothal, the Director of Law for the city of Akron, and the city of Akron, filed a complaint against appellants contending that the bar was a nuisance and requesting a permanent injunction. Thereafter, appellees moved for a temporary injunction, which the trial court granted. On October 24, 2001, the George Family Trust, Anthony P. George, and Josephine H. George (referred to collectively as "George") filed a cross-claim. Dennis and D. Michael Smith Enterprises, Inc. (referred to collectively as "Smith") filed a counterclaim against George and appellees and also instituted a third-party complaint against appellees. Due to the numerous claims, appellees moved for separate trials. Smith then moved for a hearing on appellees' motion for separate trials, pursuant to Civ.R. 42(B). The trial court did not hold a hearing, but it did grant appellees' motion for separate trials. Subsequently, a bench trial followed. The trial court determined that the bar and the bar's parking lot were nuisances. The trial court therefore ordered a permanent and perpetual injunction and further ordered that the properties could not be occupied or used for one year. It is from this order that Smith and George have separately filed timely appeals. To facilitate review, we have addressed like assignments of error together.

SMITH'S ASSIGNMENT OF ERROR I

{¶ 3} "The trial court's judgment is against the manifest weight of the evidence[.]"

SMITH'S ASSIGNMENT OF ERROR VIII

{¶ 4} "The trial court erred by ordering closure of the Back Bar where no knowledge or acquiescence is demonstrated on the part of [Dennis]."

GEORGE'S ASSIGNMENT OF ERROR I

{¶ 5} "The trial court failed to apply State ex rel. Pizza v. Rezcallah (1998), 84 Ohio [St.3d] 116 [702 N.E.2d 81], the Ohio Supreme Court's controlling case which resulted in a decision that violates [George's] constitutional rights[.]"

{¶ 6} In their first assignment of error, Smith challenges the adequacy of the evidence presented at trial. Specifically, Smith avers that the trial court's decision was contrary to the manifest weight of the evidence because appellees failed to prove that (1) Dennis had knowledge of the alleged illegal drug activity; (2) chronic felony drug trafficking occurred on the premises; and (3) the bar had a reputation for illegal drug activity. In their eighth assignment of error, Smith asserts that appellees failed to establish that Dennis knew of or acquiesced in the alleged drug activity and, therefore, the trial court erred in closing the bar. In their first assignment of error, George asserts that the trial court erroneously ordered the bar closed as against them because it failed to apply State ex rel. Pizza v. Rezcallah. Particularly, George posits that the trial court could close the bar only if they had acquiesced in or participated in the creation or perpetuation of the nuisance, and since the evidence suggests otherwise, the trial court violated their constitutional rights when it closed the bar. We disagree with the assertions of Smith and George.

{¶ 7} When evaluating whether a judgment is against the manifest weight of the evidence in a civil context, the standard of review is the same as that in the criminal context. Frederick v. Born (Aug. 21, 1996), 9th Dist. No. 95CA006286, at 14, 1996 WL 471219. In determining whether a criminal conviction is against the manifest weight of the evidence:

{¶ 8} "`The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [jury/trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment/conviction] must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the [judgment/conviction]."' State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d 717; see, also, State v. Otten (1986), 33 Ohio App.3d 339, 340, 515 N.E.2d 1009.

{¶ 9} Accordingly, before an appellate court will reverse a judgment as against the manifest weight of the evidence in a civil context, the court must determine whether the trier of fact, in resolving evidentiary conflicts and making credibility determinations, clearly lost its way and created a manifest miscarriage of justice.

{¶ 10} In the present case, appellees asserted that the bar constituted a nuisance pursuant to R.C. Chapter 3767, R.C. 3719.10, 715.44, and 715.49. Therefore, we must examine the relevant statutory provisions to determine whether the bar did constitute a nuisance. We begin our review with the definition of "nuisance."

{¶ 11} R.C. 3767.01(C) and 3719.10 define "nuisance." In particular, R.C. 3767.01(C) provides that a "nuisance" means any of the following:

{¶ 12} "* * *

{¶ 13} "(2) Any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists * * *[.]

{¶ 14} "(3) Any room, * * * building, * * * structure, or place where beer or intoxicating liquor is * * * sold, bartered, possessed, or kept in violation of law * * * where the operation of that place substantially interferes with public decency, sobriety, peace, and good order. `Violation of law' includes, but is not limited to, * * * any violation of [R.C.] 2913.46 or 2925.03."

{¶ 15} R.C. 3719.10 defines "nuisance" as follows:

{¶ 16} "Premises or real estate, including vacant land, on which a felony violation of [R.C.] Chapter 2925. or 3719. * * * occurs constitute a nuisance subject to abatement pursuant to [B.C.] 3767."

{¶ 17} R.C. 3767.02(A) prescribes who is liable for a nuisance. The statute states:

{¶ 18} "Any person, who uses, occupies, establishes, or conducts a nuisance, or aids or abets in the use, occupancy, establishment, or conduct of a nuisance; the owner, agent, or lessee of an interest in any such nuisance; any person who is employed in that nuisance by that owner, agent, or lessee; and any person who is in control of that nuisance is guilty of maintaining a nuisance[.]"

{¶ 19} In order to obtain an abatement order pursuant to R.C. 3719.10 and 3767.02 et seq., the plaintiff must establish by clear and convincing evidence that chronic felony violations of R.C. Chapter 2925 or R.C. Chapter 3719 occurred on the premises. State ex rel. Freeman v. Pierce (1991), 61 Ohio App.3d 663, 670, 573 N.E.2d 747; State ex rel. Miller v. Anthony (1995), 72 Ohio St.3d 132, 135, 647 N.E.2d 1368. Evidence of felony drug activity is one type of chronic activity sufficient to establish a nuisance; however, the plaintiff need not show chronic drug activity as long as he has presented evidence of habitual actions constituting violations of R.C. Chapter 2925 or R.C. Chapter 3719. See State ex rel. Stern v. Butler (Sept. 26, 2001), 7th Dist. No. 98-JE-54, 2001 WL 1155821. Moreover, "R.C. 3719.10 requires only a de facto `violation' of criminal law, not a de jure `conviction.'" State ex rel. Freeman, 61 Ohio App.3d at 667, 573 N.E.2d 747. Clear and convincing evidence is that "`which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.'" State v. Eppinger (2001), 91 Ohio St.3d 158, 164, 743 N.E.2d 881, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 477, 53 O.O. 361, 120 N.E.2d 118.

{¶ 20} Additionally, the plaintiff must "`prove by clear and convincing evidence that the defendant had knowledge of and either acquiesced to or participated in a felony violation of R.C. Chapter 2925 or 3719 on the property" that created or perpetuated the nuisance. State ex rel. Miller, 72 Ohio St.3d at 139, 647 N.E.2d 1368, quoting State ex rel. Freeman, 61 Ohio App.3d at 671, 573 N.E.2d 747. See, also, State v. Ramey (Sept. 3, 1999), 2nd Dist. No. 99CA0002, 1999 WL 957650, citing State ex rel. Pizza, 84 Ohio St.3d 116, 702 N.E.2d 81, at paragraph two of the syllabus. "A person has knowledge of circumstances when he is aware that such circumstances probably exist." (Emphasis added.) R.C. 2901.22(B).

{¶ 21} The plaintiff may present "evidence of the general reputation of the place where the nuisance is alleged to exist" to "pro[ve] the existence of the nuisance," and it is "prima-facie evidence of the nuisance and of knowledge of and of acquiescence and participation in the nuisance on the part of the person charged with maintaining it." (Emphasis added.) R.C. 3767.05(A). See, also, R.C. 3767.06(B) ("Every defendant in the action shall be presumed to have had knowledge of the general reputation of the place where the nuisance is found to exist"). We note that the civil offense of maintaining a nuisance does not require proof that the owner...