[Cite as Carlson v. Cincinnati, 2024-Ohio-591.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

RICK CARLSON,

Plaintiff-Appellant,

vs.

CITY OF CINCINNATI,

Defendant-Appellee.

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APPEAL NO. C-230115

TRIAL NO. A-1703713

O P I N I O N.

Civil Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Cause 

Remanded

Date of Judgment Entry on Appeal: February 16, 2024

Hilton Parker LLC and Jonathan L. Hilton for appellant,

Emily Smart Woerner, City Solicitor, and David M. Laing, Assistant City Solicitor, for

appellee.
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WINKLER, Judge.

{¶1} Appellant Rick Carlson (“Rick”) appeals the trial court’s grant of the 

city’s postjudgment Civ.R. 60(B) motion reinstating a 2019 judgment against him after 

he was mistakenly deemed to have voluntarily satisfied the judgment. Rick also 

appeals the merits of the trial court’s partial-summary-judgment order, which found 

him liable for vacant building maintenance license fees and nuisance-abatement costs,

as well as the trial court’s denial of Rick’s motion for reconsideration of that order. For 

the following reasons, we affirm the trial court’s order reinstating the judgment 

against Rick, affirm in part and reverse in part the trial court’s grant of partial 

summary judgment, and affirm the trial court’s denial of the motion for 

reconsideration. Accordingly, we remand the cause for further proceedings.

Background

{¶2} This appeal concerns long-running litigation between the city of 

Cincinnati and Rick, his children, and their family business entity seeking civil 

penalties, fees, and costs arising from a panoply of vacant and condemned properties 

they own. This appeal is the third time that the Carlson litigation has come before this 

court. See Carlson v. City of Cincinnati, 1st Dist. Hamilton No. C-190631, 

2020-Ohio-4685 (“Carlson I”); Carlson v. City of Cincinnati, 1st Dist. Hamilton 

No. C-210238, 2022-Ohio-1513 (“Carlson II”). While Carlson I and Carlson II have 

involved Rick’s children and their business entity, this appeal concerns only Rick.

I. Proceedings preceding the motion for partial summary judgment.

{¶3} In July 2017, Rick began this civil action by filing suit pro se to enjoin 

the city’s demolition of a vacant building on one of his properties. The city brought 

counterclaims against Rick and third-party claims against Rick’s business entity, 
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Tuscan Hillside Development LLC, and Rick’s children, Daisy, Noah, and Jeremiah 

Carlson (collectively, “the Carlson defendants”). See Carlson I at ¶ 2. The city alleged 

that the Carlson defendants owned some 200 properties and owed hundreds of 

thousands of dollars in unpaid civil fines, building-code citations, nuisance-abatement 

costs, and Vacated Building Maintenance License (“VBML”) fees related to those 

properties. In 2017, Rick made a $3,500 voluntary payment for one year’s VBML for 

one of his properties.

{¶4} The VBML fees comprise most of the city’s eventual judgment against 

Rick. The VBML program targets vacated and blighted properties by imposing 

escalating fees on owners of properties that have been ordered vacated or kept vacant 

for one year or more. See Cincinnati Municipal Code 1101-129 et seq.; Carlson II at 

¶ 16. VBML fees and penalties are set by ordinance. For the first year a property is 

ordered vacated or kept vacant, a property owner must pay an annual $900 fee. 

Cincinnati Municipal Code 1101-129.1. The fee increases to $1,800 for the second year, 

$2,700 annually for the third through fifth years, and $3,500 annually for each year 

thereafter. Id. There is a late-payment penalty equal to the lesser of $1,000 or the 

applicable annual fee if a person fails to timely obtain or renew a VBML. Id. 

at 1101-129.3.

{¶5} The city supported its counterclaim for VBML fees and penalties with 

Exhibit D, a spreadsheet that broke down the properties owned by each defendant and 

detailing the VBML fees alleged to be owed and the date each property was ordered 

vacated or kept vacant. Exhibit D alleged that Rick owed $77,900 in VBML fees on six 

properties he owned: $10,400 for 1752 Fairmount Avenue, $4,600 for 1536 Knox 

Street, $13,800 for 1538 Knox Street, $10,400 for 1861 Knox Street, $18,400 for 1862 
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Knox Street, and $20,300 for 2457 Waveland Place. Exhibit D lists a seventh property

Rick owned, 1549 Fairmount Avenue, and that there was a 2007 order associated with 

that property, but Exhibit D does not list the date that property was vacated or an 

amount of VBML fees owed on that property.

II. The motion for partial summary judgment.

{¶6} The city moved for partial summary judgment against the Carlson

defendants on the civil fines, nuisance-abatement costs, and the VBML fees. The city 

attached to the motion an affidavit1from the division manager of the city’s Property 

Maintenance and Code Enforcement Division, the office that enforces the VBML 

program, who averred that the Carlson defendants owned properties at 12 separate 

addresses, that those addresses were subject to the VBML program, and the Carlson 

defendants owed $137,800 in VBML fees and late-payment penalties. Carlson I,

1st Dist. Hamilton No. C-190631, 2020-Ohio-4685, at ¶ 3.

{¶7} The Carlson defendants opposed the city’s motion by arguing, among 

other things, that the city failed to prove how it calculated the amount of VBML fees 

and penalties allegedly owed. In its reply memorandum, the city attached Exhibit H, 

another spreadsheet that broke down each property, the date it had been ordered 

vacant or kept vacant, the fee for each year that property required a VBML, and 

calculated the total VBML fees owed to date. Exhibit H calculated Rick owed $113,100 

in VBML fees and penalties and that the Carlson defendants collectively owed 

$210,100 in total VBML fees and penalties.

1 This affidavit is also labeled “Exhibit D,” the same label as the spreadsheet detailing the VBML fees. 

To avoid confusion, we refer to only the spreadsheet attached to the counterclaim by name as Exhibit D 

and we refer to the affidavit by description.
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{¶8} The Carlson defendants moved to file a surreply, or alternatively, to 

strike the city’s reply brief. The Carlson defendants argued that Exhibit H constituted 

new evidence and the city’s request for an increased amount of unpaid VBML fees in 

its reply essentially amounted to a new summary-judgment motion to which the 

Carlson defendants could not respond. The trial court overruled the Carlson 

defendants’ motion to file a surreply.

{¶9} The trial court granted partial summary judgment to the city that 

included an individual judgment against Rick, as well as individual money judgments 

against the other Carlson defendants. After the trial court entered its decision, the 

city, following the procedure of R.C. 2329.02, obtained five certificates of judgment 

and created liens on the Carlson defendants’ real estate to secure the judgments.

{¶10} Before the trial court issued final judgment on all issues, Rick 

submitted a pro se filing asking the trial court to reconsider its partial-summaryjudgment decision. In that filing, Rick raised several arguments that had not been 

brought when litigating the summary-judgment motion with counsel, including an 

argument that two properties at issue, 1536 Knox Street and 1538 Knox Street, 

constituted one “building” for the purposes of the VBML but with two addresses. The 

trial court struck the pro se filing as improper hybrid representation, and Rick’s 

counsel later submitted a new motion for reconsideration, raising the same 

arguments. The trial court rejected Rick’s arguments and denied reconsideration of 

the summary-judgment order.

{¶11} Months later, the city settled with Rick’s daughter Daisy Carlson. The 

city filed an entry of satisfaction under the original case number intending to give 

notice that Daisy had satisfied the judgment, and the city requested the clerk release 
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the lien of the judgment recorded. However, the entry of satisfaction read “the 

judgment against the Petitioner-Counterdefendant Rick Carlson is satisfied.” 

(Emphasis added.) The certificate of service attached to the entry of satisfaction also 

referred to Rick and counsel for the Carlson defendants and did not name Daisy 

Carlson. This error was not noticed at the time.

III. The appeal in Carlson I.

{¶12} About one month later, on October 23, 2019, after the dismissal of all 

remaining claims, including Rick’s, the trial court entered a final judgment. The 

Carlson defendants jointly appealed that final judgment. The record of the separate 

certificate of judgment docket was not certified to this court.

{¶13} The Carlson defendants argued on appeal in Carlson I, among other 

things, that Exhibit H was additional evidence that should not have been included in 

a reply memorandum. During oral argument, this court asked counsel for the parties 

why Rick’s appeal was not moot when the record contained an entry of satisfaction 

with respect to his obligation. Counsel for the city and the Carlson defendants each 

appeared confused and indicated their belief that Daisy, not Rick, had satisfied the 

judgment and obtained a lien release. No party sought leave to correct the appellate 

record. See Civ.R. 60(A).

{¶14} This court dismissed Rick’s appeal as moot and reached the merits of 

the appeals brought by the other Carlson defendants. This court held, among other 

things, that Exhibit H was not independent evidence but was a mathematical aid that 

summarized the evidence contained in Exhibit D attached to the counterclaim and 

applied the VBML fee structure to the present. Carlson I, 1st Dist. Hamilton 

No. C-190631, 2020-Ohio-4685, at ¶ 20.
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IV. The city’s attempts to correct the entry of voluntary satisfaction 

and the appeal in Carlson II.

{¶15} The city first attempted to correct the erroneous entry of voluntary 

satisfaction after this court issued its decision in Carlson I. The city filed an amended 

entry of satisfaction with an explanatory affidavit with the trial court under 

Civ.R. 60(A). The trial court rejected the attempt, ruling that the law-of-the-case 

doctrine and Carlson I required treating the judgment against Rick as satisfied. The 

city appealed that decision to this court. Carlson II, 1st Dist. Hamilton No. C-210238, 

2022-Ohio-1513, at ¶ 29.

{¶16} In Carlson II, this court held that the explanatory affidavit was new 

evidence, and thus the law-of-the-case doctrine did not apply. Id. at ¶ 18-19. We 

further held that because the entry of satisfaction had become “inextricably 

intertwined” with the trial court’s final judgment, the city could not modify the 

judgment under Civ.R. 60(A) but must seek relief under Civ.R. 60(B). Id. at ¶ 29, 

citing In re Dabbelt, 3d Dist. Mercer No. 10-84-6, 1986 Ohio App. LEXIS 6663 

(May 1, 1986). We interpreted the city’s actions as invoking Civ.R. 60(B) and 

remanded the cause to the trial court with instructions to decide two issues: 

(1) whether the city’s motion was made within a reasonable time and (2) whether the 

final judgment, as modified by the erroneous entry of satisfaction, should be amended 

to correct an unjust result. Id. at ¶ 33.

V. Proceedings to correct the judgment after Carlson II.

{¶17} Following our instructions, the trial court analyzed the motion under 

Civ.R. 60(B). The trial court determined that the motion was made within a 

reasonable time because the city learned of the mistake during oral argument in 
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Carlson I and filed the amended entry of satisfaction within two days of the Carlson I 

decision and less than one month from oral argument. The trial court further 

determined that the judgment ought to be amended to correct an unjust result as all 

parties conceded the mistake and to not correct the error would have provided Rick a 

six-figure windfall and required Daisy to pay her judgment twice. Consequently, the 

trial court granted the city’s motion and reinstated the judgment against Rick.

{¶18} Rick now appeals the order reinstating the judgment and the trial 

court’s 2019 grant of partial summary judgment against him.

Law and Analysis

{¶19} Rick raises five assignments of error for review. First, Rick argues the

trial court improperly granted the city’s Civ.R. 60(B) motion to reinstate the judgment 

against Rick when the trial court found only that the city had acted with neglect, 

without finding that the neglect was excusable. Second, Rick argues the trial court 

erred by failing to reduce the judgment against Rick by $3,500 to credit a voluntary 

payment he made. Third, Rick argues the trial court committed plain error by granting 

summary judgment to the city against Rick for $1,190.50 for nuisance-abatement 

costs, when the parties agree that those costs were beyond the applicable statute of 

limitations. Fourth, Rick argues the trial court improperly granted partial summary 

judgment on the city’s VBML claims when the city introduced no evidence into the 

record of when Rick’s buildings became vacant and subject to the VBML fee structure. 

Fifth, Rick argues the trial court improperly weighed the evidence as to whether the 

two properties were part of the same “building” and should have been subject to one 

fee when deciding Rick’s motion to reconsider the grant of partial summary judgment 
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on the VBML fees for the 1536 Knox Street and 1538 Knox Street properties, rather 

than holding that Rick had created a triable issue of fact.

I. The Civ.R. 60(B)(1) motion to reinstate the judgment.

{¶20} In his first assignment of error, Rick argues the trial court erred by 

granting the city’s Civ.R. 60(B)(1) motion without making an express finding that the 

city’s neglect was excusable. We review the trial court’s decision on a Civ.R. 60(B) 

motion under an abuse-of-discretion standard. Wottreng v. CBTM Elberon, LLC, 1st 

Dist. Hamilton No. C-220357, 2023-Ohio-2207, ¶ 7. An “abuse of discretion” implies 

the trial court’s attitude is “unreasonable, arbitrary, or unconscionable.” Setters v. 

Durrani, 1st Dist. Hamilton Nos. C-210428 and C-210437, 2022-Ohio-1022, ¶ 25. The 

trial court’s determination will not be disturbed absent an exercise of unwarranted 

discretion or legal error. Wottreng at ¶ 7.

{¶21} Rick argues that the trial court erred by failing to expressly find the city 

acted with excusable neglect. However, a trial court is not required to issue findings 

of fact and conclusions of law on a Civ.R. 60(B) motion, particularly where a party did 

not request such findings or conclusions under Civ.R. 52. Custom Pro Logistics, LLC 

v. Penn Logistics, LLC, 1st Dist. Hamilton No. C-210422, 2022-Ohio-1774, ¶ 22, 

quoting CitiMortgage, Inc. v. Dudek, 9th Dist. Summit No. 25806, 2012-Ohio-899, 

¶ 10, quoting Home S. & L. Co. v. Avery Place, LLC, 5th Dist. Delaware No. 11 CAE 02 

0014, 2011-Ohio-4525, ¶ 29. Rick did not make such a request. Thus, the trial court 

was under no obligation to make an express finding of excusable neglect or any express 

findings of fact. A trial court does not abuse its discretion when it does not do 

something it was under no obligation to do. Rick had a mechanism available in Civ.R.

52 to request that the trial court make the express finding he desired, but chose not to.
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{¶22} Even had Rick requested the court make such a conclusion, it is not 

logically necessary for the trial court here to find excusable neglect to provide the relief 

sought by the city under Civ.R. 60(B)(1). Civ.R. 60(B)(1) provides that “[o]n motion 

and upon such terms as are just, the court may relieve a party or his legal 

representative from a final judgment, order or proceeding for the following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect.” (Emphasis added.) The 

rule’s use of the disjunctive when listing the grounds for relief means that any one of 

the available grounds may be sufficient. The city’s motion did not state the specific 

grounds sought for relief under Civ.R. 60(B)(1) as it was originally made under Civ.R. 

60(A) and this court later recharacterized it as a Civ.R. 60(B)(1) motion. See Carlson 

II, 1st Dist. Hamilton No. C-210238, 2022-Ohio-1513, at ¶ 32.

{¶23} There is no reason to conclude that the trial court necessarily decided 

the motion on excusable neglect as opposed to mistake. The trial court was instructed 

to determine whether the motion was made within a reasonable time and whether the 

judgment should be amended to correct an unjust result. Id. at ¶ 33. These 

determinations are consistent with any form of relief available under Civ.R. 60(B)(1). 

The trial court addressed both issues through the lens of a mistake. 

{¶24} Rick argues even if the trial court granted the motion on grounds of a 

mistake, a mistake still requires that a party show it was justified in failing to avoid the 

mistake. While a party alleging a unilateral mistake on the part of one party or her 

counsel must show why they were justified in failing to avoid the mistake, the situation 

is different for a mutual mistake. See Breckenridge v. Breckenridge, 11th Dist. Geauga 

No. 2003-G-2533, 2004-Ohio-1845, ¶ 11, 13. A trial court is not expressly required to 
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find a justification to grant relief for a mutual mistake shared by both parties as to a 

material fact of the case. See id. at ¶ 11.

{¶25} Here, there was a mutual mistake as to who satisfied their judgment. 

All parties agree that there was a mistake in the entry of voluntary satisfaction, that 

Daisy Carlson, not Rick, satisfied the judgment against her, that the entry of voluntary 

satisfaction was intended to effect a release of Daisy, not Rick, and that the parties 

entered into a settlement agreement to resolve the judgment against Daisy. The 

parties did not realize the mistake until oral argument in Carlson I. This mistake also 

results in Rick avoiding the judgment against him while Daisy must pay her judgment

twice to be released. The trial court did not abuse its discretion in correcting this 

mutual mistake by the parties.

{¶26} Consequently, we overrule Rick’s first assignment of error.

II. Accounting for voluntary payments and amounts barred by the 

statute of limitations.

{¶27} In his second and third assignments of error, Rick argues that the trial 

court erred when it did not reduce the judgment against him by $4,690.50 to credit a 

$3,500 voluntary payment made by Rick and to account for $1,190.50 in nuisanceabatement costs that were barred by the statute of limitations.

{¶28} The city concedes that Rick should be credited for the voluntary 

payment and that the nuisance-abatement costs are barred by the applicable statute 

of limitations. However, the city argues that the issues are not ripe for appellate review 

because the notice of appeal was filed before the city could file a corrected judgment 

amount. Thus, the city argues, both issues are not ripe because they are contingent on 

future events.
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{¶29} “In order to be justiciable, a controversy must be ripe for review.” 

Keller v. Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 26. An 

issue is not ripe for appellate review if it rests on contingent future events that may not 

occur as anticipated or may never occur at all. JPMCC 2004-CIBC10 7th St. Office, 

LLC v. URS Tower, LLC, 2013-Ohio-796, 987 N.E.2d 348, ¶ 19 (1st Dist.), quoting 

State v. Loving, 180 Ohio App.3d 424, 2009-Ohio-15, 905 N.E.2d 1234, ¶ 4 

(10th Dist.), citing Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 

140 L.Ed.2d 406 (1998). While the city could file a corrected judgment to moot these 

issues in the future, that possibility does not render existing issues about the judgment 

not ripe for review. At this point in time, there is a judgment against Rick secured by 

liens against his real property. Rick argues that judgment does not account for his 

voluntary payments and contains amounts for claims that are barred by the statute of 

limitations. The city agrees with Rick’s arguments. Thus, the judgment and its

associated liens have live legal issues that can be resolved by judicial action.

{¶30} Though those issues could be rendered moot in the future, they are ripe 

for appellate review. The parties agree that Rick is entitled to credit for his $3,500 

voluntary payment and that $1,190.50 of nuisance-abatement claims are barred by the 

applicable statute of limitations. The judgment should be corrected to reflect those 

amounts.

{¶31} Accordingly, we sustain the second and third assignments of error.

III. Partial summary judgment on the VMBL fees and penalties.

{¶32} In his fourth assignment of error, Rick argues that the trial court erred 

in granting partial summary judgment against him on the VBML claims because there 

was no evidence of the dates when Rick’s buildings became vacant and thus requiring 
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a VBML. Without evidence of those dates, the trial court could not have applied the 

VBML’s fee structure to mathematically determine the amount of VBML fees owed.

{¶33} We review a trial court’s grant of summary judgment de novo. Helton 

v. Fifth Third Bank, 1st Dist. Hamilton No. C-210451, 2022-Ohio-1023, ¶ 12. The trial 

court appropriately grants summary judgment “when there exists no genuine issue of 

material fact, the party moving for summary judgment is entitled to judgment as a 

matter of law, and the evidence, when viewed in favor of the nonmoving party, permits 

only one reasonable conclusion that is adverse to that party.” Id., citing State ex rel. 

Howard v. Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).

{¶34} As an initial matter, our decision in Carlson I does not preclude Rick 

from appealing the merits of the summary-judgment order against him, despite the 

fact that Carlson I addressed the merits of that order. When a court holds that it lacks 

jurisdiction, its decision does not have any preclusive effect on the merits of a claim. 

State ex rel. Schneider v. Bd. of Edn., 39 Ohio St.3d 281, 283, 530 N.E.2d 206 (1988). 

In Carlson I, we held the erroneous entry of satisfaction mooted Rick’s appeal and 

thus we had no jurisdiction to entertain Rick’s arguments. Carlson I, 1st Dist. 

Hamilton No. C-190631, 2020-Ohio-4685, at ¶ 13. Thus, Carlson I does not preclude 

Rick’s appeal.

{¶35} However, that is not to say Carlson Iis inapplicable. Both cases involve 

evidentiary challenges to the same partial-summary-judgment order. In Carlson I, we 

held that summary judgment was proper for the other Carlson defendants where:

[o]nce the city established that the Carlson defendants owned the 

properties subject to the VBML program, the dates the properties were 

acquired, and that the Carlson defendants had failed to apply for the 
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VBMLs, the trial court was capable of determining the fees owed by 

applying the VBML fee-structure contained in the municipal code.

Id. at ¶ 20. Rick argues that the trial court could not have granted summary judgment 

because there was no evidence of the dates that Rick’s properties became vacant. 

However, Exhibit D, attached to the city’s original counterclaim and evidence on 

summary judgment, lists the date that the 1861 Knox Street, 1752 Fairmount Avenue, 

1862 Knox Street, 1538 Knox Street, 1536 Knox Street, and 2457 Waveland Place 

properties were subject to the VBML under the “original vacant date column.” Those 

dates are repeated in Exhibit H as the date each property was subject to VBML 

requirements. Thus, Exhibit D provided evidence to the trial court of the dates that 

VBML fees began to accrue, and the trial court could apply the VBML fee structure 

contained in the municipal code. Consequently, summary judgment was proper for 

those properties.

{¶36} However, summary judgment was not proper regarding the

1549 Fairmount Avenue property. Exhibit D leaves the “original vacant date” and 

“amount” owed for 1549 Fairmount Avenue blank. Only Exhibit H stated that 1549 

Fairmount Avenue was subject to VBML requirements on December 23, 2008, and

calculated $25,400 in VBML fees and late penalties. But Exhibit H is not evidence, 

only a mathematical aid. Carlson I at ¶ 20. As such, Exhibit H alone is not evidence 

of the date that the 1549 Fairmount Avenue property was subject to the VBML 

requirements. Without evidence of that date, the trial court could not use the formula 

to calculate the fees owed on that property. Consequently, the trial court improperly 

relied on Exhibit H as evidence in awarding partial summary judgment for 1549 

Fairmount Avenue. However, the trial court relied on Exhibit H only as a 
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mathematical aid and properly awarded summary judgment for all of Rick’s other 

properties.

{¶37} Consequently, we sustain the fourth assignment of error regarding

1549 Fairmount Avenue only and we overrule the fourth assignment of error regarding 

1861 Knox Street, 1752 Fairmount Avenue, 1862 Knox Street, 1538 Knox Street, 

1536 Knox Street, and 2457 Waveland Place.

IV. Denial of the motion for reconsideration.

{¶38} In his fifth assignment of error, Rick argues that the trial court 

improperly weighed the evidence when denying his motion for reconsideration of the 

grant of partial summary judgment. Although Rick was the nonmoving party for 

summary judgment, he was the moving party for reconsideration. Rick contends he 

raised a genuine issue of material fact by suggesting two of his properties, 1536 Knox 

Street and 1538 Knox Street, were one building with two addresses and thus subject to 

one VBML and not two separate buildings subject to two separate VBMLs.

{¶39} We review a trial court’s ruling on a motion for reconsideration under 

an abuse-of-discretion standard because the trial court enjoys “plenary power” to rule 

on such a motion. Mindlin v. Zell, 10th Dist. Franklin No. 11AP-983, 2012-Ohio-3543, 

¶ 23, citing Groza-Vance v. Vance, 162 Ohio App.3d 510, 2005-Ohio-3815, 834 N.E.2d 

15, ¶ 53 (10th Dist.). Civ.R. 54(B) provides that a nonfinal order that disposes of fewer 

than all claims or parties or without an express determination that there is no just 

reason for delay may be “subject to revision at any time” before the entry of a final 

judgment. But Civ.R. 54(B) does not provide guidelines for when a trial court should 

grant a motion for reconsideration of a nonfinal order. Other appellate districts 

suggest reconsideration of a nonfinal order ought to be subject to the “apparent 
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justice” standard and “guided by Civ.R. 60(B) standards, albeit applied less 

rigorously.” Groza-Vance at ¶ 53, quoting Baker v. Schuler, 2d Dist. Clark 

No. 02CA0020, 2002-Ohio-5386, ¶ 22, citing Klein and Darling, Baldwin’s Ohio 

Practice, Civil Practice, Section AT 54-3 (1997 Ed.); Seniah Corp. v. Buckingham, 

Doolittle & Burroughs, LLP, 5th Dist. Stark No. 2016CA00039, 2016-Ohio-7516, ¶ 23,

quoting Mindlin v. Zell, 10th Dist. Franklin No. 11AP-983, 2012-Ohio-3543, ¶ 23.

{¶40} A review of the record shows the 1536 Knox Street and 1538 Knox 

Street properties have been treated separately throughout the litigation by both Rick 

and the city prior to Rick’s motion for reconsideration. The two properties were 

addressed separately in the city’s original counterclaim, where the city alleged they 

share a common wall but are subject to separate VBMLs. The two properties were 

listed separately in Exhibit D attached to the counterclaim and in Exhibit H attached 

to the reply in support of summary judgment. In his answer, Rick admitted the 

properties share a common wall, but did not address whether the two properties were 

the same “building” for the purposes of the VBML in either his answer or on summary 

judgment. Rick did argue that the statute of limitations barred the VBML claim for 

1536 Knox Street, that VBML fees were calculated incorrectly for 1538 Knox Street, 

and that both properties did not have running water and thus could not be billed for 

water. Thus, Rick was aware of the issue when it first arose in the city’s counterclaim, 

but chose not to raise it either in his answer or on summary judgment.

{¶41} Rick first raised the argument that the 1536 Knox Street and 1538 Knox 

Street properties were one building with two addresses and thus were subject to just

one VBML instead of two separate VBMLs for the first time in a pro se filing for 

reconsideration submitted after fully litigating the partial-summary-judgment motion 
OHIO FIRST DISTRICT COURT OF APPEALS

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with counsel. After the trial court correctly dismissed the pro se filing as an improper 

hybrid representation, Rick’s counsel submitted a motion for reconsideration where 

the argument first properly appeared before the trial court.

{¶42} Rick offered two pieces of evidence in support of his argument on 

reconsideration. First, he offered a historical Google Street View picture of the two 

addresses prior to their demolition that depict two single-story Italianate “shotgun” 

rowhouses.

2 The photo is black-and-white and depicts two different colored façades 

with slightly different stonework patterns. Each façade has its own window, raised 

door, and stairs leading up from the street. The façades adjoin each other on one wall,

separated with a vertical line that appears to be mortar. One of the façades has another 

partial adjoining wall with a third building next to it.

{¶43} Second, Rick offered records from the Hamilton County Auditor’s 

Office depicting the lots for Knox Street and the outlines of the structures constructed 

on them to allege the two buildings had the same foundation prior to being 

demolished. However, the two property lots are bisected by a black line that is the 

exact same line that marks the border of the foundation. In response, the city offered 

the Hamilton County Auditor’s property ownership records that demonstrated the 

addresses had two separate histories of ownership and were transferred 

independently of each other.

2 Italianate style rowhouses are square or rectangular buildings with a distinctive bracketed cornice 

along the top of the façade and are common in Cincinnati. See City of Cincinnati, 

Italianate: 1865 To 1890, https://www.cincinnati-oh.gov/buildings/historic-conservationold/major-architectural-styles/italianate-1865-to-1890/ (accessed Jan. 8, 2024). A “shotgun” 

rowhouse is a single-story building one room wide with other rooms lined up behind it, creating a 

straight “shot” from the front to the rear of the house.
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶44} Faced with the arguments of the parties on the motion for 

reconsideration, we hold the trial court did not abuse its discretion by concluding that 

1536 Knox Street and 1538 Knox Street were two buildings subject to separate VBMLs. 

{¶45} Accordingly, we overrule the fifth assignment of error.

Conclusion

{¶46} In sum, we overrule the first and fifth assignments of error and affirm 

the trial court’s order reinstating the judgment against Rick and the trial court’s denial 

of Rick’s motion for reconsideration respectively. We sustain the fourth assignment 

of error in part and overrule it in part and reverse the trial court’s grant of partial 

summary judgment regarding 1549 Fairmount Avenue but affirm the grant of 

summary judgment regarding Rick’s other properties. We sustain the second and 

third assignments of error and remand this cause to the trial court with instructions 

to correct the judgment to credit Rick’s voluntary payment and remove any amounts 

barred by the statute of limitations.

Judgment accordingly.

CROUSE, P.J., and BERGERON, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.