[Cite as Cincinnati v. Twang, L.L.C., 2021-Ohio-4387.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

CITY OF CINCINNATI, 

 Plaintiff-Appellee, 

 vs. 

TWANG, LLC, 

 Defendant-Appellant. 

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APPEAL NO. C-200369 

TRIAL NO. A-1803297 

O P I N I O N.

 

Civil Appeal From: Hamilton County Court of Common Pleas 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: December 15, 2021 

Andrew Garth, City Solicitor, Jonathan Roach and Jacklyn Gonzales Martin, 

Assistant City Solicitors, for Plaintiff-Appellee, 

Statman, Harris & Eyrich, LLC, and William B. Fecher, for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

 2

WINKLER, Judge.

{¶1} Appellant Twang, LLC, brings this appeal from several orders issued by the 

trial court in a lawsuit initiated by appellee the city of Cincinnati that relates to a property 

Twang owns but has failed to adequately maintain. In part, Twang challenges a judgment 

of $25,212 for unpaid fees and civil fines arising from Cincinnati Municipal Code 

violations at the property. For the reasons that follow, we affirm. 

Background Facts and Procedure 

{¶2} The property is located at 819 Elm Street in a historic district in downtown 

Cincinnati. Twang has owned the property since 2014. The property includes a multistory 

building with residential and commercial spaces. 

{¶3} In August 2016, the city of Cincinnati, through its building 

department, found the conditions of Twang’s building in violation of the city’s 

building code and ordered Twang to barricade the building, keep it vacant, and 

obtain a Vacated Building Maintenance License (“VBML”) in accordance with the 

city’s VBML program. 

{¶4} Under the city’s VBML program, the owner must pay a licensing fee 

and bring the property into compliance with minimal safety and structural integrity 

standards (“VBML standards”) for as long as the building is kept vacant. See

Cincinnati Municipal Code 1101.129 and 1101.77.3. The owner must renew the 

license each year the building remains vacant, and the renewal fees increase based on 

the number of years the property remains vacant. The failure to pay the VBML fee or 

maintain the building consistent with VBML standards can result in late fees, civil 

citations, and criminal citations. See, e.g., Cincinnati Municipal Code 1101.79.4 and 

1101.129.3. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶5} Twang did not administratively appeal the August 2016 order. 

Additionally, Twang failed to obtain a VBML and bring the vacant and blighted 

property into compliance with VBML standards. 

{¶6} The city subsequently issued six civil citations against Twang over an 

11-month period beginning in April 2017 and ending in March 2018 for failing to 

comply with the August 2016 order. Those citations assessed fines in accordance 

with the provisions of the city’s municipal code. Twang did not administratively 

appeal those citations or pay them. Twang’s continued delinquency resulted in an 

increase in the fees and fines per the schedules set forth in the city’s ordinances. 

{¶7} After almost two years of noncompliance by Twang, the city filed this civil 

action in July 2018. The city’s amended complaint set forth multiple claims. The causes of 

action included a statutory public-nuisance claim under R.C. 3767.41 that sought 

rehabilitation of the building, by a receiver if necessary, and collection claims against 

Twang for the unpaid fees and fines arising from the Cincinnati Municipal Code violations 

at the property. 

{¶8} Twang answered and requested in writing that the building be demolished. 

In September 2018, Twang applied for a certificate of noncompliance from the city’s 

Historic Conservation Board to demolish the building. After the Historic Conservation 

Board denied Twang’s request, Twang filed a counterclaim in this action. Citing R.C. 

3767.41(E), Twang requested a declaration that its own property was a public nuisance 

and an order from the court to demolish the building. Twang also moved for partial 

summary judgment on this counterclaim, arguing in essence that the trial court did not 

have to hold a hearing to determine that the building was a public nuisance in light of the 

position of the parties. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶9} The city moved to dismiss Twang’s counterclaim and opposed Twang’s 

request for summary judgment on the ground that Twang lacked standing. The city also 

filed a motion seeking partial summary judgment on its collection claims for the unpaid 

fees and fines relating to the property. 

{¶10} Twang opposed the city’s motion for partial summary judgment on the 

collection claims, but did not rebut the city’s evidence demonstrating that Twang owed the 

fees and fines and had failed to pay them. Instead, Twang argued the city could not obtain 

a judgment for the amounts sought without first establishing that the claimed fees and 

fines were not excessive under the Excessive Fines Clause of the United States 

Constitution. 

{¶11} The city addressed the Excessive Fines Clause argument in its reply, 

contending Twang could not first inject the issue into the litigation in response to the city’s 

motion for partial summary judgment. Further, the city contended Twang’s assertion that 

the city carried the burden with respect to the Excessive Fines Clause issue was flawed. 

{¶12} The trial court subsequently dismissed Twang’s counterclaim, denied 

Twang’s motion for partial summary judgment, granted the city’s motion for partial 

summary judgment on its claims for unpaid fees and fines, and certified that its judgment 

was final with respect to those orders. The city then dismissed its remaining claims 

against Twang. Twang now appeals, asserting four assignments of error for our review. 

The Assignments of Error 

{¶13} In its first assignment of error, Twang contends the trial court erred 

“in concluding that Twang lacked standing to pursue its demolition request under 

R.C. 3767.41(E).” The essence of Twang’s argument is that the trial court erred by 
OHIO FIRST DISTRICT COURT OF APPEALS 

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dismissing its counterclaim, and we recast the assignment of error to reflect this 

argument. 

{¶14} According to Twang, the trial court misinterpreted R.C. 3767.41 when 

it concluded that the statute did not afford it standing to assert a counterclaim 

seeking demolition of the building. Before an Ohio court will consider the merits of a 

legal claim, “the person or entity seeking relief must establish standing to sue.” Ohio 

Pyro, Inc. v. Ohio Dept. of Commerce, Div. of State Fire Marshal, 115 Ohio St.3d 

375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27. This case involves statutory standing, 

not common-law standing. Standing to sue may be conferred by a “specific statutory 

grant of authority.” City of Middletown v. Ferguson, 25 Ohio St.3d 71, 75, 495 

N.E.2d 380 (1986). That statute must authorize the invocation of the judicial 

process by the plaintiff. See id. at 76. 

{¶15} The interpretation of R.C. 3767.41 and whether Twang established 

standing are questions of law that we review de novo. See, e.g., Ohioans For 

Concealed Carry, Inc. v. City of Columbus, 164 Ohio St.3d 291, 2020-Ohio-6724, 172 

N.E.3d 935, ¶ 12; Satterfield v. Ameritech Mobile Communications, Inc., 155 Ohio 

St.3d 463, 2018-Ohio-5023, 122 N.E.2d 144, ¶ 16. Our main objective when 

interpreting a statute is to determine and give effect to the legislative intent, as 

ascertained primarily from the language of the statute. Satterfield at ¶ 16-17. The 

statute at issue is clear on its face and does not support Twang’s argument on 

standing. 

{¶16} R.C. 3767.41 contains provisions enabling the enforcement of 

nuisance-abatement laws with respect to certain buildings or portions of buildings 

alleged to be a “public nuisance.” Importantly, a “civil action” may be brought by a 
OHIO FIRST DISTRICT COURT OF APPEALS 

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“municipal corporation or township in which the building involved is located,” “any 

neighbor or tenant,” or certain nonprofit corporations dedicated to improving 

housing conditions in the area. R.C. 3767.41(B)(1). The “complaint” in that civil 

action must be served on the “owner of the building and all other interested parties.” 

R.C. 3767.41(B)(2)(a). “Interested party” is defined as “any owner, mortgagee, 

lienholder, tenant, or person that possesses an interest of record in any property that 

becomes subject to the jurisdiction of the court pursuant to this section, and any 

applicant for the appointment of a receiver pursuant to this section.” R.C. 

3767.41(A)(4). 

{¶17} After a mandatory hearing in the “civil action described in division 

(B)(1),” and a court determination that a public nuisance exists, the court may abate 

the nuisance in various ways. The party commencing the civil action described in 

division (B)(1) may be afforded relief from that public nuisance by a judicial order, in 

accordance with the request in the complaint. 

{¶18} For instance, the court may issue an injunction requiring the owner to 

abate the public nuisance in 30 days. R.C. 3767.41(C)(1). Alternatively, if the owner 

of the building has been afforded the opportunity to abate the public nuisance, and 

has refused or failed to do so, the court shall afford the abatement opportunity to 

other interested parties associated with the property. R.C. 3767.41(C)(2). Those 

interested parties must provide “a viable financial and construction plan” for the 

rehabilitation of the building and post security. R.C. 3767.41(C)(2). Finally, if 

necessary, the court may appoint a receiver to take possession and control of the 

building and abate the public nuisance. R.C. 3767.41(C)(2) and (3). 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶19} The statute further specifies that “[p]rior to ordering any work to be 

undertaken, or the furnishing of any materials, to abate a public nuisance under this 

section, the judge in a civil action described in division (B)(1) of this section shall 

review the submitted financial and construction plan for the rehabilitation of the 

building involved and * * * shall approve that plan” if it specifies certain financerelated information, including that “[i]f repair and rehabilitation of the building are 

found not to be feasible, the cost of demolition of the building or of the portions of 

the building that constitute the public nuisance.” R.C. 3767.41(D)(1)-(4). 

{¶20} R.C. 3767.41(E), cited by Twang in its counterclaim, provides: 

Upon the written request of any of the interested parties to have a 

building, or portions of a building, that constitute a public nuisance 

demolished because repair and rehabilitation of the building are found 

not to be feasible, the judge may order the demolition. 

{¶21} Twang recognizes that it lacks standing to bring the civil action 

described in R.C. 3767.41(B)(1). Twang’s argument, as we understand it, is that the 

“written request” language of R.C. 3767.41(E) evinces a legislative intent to afford a 

building owner standing to bring a statutory public-nuisance action seeking to 

declare its property a nuisance and obtain an order of demolition. Thus, Twang 

contends it has statutory standing to file the counterclaim. 

{¶22} Twang seemingly equates its right as an “interested party” to file a 

“written request” for demolition for a building or portion of a building with statutory 

standing to obtain judicial resolution of whether its building is a public nuisance. 

For instance, in support of its position, Twang cites Ohio Valley Associated Builders 

and Contrs. v. Kuempel, 192 Ohio App.3d 504, 2011-Ohio-756, 949 N.E.2d 582 (2d 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Dist.). In that case, a builders and contractors association brought an action against 

a bidder alleging the bidder had violated the state’s prevailing-wage law. The court 

of common pleas granted summary judgment against the association due to a lack of 

standing. The court of appeals reversed, determining in part that the association had 

statutory standing to bring a prevailing-wage-law claim even though it lacked 

common-law standing. Id. at ¶ 22. The relevant statute, however, actually authorized 

the “fil[ing] [of] a complaint in the court of common pleas.” R.C. 4115.16(B). 

{¶23} We concur with the trial court’s determination in this case that R.C. 

3767.41(E) only affords an “interested part[y]” the right to make a “written request” 

for demolition at a certain time during the “civil action” referenced in R.C. 

3767.41(B)(1). R.C. 3767.41(E) does not authorize a claim or counterclaim or the 

filing of a complaint. 

{¶24} Further, the language of R.C. 3767.41 does not otherwise confer 

standing on Twang to commence a public-nuisance-abatement action. Twang does 

not fall under one of the categories of entities or persons mentioned in R.C. 

3767.41(B)(1) as authorized to bring a complaint under R.C. 3767.41 to abate an 

alleged public nuisance. Because Twang does not fall under one of the categories of 

parties with standing to commence a civil action under R.C. 3767.41, the legislature 

did not confer on Twang standing to bring a statutory-public-nuisance claim. This 

conclusion avoids the absurd result of Twang suing itself for the abatement of an 

alleged public nuisance located in the building it owns and for which it claims 

responsibility for creating. Twang, as owner, is not a proper plaintiff to litigate the 

public-nuisance claim. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶25} In sum, the trial court properly dismissed Twang’s counterclaim 

because R.C. 3767.41(E) does not authorize a civil action and Twang admittedly is 

not one of the entities or individuals mentioned in R.C. 3767.41(B)(1) that are 

afforded standing to proceed on a statutory-public-nuisance claim. Consequently, 

we overrule the first assignment of error. 

{¶26} In its second assignment of error, Twang argues the trial court erred 

by denying its motion for partial summary judgment on the issue of whether the 

building was a “public nuisance.” We refrain from reviewing this assignment of 

error, even to determine whether the order denying partial summary judgment was 

final and appealable, because the issue involved is moot. 

{¶27} Our duty as an appellate court is to decide controversies between 

parties that can be carried into effect, and we need not render an advisory opinion on 

a moot question or question of law that cannot affect the issues in the case. Schwab 

v. Lattimore, 166 Ohio App.3d 12, 2006-Ohio-1372, 848 N.E.2d 912, ¶ 10 (1st Dist.). 

The city has dismissed its claims seeking the declaration and abatement of the 

claimed public nuisance, and this court has upheld the dismissal of Twang’s 

counterclaim seeking similar relief. This court can grant no relief to Twang, even if 

we were to hold the trial court erred in denying Twang’s motion for partial summary 

judgment. Accordingly, we decline to address the second assignment of error. 

{¶28} Next we address Twang’s third assignment of error. Twang contends 

the trial court erred by granting summary judgment to the city on the collection 

claims. We review the grant of summary judgment de novo, applying the standards 

set forth in Civ.R. 56. See Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 

N.E.2d 712, ¶ 8. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶29} Civ.R. 56(C) mandates the entry of summary judgment if the evidence, 

properly submitted, shows that there is no genuine issue as to any material fact and 

that the moving party is entitled to judgment as a matter of law. 

{¶30} Civ.R. 56(E) states that when a motion for summary judgment is 

properly made and supported, the nonmoving party may not rest upon the mere 

allegations or denials of the pleadings. Instead, the burden shifts to the nonmoving 

party, and the nonmoving party's response must set forth specific facts showing that 

there is a genuine issue for trial. If the nonmoving party does not so respond, 

summary judgment, if appropriate, may be entered against the nonmoving party. 

Todd Dev. Co. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 11. 

{¶31} Twang does not dispute that the fees and fines arose under the city’s 

ordinances and that it failed to rebut the city’s evidence that it owed the fees and 

fines and failed to pay them. Twang argues disputed issues of material fact remain as 

to whether the amounts due exceed what is permissible under the Excessive Fines 

Clause. 

{¶32} The Eighth Amendment provides that “Excessive bail shall not be 

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 

Eighth Amendment to the U.S. Constitution. The Excessive Fine Clause “limits the 

government's power to extract payments, whether in cash or in kind, ‘as punishment 

for some offense.’ ” Austin v. United States, 509 U.S. 602, 609-610, 113 S.Ct. 2801, 

125 L.Ed.2d 488 (1993), quoting Browning-Ferris Industries of Vermont, Inc. v. 

Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989). 

{¶33} Generally, a fine imposed as punishment is excessive under the 

Excessive Fines Clause “if it is grossly disproportional to the gravity of a defendant’s 
OHIO FIRST DISTRICT COURT OF APPEALS 

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offense.” United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 141 

L.Ed.2d 314 (1998), cited in Towers v. City of Chicago, 173 F.3d 619, 624 (7th 

Cir.1999). The Excessive Fines Clause is incorporated by the Fourteenth 

Amendment’s Due Process Clause and applies to state and local governments. See

Timbs v. Indiana, 586 U.S. __, 139 S.Ct. 682, 687, 203 L.Ed.2d 11 (2019). 

{¶34} When opposing summary judgment, Twang argued the city had the 

burden to establish that the fees and fines were not excessive under the Excessive 

Fines Clause. In support of this argument, Twang relied on Etzler v. City of 

Cincinnati, S.D.Ohio No. 1:07-cv-1035, 2013 WL 1196649 (Mar. 25, 2013). 

{¶35} In Etzler, property owners filed a lawsuit against the city alleging in 

part that the VBML fees due under city ordinances violated the Excessive Fines 

Clause. To obtain summary judgment on the claim, the city was required to present 

evidence that the VBML fees were not constitutionally excessive. Unlike in Etzler, 

Twang did not file a claim seeking a declaration that the ordinances giving rise to the 

unpaid fees and fines were unconstitutional under the Excessive Fines Clause. Thus, 

Etzler does not support Twang’s position. 

{¶36} Here, the city moved for summary judgment on its collection claims. 

To establish a prima facie case on a collection claim, the city was not required to 

establish that the amounts due under the city’s ordinances did not offend the 

Excessive Fines Clause. Admittedly, the facts of this case differ from ordinary 

collection actions because the amount of the alleged debt is based on fee and fine 

schedules set forth in municipal ordinances. But absent exceptions not applicable 

here, a duly-enacted municipal ordinance is presumptively constitutional and 

binding, which leaves the challenger with the burden of proving the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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unconstitutionality of the ordinance. See Arnold v. Cleveland, 67 Ohio St.3d 35, 38, 

616 N.E.2d 163 (1993); City of Univ. Hts. v. Dachman, 20 Ohio App.3d 26, 484 

N.E.2d 199 (8th Dist.1984). 

{¶37} This presumption of constitutionality applies even where, as here, the 

challenger’s argument is that legislation is unconstitutional as applied to the specific 

facts of a case. See Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, 55 N.E.2d 

629 (1944), paragraph six of the syllabus. Twang resists characterizing its Excessive 

Fine Clause argument as an as-applied constitutional challenge to the ordinances, 

but that is the effect of Twang’s argument. The city carried no burden on this issue 

when moving for summary judgment on the collection claims. 

{¶38} Additionally, Twang’s Excessive Fine Clause challenge was not 

properly raised in this case. The record supports the city’s position in its reply 

memorandum in support of partial summary judgment that Twang improperly 

raised the Excessive Fines Clause challenge for the first time in its memorandum 

opposing summary judgment. 

{¶39} Civ.R. 8(C) requires that a defendant set forth any affirmative defense 

in its answer. Our review indicates that in Twang’s answer to the amended 

complaint, Twang asserted a constitutional-based “Takings Clause” affirmative 

defense that referenced language in the city’s amended complaint requesting the 

appointment of a receiver. That affirmative defense made no reference to the 

collection claims or the Excessive Fines Clause, and cannot fairly be read to include 

an Excessive Fine Clause challenge. We conclude that Twang’s affirmative defense 

based on the Takings Clause was insufficient to notify the city of an affirmative 

defense to the collection claims based on the Excessive Fines Clause. See Brown v. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Village of Lincoln Hts., 195 Ohio App.3d 149, 2011-Ohio-3551, 958 N.E.2d 1280, ¶ 11 

(1st Dist.). This failure resulted in a waiver of the defense. See id. at ¶ 10. 

{¶40} We find the application of the waiver doctrine particularly appropriate 

in this case because the record demonstrates Twang directly contributed to the 

increasing monetary obligation that it belatedly characterized as “excessive” by 

failing to timely use the administrative and judicial avenues afforded to obtain 

review or a reprieve. Twang simply ignored the city’s repeated efforts to bring the 

property into compliance with the city’s building code until after the city filed this 

lawsuit. Although the trial court did not specifically address the city’s waiver 

argument in its entry, Twang’s failure to timely raise the Excessive Fines Clause 

challenge is an alternative basis for affirming the trial court’s grant of partial 

judgment to the city. 

{¶41} Ultimately, the city established there was no genuine issue of material 

fact and that it was entitled to judgment as a matter of law on the collection claims. 

Accordingly the trial court did not err by granting the city’s motion for summary 

judgment on those claims. Consequently, we overrule the third assignment of error. 

{¶42} Finally, we turn to Twang’s fourth assignment of error. Twang does 

not identify the judgment or order, or aspect of a judgment or order, that it believes 

the trial court entered in error. See App.R. 16(3). Instead, Twang seeks an opinion 

on whether the Historic Conservation Board’s denial of Twang’s request for a 

certificate of appropriateness to demolish the building can have a res judicata effect 

in future trial court proceedings. This is not a proper assignment of error and we 

disregard it, as Twang is merely seeking an advisory opinion that this court is 

prohibited from issuing. See, e.g., Egan v. Natl. Distillers & Chem. Corp., 25 Ohio 
OHIO FIRST DISTRICT COURT OF APPEALS 

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St.3d 176, 495 N.E.2d 904 (1986), syllabus; Youngstown State Univ. v. State Emp. 

Relations Bd., 2016-Ohio-2649, 49 N.E.3d 382 (10th Dist.); In re A.F., 1st Dist. 

Hamilton Nos. C-190680 and C-190721, 2020-Ohio-5420, ¶ 11. 

Conclusion 

{¶43} For the foregoing reasons, we affirm the trial court’s judgment. 

Judgment affirmed. 

ZAYAS, P.J., and MYERS, J., concur. 

Please note: 

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