author: FRANK D. CELEBREZZE, JR., J.:

text:
    Mary KINASZ, Plaintiff-Appellant v. Blake DICKSON, et al., Defendants-Appellees
    No. 106068
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 3, 2018
    Mary Kinasz, pro se, 2502 West 7th Street, Cleveland, Ohio 44113, FOR APPELLANT.
    Blake A. Dickson, The Dickson Firm, L.L.C., Enterprise Place, Suite 420, 3401 Enterprise Parkway, Cleveland, Ohio 44122, ATTORNEY FOR APPELLEE.
    BEFORE: Celebrezze, J., Kilbane, P.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Plaintiff-appellant, Mary Kinasz, individually and as the executor of the estate of Justyna Kinasz ("appellant"), brings this appeal challenging the trial court's order granting summary judgment in favor of defendants-appellees, Blake Dickson, et al. ("Dickson"), regarding appellant's claim for legal malpractice. Specifically, appellant argues that genuine issues of material fact existed that precluded the granting of summary judgment. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} The instant matter arose from a dispute between appellant and Dickson regarding Dickson's representation in Cuyahoga C.P. No. CV-11-766580, a nursing home negligence case. The negligence case settled in January 2013.

{¶ 3} In Cuyahoga C.P. No. CV-15-850029, appellant filed a complaint for legal malpractice against Dickson on August 20, 2015. On February 4, 2016, appellant filed a notice of voluntary dismissal pursuant to Civ.R. 41(A)(1)(a). The trial court dismissed the case without prejudice on February 5, 2016.

{¶ 4} Appellant refiled her legal malpractice claim against Dickson on February 3, 2017. Appellant requested $25,000 in compensatory damages, punitive damages, attorney fees, and costs.

{¶ 5} On April 7, 2017, Dickson filed a motion for summary judgment, arguing that appellant's claim was barred by the one-year statute of limitations and that she failed to establish damages. Appellant filed a brief in opposition to Dickson's summary judgment motion on June 7, 2017.

{¶ 6} On July 10, 2017, the trial court granted Dickson's motion for summary judgment. The trial court's judgment entry provides, in relevant part, "construing all facts in favor of [appellant] and finding no genuine issue of material fact remains, the court hereby grants [Dickson's] motion for summary judgment."

{¶ 7} It is from this judgment that appellant filed the instant appeal on July 28, 2017. She assigns one error for review:

I. The trial court erred in granting [Dickson's] motion for summary judgment finding that there are no genuine issues of material fact.

II. Law and Analysis

A. Standard of Review

{¶ 8} Summary judgment, governed by Civ.R. 56, provides for the expedited adjudication of matters where there is no material fact in dispute to be determined at trial. In order to obtain summary judgment, the moving party must show that "(1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion when viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party." Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. , 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).

{¶ 9} The moving party has the initial responsibility of establishing that it is entitled to summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). "[I]f the moving party meets this burden, summary judgment is appropriate only if the nonmoving party fails to establish the existence of a genuine issue of material fact." Deutsche Bank Natl. Trust Co. v. Najar , 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, 2013 WL 1791372, ¶ 16, citing Dresher at 293, 662 N.E.2d 264.

{¶ 10} Once a moving party demonstrates no material issue of fact exists for trial and the party is entitled to judgment, the nonmoving party has a duty to come forth with argument and evidence demonstrating a material issue of fact does exist that would preclude judgment as a matter of law. Dresher at id. Summary judgment is appropriate if the nonmoving party fails to meet this burden. Id.

{¶ 11} As noted above, Dickson argued in his summary judgment motion that appellant's legal malpractice claim was barred by the applicable one-year statute of limitations and that appellant failed to establish damages. The trial court granted Dickson's motion for summary judgment, concluding that there was no genuine issue as to any material fact. The trial court did not, however, specify whether its determination was based on the statute of limitations, the issue of damages, or both.

B. Statute of Limitations

{¶ 12} Appellant filed her original complaint on August 20, 2015. She refiled her complaint in the instant matter on February 3, 2017.

The statute of limitations for a legal malpractice claim is one year after the cause of action accrued. R.C. 2305.11(A). The cause of action accrues when there is a cognizable event by which the plaintiff discovers or should have discovered the injury giving rise to a claim and is put on notice of a need to pursue his possible remedies against the attorney, or when the attorney-client relationship for that particular transaction terminates, whichever occurs later. Zimmie v. Calfee, Halter & Griswold , 43 Ohio St.3d 54, 538 N.E.2d 398 (1989), syllabus.

Fourtounis v. Verginis , 8th Dist. Cuyahoga No. 105349, 2017-Ohio-8577, 101 N.E.3d 101, ¶ 16.

{¶ 13} In his motion for summary judgment, Dickson argued that appellant's legal malpractice claim was time-barred because (1) a "cognizable event" occurred more than one year before her original complaint was filed, and (2) Dickson filed a motion to withdraw as counsel and appellant retained new counsel more than one year before she filed her original complaint.

{¶ 14} In her brief in opposition, appellant argued that the statute of limitations should have been extended because (1) Dickson filed a motion to withdraw as appellant's counsel on March 31, 2014, which the trial court granted on September 9, 2014; (2) on December 5, 2014, she discovered that Dickson continued working on the nursing home negligence case after she fired him on March 21, 2014, and that Dickson defrauded the estate out of $55,000; and (3) in August and September 2014, she learned that Dickson manipulated the nursing home negligence lawsuit and altered the outcome of the case. Appellant further asserted that she did not discover the information in the trial court's September 9, 2014 judgment entry in CV-11-766580 until May 2017. The trial court's judgment entry, addressing Dickson's motions to intervene and to withdraw as appellant's counsel, provides, in relevant part:

The stipulation for dismissal and judgment entry, filed on 1/11/2013, in the instant action states that "the attorneys for the respective parties, do hereby stipulate the within case has been settled, to be dismissed with prejudice at defendant's cost, at a sum approved by both parties'." The stipulation for dismissal was an unconditional dismissal[.] It did not state that this court shall retain jurisdiction over any and all post dismissal settlement issues and dispute. The stipulation for dismissal dated January 11, 2013, dismisses the case with prejudice, without any further filings as to the dismissal or settlement agreement in the instant action. Therefore, this court does not have jurisdiction to entertain [Dickson's] motion to intervene in order to assert claim for unpaid attorney's fees and costs.

Finally, appellant suggested that after she fired Dickson, he purposefully withheld her case files and was uncooperative, aggressive, verbally abusive, and disrespectful towards her to ensure that the statute of limitations expired.

{¶ 15} After reviewing the record, we find that appellant's legal malpractice claim falls outside the one-year statute of limitations under both the "cognizable event" test and the termination of the attorney-client relationship test.

1. Cognizable Event

{¶ 16} In his motion for summary judgment, Dickson argued that appellant's legal malpractice claim was time-barred because a "cognizable event" occurred on January 11, 2013, when appellant was dissatisfied with Dickson's representation and the settlement he obtained.

A "cognizable event" is an event that is " 'sufficient to alert a reasonable person that his or her attorney may have committed an improper act and that further investigation is needed.' " Dottore v. Vorys, Sater, Seymour & Pease, L.L.P. , 8th Dist. Cuyahoga No. 98861, 2014-Ohio-25 [2014 WL 72538] ¶ 58, quoting Trustees of Ohio Carpenters' Pension Fund v. U.S. Bank Natl. Assn. , 189 Ohio App.3d 260, 2010-Ohio-911, 938 N.E.2d 61 (8th Dist). The focus is on what the client is or should be aware of and how a reasonable person would react under the circumstances. "The 'cognizable event' puts the plaintiff on notice to investigate the facts and circumstances relevant to his or her claim in order to pursue remedies." Asente v. Gargano , 10th Dist. Franklin No. 04AP-278, 2004-Ohio-5069 [2004 WL 2803417] ¶ 14, citing Flowers v. Walker , 63 Ohio St.3d 546, 549, 589 N.E.2d 1284 (1992). The plaintiff need not have discovered "all of the relevant facts necessary to file a claim" or know the "full extent of the injury" before there is a cognizable event sufficient to trigger the statute of limitations. [ Zimmie, 43 Ohio St.3d at 58, 538 N.E.2d 398 ]; Asente at ¶ 14 ; see also [ Krzywicki v. Gay , 8th Dist. 8th Dist. Cuyahoga No. 105039, 2017-Ohio-5584, 2017 WL 2817594 ¶ 17 ] ("An individual need not be fully aware of the extent of his legal malpractice injuries; knowledge of a potential problem starts the statute to run, even when one does not know all the details."). "Rather, it is enough that some noteworthy event, the cognizable event, has occurred that does or should alert a reasonable person that a questionable legal practice may have occurred." Asente at ¶ 14.

Socha v. Weiss , 8th Dist. Cuyahoga, 2017-Ohio-7610, 97 N.E.3d 818, ¶ 13.

{¶ 17} In her complaint for legal malpractice, appellant raises the following allegations against Dickson: (1) Dickson repeatedly withheld material information from her that obstructed her ability to participate in the case; (2) Dickson refused to provide her with records belonging to her mother in February 2014; (3) Dickson conducted himself in a manner that gave appellant the impression that he would only complete tasks that he wanted to complete, rather than tasks that appellant wanted him to complete; (4) Dickson yelled at appellant and directed profanities at her in order to intimidate her, impede her participation in the case, reduce his own workload, and obtain a settlement that was favorable to him, rather than appellant; (5) Dickson failed to follow appellant's explicit instructions regarding settlement on January 10, 2013; (6) Dickson dismissed the case with prejudice without appellant's knowledge or approval; (7) Dickson failed to inform appellant about material events related to the settlement; (8) Dickson failed to memorialize the settlement agreement in a timely fashion; (9) Dickson deliberately delayed settlement to obtain a settlement that was favorable to him; and (10) Dickson's conduct during the representation and in settlement negotiations fell below the ordinary standard of care.

{¶ 18} The allegations in appellant's complaint clearly indicate that a "cognizable event" alerting appellant of a potential problem or that Dickson committed an improper act in his representation occurred as early as January 10, 2013, when the nursing home negligence case was settled. In her complaint, appellant explains that on or about January 10, 2013, when Dickson presented a settlement document to her,

errors were discovered in the document few minutes after signing. Among other things, the document was discovered to contain erroneous dates that extended settlement payments deep into the future, and which Dickson knew would materially impact [appellant's] willingness to enter into the settlement. Dickson showed little regard for [appellant's] concerns[.]

Complaint at ¶ 12. This assertion demonstrates that appellant knew, or should have known, that a questionable legal practice may have occurred in January 2013.

{¶ 19} In her complaint, appellant goes on to allege that she did not know the "full extent" of Dickson's improper conduct until December 2014 when he turned over her case files to appellant's new counsel. Complaint at ¶ 15. As noted above, there is no requirement that a plaintiff know all of the relevant facts or the full extent of his or her injury in order for there to be a cognizable event triggering the statute of limitations. Socha , 8th Dist. Cuyahoga, 2017-Ohio-7610, 97 N.E.3d at 823, at ¶ 13, citing Zimmie , 43 Ohio St.3d at 58, 538 N.E.2d 398. In this case, even if appellant did not know all of the relevant facts or the full extent of her injuries until she received her case files from Dickson, the allegations in her complaint clearly demonstrate that she was "on notice" of Dickson's allegedly questionable legal practices in January 2013. See Chernett Wasserman Yarger, L.L.C. v. ComScape Holding, Inc. , 8th Dist. Cuyahoga No. 100907, 2014-Ohio-4214, 2014 WL 4748513, ¶ 40-44 (rejecting argument that attorney's alleged legal malpractice continued and that the statute of limitations on the legal malpractice claim did not begin to run until attorney returned client's legal file). Accordingly, appellant's subsequent discoveries did not toll the statute of limitations.

{¶ 20} The evidence that Dickson submitted in support of his motion for summary judgment supported his argument that a "cognizable event" occurred, putting appellant on notice, more than one year before she filed her original complaint in August 2015. First, Dickson submitted a copy of a November 5, 2013 letter in which appellant requested that he provide various information and documentation to her, and asserted that she would "notify the Bar Association" if Dickson failed to provide the information requested. Second, Dickson submitted a copy of the grievance that appellant filed against him with the Cleveland Metropolitan Bar Association on March 12, 2014. Third, Dickson submitted a copy of a June 2, 2014 letter that appellant's new counsel wrote to the Cleveland Metropolitan Bar Association. In this letter, appellant's new attorney asserted that appellant retained him on March 27, 2014, and that appellant "came to [him] stating that [Dickson] had not yet obtained the settlement funds and refused to discuss the status of the [M]edicare lien with her." Counsel further stated that Dickson failed to provide appellant with information about the Medicare lien, Dickson's fees, and the litigation expenses that appellant advanced to Dickson. These documents demonstrate that a "cognizable event" alerted, or should have alerted appellant, that a questionable legal practice may have occurred more than one-year before appellant filed her original complaint in August 2015.

{¶ 21} Based on the foregoing analysis, we find that appellant filed her original legal malpractice complaint more than one year after a "cognizable event" occurred.

2. Termination of the Attorney-Client Relationship

{¶ 22} Dickson went on to argue in his summary judgment motion that appellant's legal malpractice complaint was time-barred because he moved to withdraw as counsel and appellant retained new counsel more than one year before she filed the original complaint in August 2015.

Generally, the determination of whether an attorney-client relationship has ended is a factual question to be resolved by the trier of fact. Mobberly v. Hendricks , 98 Ohio App.3d 839, 843, 649 N.E.2d 1247 (9th Dist. 1994). As recognized by the Ohio Supreme Court, "the question of when an attorney-client relationship for a particular undertaking or transaction has terminated is necessarily one of fact." [ Omni-Food & Fashion v. Smith , 38 Ohio St.3d 385, 388, 528 N.E.2d 941 (1988).] But one party or the other may undertake affirmative actions that are so inconsistent with a continued relationship that the question of when an attorney-client relationship has ended may be taken away from the trier of fact, and decided as a matter of law. Steindler v. Meyers, Lamanna & Roman , 8th Dist. Cuyahoga No. 86852, 2006-Ohio-4097 [2006 WL 2297204] ¶ 11. Also, "where reasonable minds can come but to one conclusion from the evidence to determine when the attorney-client relationship ends, the termination may be decided as a matter of law." McGlothin v. Schad , 194 Ohio App.3d 669, 2011-Ohio-3011, 957 N.E.2d 810 (12th Dist.), citing Trombley v. Calamunci, Joelson, Manore, Farah & Silvers, L.L.P. , 6th Dist. Lucas No. L-04-1138, 2005-Ohio-2105 [2005 WL 1009841] ¶ 43.

Accelerated Sys. Integration, Inc. v. Ritzler, Coughlin & Swansinger, Ltd. , 8th Dist. Cuyahoga No. 97481, 2012-Ohio-3803, 2012 WL 3608795, ¶ 43.

{¶ 23} "Generally, the attorney-client relationship is consensual, subject to termination by acts of either party." Columbus Credit Co. v. Evans , 82 Ohio App.3d 798, 804, 613 N.E.2d 671 (10th Dist. 1992). "A client may terminate the relationship at any time." Id. In order to determine the date of the termination of the attorney-client relationship, the parties' actions must be considered. Smith v. Conley , 109 Ohio St.3d 141, 2006-Ohio-2035, 846 N.E.2d 509, ¶ 9.

{¶ 24} In the instant matter, appellant's complaint alleged that Dickson began representing her "not later than July 16, 2012[.]" Complaint at ¶ 8. In her brief in opposition to Dickson's summary judgment motion, appellant asserted that she fired Dickson on March 21, 2014.

{¶ 25} In support of his motion for summary judgment, Dickson submitted a letter that appellant wrote to him on March 21, 2014. Therein, appellant stated, "You and your Associates are terminated from representing the Estate of Justyna Kinasz and Myself, regarding the Settlement of the Harborside Case and any Probate matters." After receiving this letter, Dickson filed a motion to withdraw as counsel on March 31, 2014.

{¶ 26} We find that this constitutes clear, unequivocal evidence of appellant's termination of the attorney-client relationship. The language of appellant's March 21, 2014 letter was patently inconsistent with a continued attorney-client relationship between appellant and Dickson. Accordingly, the question of when the attorney-client relationship between appellant and Dickson was terminated was properly decided as a matter of law. See Steindler , 8th Dist. Cuyahoga No. 86852, 2006-Ohio-4097, at ¶ 11, 15.

{¶ 27} Finally, we note that appellant asserted in her brief in opposition that on December 5, 2014, she discovered that Dickson had continued working on the nursing home negligence case after she fired him on March 21, 2014. She did not, however, allege that Dickson continued to do any work for her, or that he provided any legal counsel to her relating to the nursing home negligence case at any time after the case was settled in January 2013 or after she fired Dickson.

{¶ 28} Based on the foregoing analysis, we find that appellant filed her original legal malpractice complaint more than one year after the attorney-client relationship terminated. Accordingly, appellant's sole assignment of error is overruled.

{¶ 29} Based on our determination that appellant's claim was barred by the one-year statute of limitations, we need not consider, as an alternative basis for granting summary judgment in favor of Dickson, whether appellant failed to establish damages proximately caused by Dickson's alleged breach of his professional duty arising from the attorney-client relationship.

III. Conclusion

{¶ 30} Viewing the evidence in a light most favorable to appellant, as we must, we find that appellant failed to demonstrate the existence of a genuine issue of material fact in order to defeat Dickson's motion for summary judgment, and that reasonable minds can only conclude that appellant's legal malpractice claim was time-barred under both the "cognizable event" and the termination of the attorney-client relationship tests. Accordingly, the trial court properly granted summary judgment in favor of Dickson.

{¶ 31} Judgment affirmed.

MARY EILEEN KILBANE, P.J., and LARRY A. JONES, SR., J., CONCUR


source: Caselaw Access Project

author: PIETRYKOWSKI, J.

license: Public Domain

text:
    STATE of Ohio, Appellee v. Destiny EDWARDS, Appellant
    No. WD-17-016
    Court of Appeals of Ohio, Sixth District, Wood County.
    Decided: May 4, 2018
    Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
    Mollie B. Hojnicki-Mathieson, for appellant.
    DECISION AND JUDGMENT
   PIETRYKOWSKI, J.

{¶ 1} Defendant-appellant, Destiny Edwards, appeals the April 21, 2017 judgment of the Wood County Court of Common Pleas which, following a jury trial finding her guilty of identity fraud and complicity in the misuse of a credit card, sentenced appellant to two years of community control. For the reasons that follow, the misuse of a credit card conviction is affirmed, but the identify fraud conviction is reversed and vacated.

{¶ 2} The relevant facts of this case are as follows. On April 7, 2016, a two-count indictment was filed charging appellant with identity fraud, R.C. 2913.49(B), a fifth-degree felony, and misuse of a credit card, R.C. 2923.03(A)(2)(F), a fourth-degree felony. The charges stemmed from an incident on March 5, 2016, in Perrysburg Township, Wood County, Ohio, where appellant and another individual were arrested for the alleged unauthorized use of the Best Buy credit card information of a third individual and making purchases totaling $4,907.34.

{¶ 3} On September 14, 2016, appellant filed a motion to suppress any written, oral, or recorded statements of appellant arguing that her statements to police in the Best Buy parking lot were given under duress and coercion and without appellant first being advised of her rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A hearing on the motion to suppress was held on December 1, 2016. A Perrysburg Township Police officer and appellant testified. On December 15, 2016, the trial court denied the motion finding that although appellant was not told that she could leave the scene when she was approached by police, she was, in fact, free to walk away. The court further found that once appellant was placed in handcuffs and arrested, no further questions were asked of her. The court found that appellant failed to provide any evidence supporting her assertion that her statements were involuntary or the result of duress, coercion, or threats.

{¶ 4} A jury trial in the matter commenced on January 5, 2017. Testimony of a Best Buy employee, the arresting officer, and the victim was presented by the state. Appellant testified on her own behalf. At the close of the state's case appellant moved for acquittal pursuant to Crim.R. 29 ; the motion was denied. Appellant renewed the motion at the close of her case, it was again denied. The jury found appellant guilty of the charges in the indictment.

{¶ 5} Appellant was sentenced on April 21, 2017, to concurrent two-year terms of community control with various conditions. Appellant filed a notice of appeal and raises four assignments of error for our review:

First Assignment of Error: The trial court erred when it denied appellant's motion to suppress.
Second Assignment of Error: The evidence at appellant's trial was insufficient to support the conviction of identity fraud.
Third Assignment of Error: Appellant's convictions are against the manifest weight of the evidence.
Fourth Assignment of Error: Appellant's offenses were allied offenses of similar import and subject to merger.

{¶ 6} Appellant's first assignment of error challenges the trial court's denial of her motion to suppress statements she believes were made during a custodial interrogation and without first being advised of her constitutional rights under Miranda v. Arizona , supra .

{¶ 7} Review of a trial court's grant or denial of a motion to suppress presents mixed questions of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. An appellate court defers to a trial court's factual findings made with respect to its ruling on a motion to suppress where the findings are supported by competent, credible evidence. Id. See also State v. Brooks , 75 Ohio St.3d 148, 154, 661 N.E.2d 1030 (1996). "[T]he appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Burnside at ¶ 8, citing State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

{¶ 8} It is well-settled that when police take a suspect into custody, they are required to give Miranda warnings before subjecting the suspect to interrogation. State v. Gumm , 73 Ohio St.3d 413, 429, 653 N.E.2d 253 (1995), citing State v. Roe , 41 Ohio St.3d 18, 21, 535 N.E.2d 1351( 1989). Miranda requires that a suspect in custody must be warned prior to questioning that the suspect has the right to remain silent, that anything that is said can be used against the suspect in a court of law, that the suspect has the right to the presence of an attorney, and that if the suspect desires an attorney but cannot afford one, an attorney will be appointed prior to any questioning. Miranda , supra , at 479, 86 S.Ct. 1602.

{¶ 9} "Where a custodial interrogation exists, the State bears the burden of establishing compliance with Miranda and a waiver of the defendant's Miranda rights. But the threshold burden of demonstrating the existence of a custodial interrogation rests with the defendant. * * *." (Citation omitted.) State v. Muncy , 2d Dist. Montgomery No. 21563, 2007-Ohio-1675, 2007 WL 1057007, fn. 1. Ultimately, statements that are elicited by police through custodial interrogation in violation of a suspect's Miranda rights cannot be introduced at trial as evidence of his guilt. Berkemer v. McCarty , 468 U.S. 420, 428, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

In determining whether a person is in custody * * * the initial step is to ascertain whether, in light of "the objective circumstances of the interrogation," a "reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave." And in order to determine how a suspect would have "gauge[d]" his "freedom of movement," courts must examine "all of the circumstances surrounding the interrogation." Relevant factors include the location of the questioning, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.
Determining whether an individual's freedom of movement was curtailed, however, is simply the first step in the analysis, not the last. Not all restraints on freedom of movement amount to custody for purposes of Miranda . We have "decline[d] to accord talismanic power" to the freedom-of-movement inquiry, and have instead asked the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda . "Our cases make clear ... that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody." (Internal citations omitted.) Howes v. Fields , 565 U.S. 499, 508-09, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012).

{¶ 10} At the December 1, 2016 suppression hearing, Perrysburg Township Police Officer James Gross testified that on March 5, 2016, he was dispatched to the Best Buy store in Perrysburg Township, Wood County, Ohio, on a claimed incident of credit card fraud. Officer Gross testified that he made contact with one of the two suspects on the sidewalk adjacent to the parking lot. He stated that when he made contact with appellant he did not restrict her ability to leave, he did not have his weapon drawn or indicate that she was under arrest.

{¶ 11} During cross-examination, Officer Gross clarified that he was the third officer to approach appellant; they all arrived close in time. There were two patrol vehicles parked in the fire lane adjacent to the sidewalk. Officer Gross denied that any of the officers were "right up in [appellant's] face." Officer Gross indicated that he was in uniform and carrying his weapon when speaking with appellant.

{¶ 12} Appellant testified that she was questioned in front of the Best Buy store and that she was not read her Miranda warnings. Appellant stated that four officers were circled around her, essentially "[s]houlder-to-shoulder, foot-to-foot," and they advised her that she could not leave. Appellant stated that she was questioned before and after she was handcuffed and placed in the police cruiser.

{¶ 13} Denying appellant's motion to suppress, the trial court specifically found that the witnesses gave conflicting testimony and that it found Officer Gross's testimony to be credible. The court specifically found that appellant's freedom of movement was not restricted during questioning and that once she was handcuffed and placed in the police cruiser any questioning ceased.

{¶ 14} Upon review, we agree that a reasonable person in appellant's position would have understood that during the police questioning there was no formal arrest or restraint on her freedom of movement of the degree associated with a formal arrest. Thus, we conclude that appellant was not subject to a custodial interrogation and the trial court properly denied her motion to suppress. Appellant's first assignment of error is not well-taken.

{¶ 15} Appellant's second assignment of error asserts that her conviction for identity fraud was not supported by sufficient evidence. "A sufficiency of the evidence argument challenges whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law." State v. Shaw , 2d Dist. Montgomery No. 21880, 2008-Ohio-1317, 2008 WL 748365, ¶ 28, citing State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence, the appellate court's duty is to examine the evidence admitted at trial and determine "whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The standard is, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id.

{¶ 16} In this case, appellant was convicted of one count of identity fraud, R.C. 2913.49(B), which provides:

(B) No person, without the express or implied consent of the other person, shall use, obtain, or possess any personal identifying information of another person with intent to do either of the following:
(1) Hold the person out to be the other person;
(2) Represent the other person's personal identifying information as the person's own personal identifying information.

{¶ 17} Appellant argues that because neither she nor her accomplice claimed to be the victim or used the Best Buy information as their own, the intent element was not met. We agree.

{¶ 18} When interpreting a statute, a court must presume that the legislature meant exactly what it said and cannot delete or add words. Cleveland Elec. Illuminating Co. v. Cleveland , 37 Ohio St.3d 50, 524 N.E.2d 441 (1988), paragraph three of the syllabus. In the present matter, it is undisputed that there was no evidence presented that either appellant or her accomplice either held themselves out as the victim or represented the victim's personal identifying information as their own.

{¶ 19} Accordingly, we find that there was insufficient evidence presented at trial to establish the elements of identify fraud under R.C. 2913.49(B). Appellant's second assignment of error is well-taken.

{¶ 20} In her third assignment of error, appellant argues that her convictions were against the manifest weight of the evidence. Under a manifest weight standard, the court sits as the "thirteenth juror" analyzing the entire record to deduce the relative weight of credible evidence. Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541. However, "the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The conviction should be reversed, and a new trial ordered, only in those " 'exceptional case[s] in which the evidence weighs heavily against the conviction.' " Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Thus, a conviction will only be overturned under the manifest weight standard when " 'the jury clearly lost its way and created * * * a manifest miscarriage of justice.' " Id. , quoting Martin at 175, 485 N.E.2d 717.

{¶ 21} Appellant argues that the evidence presented at trial was merely speculative regarding appellant's role in the use of the victim's information. Specifically, appellant contends that there was no definitive evidence that appellant received the information on her cell phone and relayed the information to her accomplice who then wrote it down on a piece of paper and supplied it to the Best Buy representative. Neither the cell phone nor the paper were confiscated. The state counters that ample circumstantial evidence supports appellant's guilt.

{¶ 22} Complicity by aiding and abetting is shown by evidence demonstrating that a defendant "supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal." State v. Johnson , 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus. Evidence of aiding and abetting may be shown by either direct or circumstantial evidence, and the sharing in criminal intent may be inferred from presence, companionship, and conduct before and after the offense is committed. State v. Lett , 160 Ohio App.3d 46, 2005-Ohio-1308, 825 N.E.2d 1158, ¶ 29 (8th Dist.).

{¶ 23} During trial, the Best Buy employee testified that the male accomplice informed him that they were going to be using his father's card but that the account information would have to be looked up. The employee stated that the male's identification did not match the cardholder's name. Regarding the information the employee was given, he testified:

A: But, [appellant] did, she did-she was constantly on the phone while I was doing lookups and she had something written down-had the male write something down on a piece of paper when I was asking questions. * * *. So, I just had to ask the normal questions of, like, phone number and everything on the account-are you an authorized user, * * * date of birth, and they had to type in the soc, and that's how the account was brought up.
* * *
Q: So while you were asking those questions, Miss Edwards was providing information to Mr. Morton?
A: Correct.

{¶ 24} In addition to the above exchange, reviewing the entirety of the trial transcript we find that the jury did not lose its way or create a miscarriage of justice when it found appellant guilty of complicity on the misuse of a credit card. We further find, however, based on our analysis of appellant's second assignment of error, that the jury did lose its way in convicting appellant of identity fraud. Appellant's third assignment of error is well-taken, in part.

{¶ 25} Appellant's fourth assignment of error argues that her identify fraud and misuse of a credit card convictions were allied and subject to merger at sentencing. Based upon our disposition of appellant's second and third assignments of error, we find that appellant's fourth assignment of error is moot.

{¶ 26} On consideration whereof, appellant's conviction for complicity in the misuse of a credit card is affirmed; appellant's conviction for identify fraud is reversed and vacated as it is unsupported by sufficient evidence. The matter is remanded to modify the judgment in accordance with this decision. Pursuant to App.R. 24, appellee is ordered to pay the costs of this appeal.

Judgment affirmed, in part, and reversed, in part.

Christine E. Mayle, P.J.

James D. Jensen, J.

CONCUR.

      The statute defines "personal identifying information" as, inter alia, the name, address, telephone number, driver's license, driver's license number, social security card and credit card number of a living or dead individual. R.C. 2913.49(A).


author: LARRY A. JONES, SR., J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Rafiq M. JONES, Defendant-Appellant
    No. 106027
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 24, 2018
    Jonathan N. Garver, The Brownhoist Building, 4403 St. Clair Avenue, Cleveland, Ohio 44103, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Melissa Riley, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Jones, J., Kilbane, P.J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} Defendant-appellant Rafiq M. Jones ("Jones") appeals from the trial court's June 2017 judgment denying his motion to vacate his plea. For the reasons that follow, we affirm.

{¶ 2} The record demonstrates that in October 2016, Jones was charged in a six-count indictment with crimes relating to a 1996 rape. Counts 1 and 2 charged rape; Count 3 charged aggravated robbery; Count 4 charged robbery; and Counts 5 and 6 charged kidnapping. All the counts contained one- and three-year firearm specifications. With the exception of Count 3, aggravated robbery, "Jane Doe" was named as the victim; Count 3 did not name a victim.

{¶ 3} In April 2017, on the day the matter was set for trial, Jones pleaded guilty to Count 1, rape, amended to delete the firearm specifications, and Count 3, aggravated robbery, also amended to delete the firearm specifications. The remaining counts and specifications were dismissed.

{¶ 4} That same day, immediately after the plea was taken and before the hearing was adjourned, defense counsel informed the court that Jones had "just mentioned in my ear that there is a concern." The court inquired of Jones as to what the concern was; Jones responded, the "rape charge. I didn't rape her." Defense counsel then made an oral motion to withdraw the plea. The assistant prosecuting attorney suggested that because the request was made prior to sentencing, the court should inquire about Jones's desire to withdraw his plea, and the court agreed and gave Jones an opportunity to explain.

{¶ 5} Jones told the court "I want to apologize to you for wasting your time and everyone's time. I have [had] a change of heart and I don't feel comfortable with that." The court responded, "[y]ou can't withdraw your plea just because you've had a change of heart. * * * You have to give me a legal reason why you are wishing to withdraw your plea."

{¶ 6} After consulting with his attorney, Jones told the court "I guess the legal reason would be * * * some of it I don't understand. A lot of these things I don't understand. A lot of it is not clear to me." The court asked Jones what was not clear to him, and Jones responded that he thought that he was pleading guilty to just one count-he did not know it was two counts. According to Jones, he thought he was pleading guilty to "one count of rape." The court told Jones that both the state and the court had reviewed his rights with him, and that the plea was to two counts. The court noted that Jones did not indicate during the plea colloquy that he had any questions, and he also told the court that he had not been threatened or promised anything for his plea.

{¶ 7} The court asked Jones if he understood what rape and aggravated robbery meant, and he indicated he did. After pressing Jones for his legal reason for wanting to withdraw his plea, Jones said "I don't have a legal reason myself." The trial court denied his oral motion to withdraw his plea.

{¶ 8} A few days later, and prior to sentencing, Jones, by and through his initial lawyer, filed a written motion to withdraw his plea. Jones thereafter retained a new attorney to represent him; new counsel filed a supplemental motion to withdraw the plea and requested an oral hearing. The court denied Jones's request to withdraw without a hearing. Thereafter, Jones, pro se, filed another motion to withdraw his plea.

{¶ 9} At sentencing, the trial court informed Jones, that because he was represented by counsel, it would not be considering his pro se motion to withdraw his plea. Defense counsel asked the court to reconsider its ruling; the request was denied. The court then sentenced Jones to concurrent ten-year terms on both counts. Jones now raises the following four assignments of error for our review:

I. The trial court committed prejudicial error by not conducting a hearing on appellant's pre-sentencing motion to withdraw guilty pleas.
II. The trial court committed prejudicial error by denying appellant's pre-sentencing motion to withdraw guilty pleas.
III. Appellant's guilty pleas must be vacated because they were not made knowingly, intelligently, and voluntarily.
IV. Appellant's conviction and sentence for aggravated robbery, as charged in amended Count III of the indictment, should be vacated and set aside because Count III, in both the original indictment and the amended indictment, is defective and fails to charge an offense under Ohio law because no person was named as the alleged victim.

The Plea and Denial of Motion to Withdraw; Hearing Requirement

{¶ 10} We consider the first three assignments of error, which relate to the plea and the denial of Jones's request to vacate it, together. We first consider the third assignment of error, which relates to the plea itself.

{¶ 11} Crim.R. 11(C)(2) requires that when a defendant pleads guilty, the trial court must personally address the defendant and (1) determine that the defendant is making the plea voluntarily with an understanding of the nature of the charges and the maximum penalty; (2) ensure the defendant understands the effect of the plea and that the court may proceed with judgment after accepting the plea; and (3) inform the defendant and ensure that the defendant understands that he or she is waiving his or her constitutional rights to a jury trial, to confront witnesses against him or her, to call witnesses in his or her favor, and to require the state to prove his or her guilt beyond a reasonable doubt at a trial where the defendant cannot be forced to testify against himself or herself.

{¶ 12} A trial court must strictly comply with the Crim.R. 11(C)(2) requirements regarding the waiver of constitutional rights, which means that the court must actually inform the defendant of the constitutional rights he or she is waiving and make sure the defendant understands them. State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18, 27.

{¶ 13} For nonconstitutional rights, such as the right to be informed of the maximum possible penalty, "substantial compliance" is sufficient. Id. at ¶ 14, citing State v. Stewart , 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). "Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he or she is waiving." State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing Stewart. "[A] defendant must show prejudice before a plea will be vacated for a trial court's error involving Crim.R. 11(C) procedures when nonconstitutional aspects of the colloquy are at issue." Veney at ¶ 17. The test for prejudice is "whether the plea would have otherwise been made." Nero at id.

{¶ 14} Upon review, the trial court strictly complied with advising Jones of the constitutional rights he would be waiving by pleading guilty. Jones does not challenge the plea on that ground; rather, he contends that the trial court "pressured" him into entering his plea.

{¶ 15} As mentioned, the case was scheduled for trial on the day Jones pleaded guilty. The trial court told Jones that "once we begin hearing motions, I will not accept a plea to anything less than the indictment." The trial court explained, "I want to make sure that you understand what you're facing if you accept the plea and what you're facing if you are convicted. Okay. And it's really adding up the pluses and minuses, the pros and cons, the benefit, the cost of potentially being convicted or the benefit of accepting the plea agreement."

{¶ 16} Jones contends that the trial court's comments were similar to the trial court's comments in State v. Heard , 8th Dist. Cuyahoga, 2017-Ohio-8310, 87 N.E.3d 245, that resulted in the defendant's plea being vacated. Upon review, Heard is distinguishable from this case.

{¶ 17} In Heard , an attempted murder case, on the date set for trial, after the matter had three times been continued, the defendant's counsel sought another continuance, telling the court that the defendant "denied responsibility and claimed his innocence to this since the time I met him." Id. at ¶ 4. Defense counsel further told the court that the defendant had just, shortly before they appeared in court, informed him that he (the defendant) had been "covering up for the real shooter"; the defendant informed his counsel who the "real shooter" was. Id. Counsel, therefore, sought a continuance to investigate the person whom his client claimed was really the shooter.

{¶ 18} The trial court denied the request, however, telling the defendant that the "new information appeared to be just a ploy to get another continuance." Id. at ¶ 6. The court then told the defendant that "if we don't plead the case, we're going to trial right now." Id. The trial court noted that although the defendant had not authorized his attorney to seek a plea bargain, it had determined that even if the state made a plea offer, the court would reject it because "I think if you plead out to a case like this, you need to do somewhere between 13 and 15 years in the state penal institution." Id. at ¶ 7.

{¶ 19} The trial court continued, telling the defendant that if he went to trial and was convicted he would get "at least double, perhaps triple or more time, because you're going to be convicted of an additional seven counts," and the court told the defendant the sentences would be imposed consecutively. Heard, 8th Dist. Cuyahaoga, at ¶ 8.

{¶ 20} The trial court then proposed the following plea deal to the defendant:

What I'm suggesting is that you can plead no contest to the indictment and the court will sentence you. My only promise is I won't consecutively sentence you. If you plead no contest to the indictment, I will sentence you on a concurrent period of incarceration, but you're looking at approximately 14 years in the state penal institution, 3 for the gun and 11 years on the underlying offense, and I would run the other time concurrent.
If you take the case to trial and are convicted, you will do multiples of 14 years, because if you're convicted of these charges, that's what you deserve. You deserve to spend what could be the rest of your life in the state penal institution.

Id. at ¶ 9.

{¶ 21} The defendant asked the trial court if he would get over ten years if he pleaded guilty that day, and the court told him he would get 14 years. The defendant told the court that he wanted to go to trial, but his mother, who was in the courtroom, advised her son to "listen to what he said." Id. at ¶ 11. After an off-the record discussion was had, the trial court told the defendant that it did not know what would happen to him if he went to trial, but he shared with the defendant a story about two "knuckleheads" who took their case to trial and were sentenced to 78-year prison terms, even after the trial court told them they could plead guilty and be sentenced to 15 years. Id. The court told the defendant he was presumed innocent and would get a fair trial, but those were "just the facts, that's the reality of the situation." Id.

{¶ 22} The trial court inquired of the defendant as to what it was he wished to do, to which the defendant responded, "I didn't do it." Heard, 8th Dist. Cuyahaoga, at ¶ 13. The trial court then told him he could take the case to trial, noting that he had a "beautiful suit on, you can sit there and maybe the jury will think you're a great guy and you're not guilty." Id. The court told the defendant he should either enter a plea or the court was bringing the jury in, and "[i]f they walk into this room, my deal with you is off." Id. The defendant then agreed to plead guilty.

{¶ 23} This court found there was "no question that the judge's participation in the plea process could have led [the defendant] to believe he could not get a fair trial or fair sentence after trial." Id. at ¶ 19. Of note, was that the plea offer only came from the judge; it was not an offer by the state and the state did not participate in the process. On that record, this court found that the trial judge "more than 'actively participated' in the plea process; he created and presented the offer." Id. at ¶ 20.

{¶ 24} Here, the plea offer came from the state, not the trial court. Further, the record here demonstrates that the trial court presented the possible consequences of pleading guilty versus going to trial and being convicted, but did not persuade or pressure Jones like the trial court did to the defendant in Heard. As the trial court told Jones, "it's really adding up the pluses and minuses, the pros and cons, the benefit, the cost of potentially being convicted or the benefit of accepting the plea agreement." The trial court did not coerce Jones into accepting the plea.

{¶ 25} Moreover, we are not persuaded by Jones's contention that the trial court misled him as to the maximum penalty he could face and, therefore, his plea was not knowingly, intelligently, and voluntarily made. Specifically, the trial court advised Jones that 60 years was the maximum penalty he faced if he went to trial and was convicted of all counts. Jones contends that the advisement was incorrect, however, because some of the counts would have merged at sentencing.

{¶ 26} A trial court is required to hold a hearing to determine whether merger applies before entering convictions on multiple counts. State v. Little , 2d Dist. Greene No. 2008-CA-76, 2009-Ohio-4328, 2009 WL 2602253, ¶ 58.

"When a defendant enters a guilty plea to multiple offenses of similar import and the trial court accepts the plea, the trial court must conduct a hearing before entering a judgment of conviction and make a determination as to whether there were allied offenses of similar import committed with a single animus; whether there were offenses committed separately or with a separate animus as to each offense. If the offenses are found to be allied offenses, a judgment of conviction may be entered for only one offense. If the offenses are found not to be allied offenses, a judgment of conviction may be entered for each offense."

Id. at ¶ 59, quoting State v. Stephens , 8th Dist. Cuyahoga Nos. 62554, 62555, 62556, 1993 WL 204614, *4 (June 10, 1993).

{¶ 27} Thus, when a trial court advises a defendant of the possible maximum sentence at a plea hearing, it is not required to conduct a hearing on the merger issue at that time. Little at ¶ 60 ; see also State v. Rogers , 8th Dist. Cuyahoga Nos. 97093, 97094, 2012-Ohio-2496, 2012 WL 2046790, ¶ 28 (explaining that "merger of offenses is a sentencing issue, not a plea issue."). Consequently, the court's advisement to Jones was not misleading; the trial court advised him of the possible maximum sentence he faced.

{¶ 28} In light of the above, the third assignment of error is overruled.

{¶ 29} In his first and second assignments of error, Jones challenges the trial court's decision to deny his presentence motion to withdraw his plea.

{¶ 30} Under Crim.R. 32.1, a criminal defendant may move to withdraw a guilty or no contest plea before sentence is imposed. Generally, "a presentence motion to withdraw a guilty plea should be freely and liberally granted." State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992) ; see also State v. Zimmerman , 10th Dist. Franklin No. 09AP-866, 2010-Ohio-4087, 2010 WL 3405746, ¶ 11.

{¶ 31} However, a defendant "does not have an absolute right to withdraw a plea prior to sentencing." Xie at id. "[T]he trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea." Id.

{¶ 32} A trial court's decision on a presentence motion to withdraw a plea is subject to review for abuse of discretion. Id. at paragraph two of the syllabus; Zimmerman at ¶ 12. An abuse of discretion occurs where a decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). There are a number of nonexhaustive factors to consider in determining whether a trial court abused its discretion by denying a presentence motion to withdraw, including:

"(1) whether the prosecution would be prejudiced if the plea were vacated; (2) whether the offender was represented by highly competent counsel; (3) the extent of the Crim.R. 11 hearing; (4) whether there was a full hearing on the motion to withdraw the offender's guilty plea; (5) whether the trial court gave full and fair consideration to the motion; (6) whether the motion was made within a reasonable time; (7) whether the motion set forth specific reasons for the withdrawal; (8) whether the accused understood the nature of the charges and possible penalties; and (9) whether the accused was perhaps not guilty or had a complete defense to the crime."

Zimmerman at ¶ 13, quoting State v. Jones , 10th Dist. Franklin No. 09AP-700, 2010-Ohio-903, 2010 WL 866126, ¶ 10, citing State v. Fish , 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995). Consideration of these factors is a balancing test, and no single factor is conclusive. Zimmerman at id. , citing Fish at id.

{¶ 33} Jones contends that the trial court did not afford him a hearing on his motion. We disagree.

{¶ 34} As mentioned, a trial court must conduct a hearing to determine whether there is a "reasonable and legitimate" basis for the guilty plea withdrawal motion. Xie , 62 Ohio St.3d at 527, 584 N.E.2d 715. However, "Ohio courts have previously held that a trial court inviting and hearing oral arguments on a motion to withdraw a guilty plea at the sentencing hearing, immediately before sentence is imposed, can constitute a full and fair hearing on that motion." State v. Griffin , 8th Dist. Cuyahoga No. 82832, 2004-Ohio-1246, 2004 WL 529406, ¶ 18, citing State v. Holloman , 2d Dist. Greene No. 2000CA82, 2001 WL 699533 (June 22, 2001), and State v. Mooty , 2d Dist. Greene No. 2000 CA 72, 2001-Ohio-1464, 2001 WL 991976.

{¶ 35} The trial court here gave Jones an opportunity to explain his reasons for seeking to vacate his plea. Jones's reasons, however, did not constitute a "reasonable and legitimate" basis for withdrawal. Simply, as stated in Jones's own words, he had a "change of heart." "Ohio courts have consistently held that a change of heart is deemed insufficient to justify withdrawing a guilty plea * * *." State v. Glass , 10th Dist. Franklin No. 04AP-967, 2006-Ohio-229, 2006 WL 164419, ¶ 37. Courts have concluded as such even under the liberal standards that govern a presentence plea withdrawal motion. See State v. Griffin , 8th Dist. Cuyahoga No. 82832, 2004-Ohio-1246, 2004 WL 529406, ¶ 15-16 ; State v. Forest , 2d Dist. Montgomery No. 19649, 2003-Ohio-1945, 2003 WL 1894588, ¶ 19-20.

{¶ 36} Further, Jones's contention that he thought he would be pleading to "just one count"-rape-is belied by the record. The record demonstrates that the trial court went over both counts with Jones and asked him how he wished to plead as to each count. The court gave him the opportunity to ask questions if he did not understand; Jones indicated that he understood, however.

{¶ 37} Thus, in light of the above, the trial court sufficiently inquired as to Jones's reasons for his motion to withdraw his plea, and the court did not abuse its discretion in denying the motion. The first and second assignments of error are therefore overruled.

No Named Victim in Aggravated Robbery Count

{¶ 38} For his fourth assignment of error, Jones contends that his aggravated robbery conviction is defective because it does not contain a named victim and, therefore, fails to charge an offense. We disagree.

{¶ 39} We first note that Jones failed to raise this issue at the trial court level and, therefore, has waived all but plain error review. See Crim.R. 52(B). Plain error should only be recognized with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶ 40} The purpose of an indictment is to inform the accused of the offense with which he or she is charged so that he or she may prepare for trial. State v. Morris , 8 Ohio App.3d 12, 16, 455 N.E.2d 1352 (8th Dist.1982). No trial, conviction, or punishment can occur unless sufficient and fair notice of the charges against him or her is provided to the accused. Stewart v. State , 41 Ohio App. 351, 353-354, 181 N.E. 111 (4th Dist.1932). Under the modern statutes and rules, an indictment is sufficient if it mirrors the language of the statute defining the charged offense. See Crim.R. 7(B). Count 3 of the indictment in this case mirrors R.C. 2911.01(A)(1), governing aggravated robbery.

{¶ 41} Further, "Ohio law does not require that a victim be named in an indictment when the identity of the victim is not an essential element of the crime." State v. Cicerchi , 182 Ohio App.3d 753, 2009-Ohio-2249, 915 N.E.2d 350, ¶ 35, fn. 7 (8th Dist.). The victim's name is not an essential element of aggravated robbery under R.C. 2911.01(A)(1). See State v. Anthony , 11th Dist. Lake No. 93-L-096, 1994 WL 587882, *3 (Sept. 30, 1994).

{¶ 42} In light of the above, the fourth assignment of error is overruled.

{¶ 43} Judgment affirmed.

MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR

      We note that Jones's second attorney did not advance any different arguments as to why Jones should be allowed to withdraw his plea than had already been advanced. Further, because Jones was represented by counsel, the trial court properly disregarded his pro se motion. See State v. Washington , 8th Dist. Cuyahoga Nos. 96565 and 96568, 2012-Ohio-1531, 2012 WL 1142566, ¶ 11 (when a criminal defendant is represented by counsel, a trial court may not entertain a pro se motion filed by the defendant).


text:
    The CITY OF CHICAGO, Plaintiff-Appellee, v. John SOLUDCZYK; Mortgage Electronic Registration Systems, Inc., as Nominee for Freedom Mortgage Corporation; Freedom Mortgage Corporation; Federal National Mortgage Association; JPMorgan Chase Bank, N.A.; Unknown Owners; and Nonrecord Claimants, Defendants
    (Federal National Mortgage Association, Defendant-Appellant).
    No. 1-16-2449
    Appellate Court of Illinois, First District, SECOND DIVISION.
    September 26, 2017 Rehearing denied November 16, 2017
    Anselmo Lindberg Oliver, LLC, of Naperville (Robert J. Deisinger, of counsel), for appellant.
    Edward N. Siskel, Corporation Counsel, of Chicago, for appellee.
   JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 The City of Chicago (City) seeks to enforce an in personam money judgment against Federal National Mortgage Association (Fannie Mae) representing the amount the City expended to demolish certain property. Fannie Mae owned the property briefly after it purchased it at a foreclosure sale. At the time the City demolished the property and perfected its demolition lien, Fannie Mae, having sold the property more than two years earlier, was not the owner. We find that the procedure by which the City obtained its judgment did not comport with the statute authorizing a municipality to seek a money judgment for demolition costs, and therefore, we reverse.

¶ 2 The City filed this case in the circuit court of Cook County on January 17, 2012, asserting various claims arising out of alleged dangerous and unsafe conditions at property located at 535 W. 60th Street in Chicago. The complaint alleged a variety of dangerous conditions at the property, including (i) "stripped and inoperable" electrical and plumbing systems, (ii) lack of electric service to the building, (iii) smoke, water, and fire damage and (iv) structural damage to the joists, rafters, and roof.

¶ 3 Named as defendants were the property's owner of record, John Soludczyk, and various lienholders, including JPMorgan Chase Bank, N.A. (JPMorgan Chase), which was the plaintiff in a pending mortgage foreclosure against the property. According to public records, Soludczyk acquired the property by quitclaim deed on March 31, 2005, and JPMorgan Chase was the assignee of Mortgage Electronic Registration Systems, Inc. (MERS), the original lender that recorded its lien on the property the same date Soludczyk took title.

¶ 4 At issue on appeal are two counts of the complaint: count I, which sought to require the defendants to demolish the property or, alternatively, allow the City to demolish the property under article 11, division 31 of the Illinois Municipal Code ( 65 ILCS 5/11-31-1(a) (West 2010)), sometimes known as the unsafe property statute, and count IV, which sought a declaration that the property was a public nuisance and injunctive relief against defendants to abate the nuisance pursuant to the City's public nuisance ordinance (Chicago Municipal Code § 7-28-060 (amend. Aug. 30, 2000)). In the prayer for relief under count I, the City requested an order assessing the costs of the demolition "as a judgment against the defendants" and "[p]ermitting foreclosure of any City of Chicago liens entered against the subject property in this proceeding." Count IV did not separately request any relief other than abatement of the nuisance.

¶ 5 In the foreclosure proceedings, JPMorgan Chase obtained a judgment of foreclosure and purchased the property at the foreclosure sale, which was confirmed by order entered on June 13, 2012. We gather from the foreclosure documents in the record that the mortgage was insured by Fannie Mae and that, following the sale, Fannie Mae became the certificate holder and acquired the property. The City then named Fannie Mae as a defendant in this case. After Fannie Mae was added as a defendant, the City, without explanation, dismissed the case against Soludzcyk and JPMorgan Chase.

¶ 6 Although Fannie Mae filed an appearance through counsel, it does not appear that it actively participated in the demolition case, and the only orders entered against Fannie Mae during the proceedings required it to "secure and keep secure the entire subject property by maintaining the property as secure and vacant." In particular, the record contains no demand by the City that Fannie Mae remedy the dangerous and unsafe conditions at the property. On appeal, the City contends that an order of default was entered against Fannie Mae, but no such order appears in the record.

¶ 7 Fannie Mae owned the property for 10 months-from June 13, 2012, until April 11, 2013-when it sold the property to Rachel Branton. The City did not thereafter name Branton as a defendant.

¶ 8 On April 9, 2013, two days before the sale to Branton, an order of demolition was entered in favor of the City and against Fannie Mae, the only remaining defendant, on counts I and IV of the complaint. The City dismissed the other counts of the complaint. MERS, which had also been named as a defendant in the original complaint, was dismissed by the City on the same date the demolition order was entered.

¶ 9 The demolition order found that the conditions at the property were beyond repair and that a judgment in favor of the City on counts I and IV seeking demolition authority was warranted. The order provided that the City's authority to demolish the property "shall become effective May 9, 2013." The order also stipulated that the City's demolition of the property would "result in a statutory in rem lien that attaches only to the subject parcel of real estate." The order further provided that "[i]f the City seeks a personal judgment against any individual party to this action, it will proceed by separate motion directed to that party." The court made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) that there was no just reason to delay enforcement or appeal of the order and retained jurisdiction "for the purpose of ascertaining demolition costs for entry of a money judgment against the defendant owners, as defined by the applicable statutes and ordinances." No party appealed the demolition order.

¶ 10 The City did not demolish the property until September 17, 2015, nearly 21/2 years after entry of the demolition order and Fannie Mae's sale to Branton. The City's lien for the demolition costs was recorded against the property on February 24, 2016.

¶ 11 On March 29, 2016, the City filed a "Motion to Ascertain Demolition and Other Costs." Notice of the motion was sent only to Fannie Mae. The motion represented that the City had incurred demolition and litigation costs totaling $27,042 and requested a personal money judgment against Fannie Mae in the same amount. No authority for entering the judgment against Fannie Mae was cited in the City's motion, and no support for the amount sought was attached to the motion.

¶ 12 Fannie Mae responded to the City's motion, objecting to the entry of judgment because (i) the requested relief was unjust given that Fannie Mae was not the owner of the property when it fell into disrepair, when the City demolished it, or when the City's lien became effective by recordation, (ii) the City's attempt to impose personal liability on Fannie Mae was not authorized under the Illinois Municipal Code, and (iii) even if the Illinois Municipal Code applied, the City had not followed the required procedure to obtain a money judgment, which necessitated either foreclosure of the City's demolition lien or the filing of a separate action under the Code of Civil Procedure seeking a money judgment.

¶ 13 In support of its motion, the City pointed to the retention of jurisdiction in the demolition order and argued that the Illinois Municipal Code authorized a money judgment against the "owner or owners" of demolished property. 65 ILCS 5/11-31-1 (West 2010). As Fannie Mae was an owner of the property when the demolition order was entered, the City argued it could impose personal liability on Fannie Mae for demolition costs even if Fannie Mae did not currently own the property. The City further argued that it could obtain a money judgment against Fannie Mae via a motion in the demolition case and that it was not required to foreclose its demolition lien or pursue a separate civil action.

¶ 14 The trial court agreed with the City. On June 13, 2016, the court entered an order finding that "because the [d]emolition order was entered while Fannie Mae was the owner of the property and because the statute does not provide for relief from liability upon transfer of the property, Fannie Mae is liable for [d]emolition costs." The court entered a personal money judgment against Fannie Mae in the amount of $27,042. Although Fannie Mae was at that point the only party-defendant in the case, the court also granted the City leave to file a petition to foreclose its demolition lien, either as part of the demolition case or as a separate proceeding and retained jurisdiction "solely for the purpose of adjudicating the foreclosure." The trial court made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) that there was no just reason for delaying enforcement or appeal of its order. Fannie Mae filed a timely notice of appeal.

¶ 15 We first address the basis for our jurisdiction. Fannie Mae posits that we have jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) on appeal from a final judgment in the demolition case. Alternatively, Fannie Mae contends the trial court's finding pursuant to Rule 304(a) ( Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)) confers appellate jurisdiction. The City relies exclusively on jurisdiction under Rule 304(a), which, in cases involving multiple parties or claims for relief, allows an appeal from a final judgment "as to one or more but fewer than all of the parties or claims," provided the court makes a finding that "there is no just reason for delaying either enforcement or appeal or both." Id.

¶ 16 At the time the trial court entered its June 13, 2016, judgment against Fannie Mae, there were no other defendants in the case and no other claims pending. Although the City argues in its brief that there were other claims asserted and other parties to the case, this overlooks that those parties and claims were voluntarily dismissed in 2012, before entry of the demolition order and long before the property was demolished. There is no indication in the record that the City ever revived any other claims or joined any other parties after they were dismissed. The court's order finally resolved, as the City concedes, its only remaining claim against Fannie Mae.

¶ 17 The fact that the court retained jurisdiction, for some unspecified period of time, over a claim the City had not yet asserted against persons or entities not then parties to the case cannot transform the court's final judgment into something else. If the City later sought to reopen the case to pursue further proceedings against other parties, the court's retention of jurisdiction would potentially apply, but that does not mean that the court's order was anything other than a final judgment.

¶ 18 Therefore, we have jurisdiction over Fannie Mae's appeal of a final judgment pursuant to Rule 301. We discourage the inclusion of Rule 304(a) findings as a matter of course when the order entered finally resolves the litigation in its entirety.

¶ 19 In this case of first impression, we must construe the Illinois Municipal Code to determine whether it authorizes a municipality to impose personal liability for demolition costs simply by filing a motion in the demolition case or whether those the municipality seeks to hold personally liable for those costs are entitled to greater procedural protections. We review this question of law de novo. Nelson v. Artley , 2015 IL 118058, ¶ 13, 396 Ill.Dec. 374, 40 N.E.3d 27.

¶ 20 As in any case involving statutory construction, we start with the language of the statute to determine the legislature's intent. "Our primary objective is to ascertain and give effect to legislative intent, the surest and most reliable indicator of which is the statutory language itself, given its plain and ordinary meaning." Board of Education of Springfield School District No. 186 v. Attorney General , 2017 IL 120343, ¶ 24, 413 Ill.Dec. 20, 77 N.E.3d 625. In the absence of an ambiguity in the statute's language, we must apply it as written without resort to extrinsic aids to statutory construction. Id. (citing People v. Collins , 214 Ill. 2d 206, 214, 291 Ill.Dec. 686, 824 N.E.2d 262 (2005) ).

¶ 21 Although the parties discuss only those subsections of section 11-31-1 of the Illinois Municipal Code directly at issue here, a discussion of the section's overall structure is helpful to place those provisions in context. See Majmudar v. House of Spices (India), Inc. , 2013 IL App (1st) 130292, ¶ 10, 377 Ill.Dec. 320, 1 N.E.3d 1207 (court should not consider words and phrases in isolation but instead should interpret each word and phrase in light of the statute as a whole).

¶ 22 Various subsections of section 11-31-1 of the Illinois Municipal Code specify procedures municipalities and others may pursue to remedy unsafe and hazardous buildings within a municipality's borders. Under subsection (a), the section invoked by the City in the trial court, a municipality may apply to demolish or take other action to address dangerous and unsafe buildings. 65 ILCS 5/11-31-1(a) (West 2010). To accomplish this, the municipality must apply to the circuit court "for an order authorizing action to be taken with respect to a building if the owner or owners of the building, including the lien holders of record, after at least 15 days' written notice by mail so to do, have failed to put the building in a safe condition or to demolish it." Id. The hearing on the application "shall be expedited by the court and shall be given precedence over all other suits." Id. Under subsection (b), a landowner or tenant of property within 1200 feet of any dangerous or unsafe building may petition the municipality to institute an action under subsection (a), and failing action by the municipality, the affected party may file an action seeking demolition, repair, or other relief. 65 ILCS 5/11-31-1(b) (West 2010). If the owner fails to take the action ordered by the court, the petitioner may ask the court to join the municipality as a party and the municipality may be ordered to take the action required to remedy the unsafe or hazardous conditions. Subsections (d), (e), and (f) address, respectively, (i) a municipality's ability to have property declared abandoned so that the municipality may obtain title ( 65 ILCS 5/11-31-1(d) (West 2010)), (ii) an expedited procedure for removing unsafe and hazardous buildings of less than three stories, potentially without the necessity of court proceedings ( 65 ILCS 5/11-31-1(e) (West 2010)), and (iii) a procedure for remediating environmental hazards at abandoned property ( 65 ILCS 5/11-31-1(f) (West 2010)).

¶ 23 Certain subsections of section 11-31-1 of the Illinois Municipal Code also contain enforcement mechanisms. In particular, subsections (a), (b), and (f) provide for a lien to be recorded against the property in the amount of the demolition, repair, remediation, or other cost, which, unless enforced under subsection (c), may be foreclosed in separate proceedings under the Illinois Mortgage Foreclosure Law relating to mortgages or mechanic's liens ( 735 ILCS 5/15-1501 et seq. (West 2010)). 65 ILCS 5/11-31-1(a), (b), (f) (West 2012). Subsection (c), in turn, allows for a municipality to enforce its lien by petitioning the court presiding over the building case to retain jurisdiction to conduct proceedings to foreclose the lien. 65 ILCS 5/11-31-1(c) (West 2010). An action to foreclose the lien may be commenced "at any time after the date of filing of the notice of lien" with the recorder of deeds. 65 ILCS 5/11-31-1(a), (b), (f) (West 2012). However enforced, a lien recorded within six months of the demolition or repair of the building is "superior to all prior existing liens and encumbrances, except taxes." Id. The costs of any foreclosure proceedings, whether brought separately or as part of the building case, and any other costs related to enforcement of subsections (a), (b), or (f) "are a lien on the real estate and are recoverable by the municipality from the owner or owners of the real estate." 65 ILCS 5/11-31-1(a) - (c), (f) (West 2012).

¶ 24 Finally, there are enforcement provisions unique to subsection (a). Subsection (a) itself provides that a municipality may proceed against former owners of the property to recover the cost of demolition if those owners transferred the property within the 15-day period following notice from the municipality of the property's unsafe or hazardous conditions. 65 ILCS 5/11-31-1(a) (West 2010) (cost of demolition or repair incurred by municipality or third parties "recoverable from the owner or owners of the real estate or the previous owner or both if the property was transferred during the 15 day notice period"). Separately, under subsection (g) of section 11-31-1 of the Illinois Municipal Code, when a municipality has obtained a lien under subsection (a), it may also bring an action for a money judgment

"against the owner or owners of the real estate in the amount of the lien in the same manner as provided for bringing causes of action in Article II of the Code of Civil Procedure [ ( 735 ILCS 5/2-101 et seq. (West 2016)) ] and, upon obtaining a judgment, file a judgment lien against all of the real estate of the owner or owners and enforce that lien as provided in Article XII of the Code of Civil Procedure [ ( 735 ILCS 5/12-101 et seq. (West 2016)) ]." 65 ILCS 5/11-31-1(g) (West 2010).

¶ 25 The Illinois Municipal Code does not anywhere provide for the filing of a motion by the municipality to obtain a money judgment against the "owner or owners" in the amount of demolition costs. Rather, the Illinois Municipal Code's plain language requires the municipality, at its election, to pursue either foreclosure of its demolition lien or a separate civil action against those owners whom it seeks to hold personally liable.

¶ 26 The Illinois Municipal Code provides a quick and efficient means for a municipality to remove structures that pose a threat to public health and safety. Village of Lake Villa v. Stokovich , 211 Ill. 2d 106, 130, 284 Ill.Dec. 360, 810 N.E.2d 13 (2004) ; City of Bloomington v. Bible Truth Crusade , 197 Ill. App. 3d 793, 796, 144 Ill.Dec. 220, 555 N.E.2d 117 (1990) ("[The Illinois Municipal Code's] purpose is to provide municipalities the power to abate public nuisances which may prove detrimental to public health, safety, and welfare. [Citations.] It is also intended that this procedure be an expeditious one."). To that end, when a municipality applies to demolish a building under subsection (a) of section 11-31-1, the court is required to make only two findings: (i) the building is dangerous and unsafe and (ii) the building is beyond reasonable repair. Village of Lake Villa , 211 Ill. 2d at 130-31, 284 Ill.Dec. 360, 810 N.E.2d 13 (citing City of Aurora v. Meyer , 38 Ill. 2d 131, 133, 230 N.E.2d 200 (1967) ). Issues raised by an owner that require consideration of matters beyond the two required findings have been found more properly relegated to resolution elsewhere. See City of Bloomington , 197 Ill. App. 3d at 796, 144 Ill.Dec. 220, 555 N.E.2d 117 (landowner's claim of municipality's misconduct in withholding funds it agreed to provide for demolition had no bearing on relevant issues in demolition proceeding and were more properly raised in other pending litigation); City of Peru v. Bernardi , 84 Ill. App. 3d 235, 239, 39 Ill.Dec. 709, 405 N.E.2d 462 (1980) (landowners' claims that City's demolition costs were excessive reserved for resolution in foreclosure proceedings; "The property interests of the [landowners] will be protected at a later date when the city must justify the reasonableness of its costs and expenses.").

¶ 27 Also, when the legislature intended to subject prior owners of real property to automatic liability under the Illinois Municipal Code, it so provided. As noted, section 11-31-1(a) specifically provides for recovery of demolition costs against current or prior owners of real estate, "or both," if the property is transferred during the 15-day period after notice from the municipality of the property's unsafe or hazardous conditions. 65 ILCS 5/11-31-1(a) (West 2010). Because the legislature articulated a particular condition that would automatically subject a prior owner to liability for demolition costs, we hesitate to assume, as the City does, that anyone who ever owned the property, no matter how briefly, is liable for demolition costs under any circumstances. See People v. Edwards , 2012 IL 111711, ¶ 27, 360 Ill.Dec. 784, 969 N.E.2d 829 ("Where language is included in one section of a statute but omitted in another section of the same statute, we presume the legislature acted intentionally and purposely in the inclusion or exclusion." (citing Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago , 2012 IL 112566, ¶ 24, 357 Ill.Dec. 520, 963 N.E.2d 918 )).

¶ 28 Despite the Illinois Municipal Code's straightforward language, the City argues that the filing of a motion for entry of a money judgment against Fannie Mae was appropriate and that it was not required to do anything other than that in order to hold Fannie Mae liable for the costs it incurred in demolishing the building. In other words, the City contends that by filing a motion that entails (i) no showing of a legally or factually viable claim against Fannie Mae, (ii) no burden of proof, and (iii) no evaluation of the sufficiency of the evidence, it may seek to impose personal liability for demolition and other costs on anyone who ever owned the property. The City further views the Illinois Municipal Code's language that a municipality "may" enforce its lien in several ways as permissive and argues that pursuit of a separate action to foreclose and enforce the demolition lien is not required. We disagree.

¶ 29 As a threshold matter, if the City is correct, the Illinois Municipal Code's provisions for alternative means of enforcing the demolition lien would be surplusage. This interpretation of the Illinois Municipal Code would violate a fundamental precept of statutory construction. "Each word, clause and sentence of a statute must be given reasonable meaning, if possible, and should not be rendered superfluous." Standard Mutual Insurance Co. v. Lay , 2013 IL 114617, ¶ 26, 371 Ill.Dec. 1, 989 N.E.2d 591 ; Majmudar , 2013 IL App (1st) 130292, ¶ 10, 377 Ill.Dec. 320, 1 N.E.3d 1207. The City also does not explain why a municipality would ever resort to foreclosure proceedings or a separate action to enforce a demolition lien and obtain a money judgment if the same result could be accomplished merely through the filing of a motion following recordation of the lien.

¶ 30 But beyond the applicable principles of statutory construction that compel the result we reach, the City's position must be rejected because it violates fundamental principles of due process.

¶ 31 The reason for the Illinois Municipal Code's various provisions regarding the post-demolition or repair enforcement of a municipality's lien is obvious: an action seeking the demolition or repair of an unsafe and hazardous building is an expedited, in rem proceeding directed only against the property. Village of Lake Villa , 211 Ill. 2d at 130, 284 Ill.Dec. 360, 810 N.E.2d 13. The public policy favoring the ability of municipalities to expeditiously demolish or repair structures that pose hazards to public health and safety supports the abbreviated procedure and limited burden of proof required to achieve that result.

¶ 32 Such proceedings are not designed to resolve issues concerning which owner or owners of the property are responsible for the property's unsafe and hazardous condition and should therefore be liable for the demolition or repair costs. A municipality may be content, as Fannie Mae points out, to rely on its recorded lien as a cloud on title that must be paid before the property may be sold. If that is the case, the municipality need do nothing other than perfect its lien. But if a municipality seeks to affirmatively recover the amount of the lien, the Illinois Municipal Code contemplates that the municipality will either (i) foreclose the lien, which is superior to all other prior encumbrances on the property, and obtain satisfaction of the lien through a judicial sale of the property or (ii) sue the owner or owners in a separate civil action, in which case, any money judgment obtained will be enforceable as any other civil money judgment.

¶ 33 The City's interpretation of the Illinois Municipal Code-allowing it to simply file a motion in order to impose personal liability-would impair the due process rights of those it seeks to hold personally liable for demolition costs. This is best illustrated by Fannie Mae's position in this case. Fannie Mae acquired the property through a foreclosure sale, long after the property's unsafe and hazardous conditions prompted the City's action. There is no evidence in the record that Fannie Mae exacerbated the property's condition during the 10 months it owned the property, and the only action Fannie Mae was ordered to take was to maintain the property as secure and vacant. The City makes much of the fact that Fannie Mae did not answer the demolition complaint and argues that the complaint's allegations were, therefore, deemed admitted. But the City overlooks that there were no allegations in the complaint directed to Fannie Mae and, consequently, nothing for Fannie Mae to answer. Fannie Mae was under no constraints to retain ownership of the property, and the record does not disclose any relationship between the demolition order and the sale to Branton. In particular, the record contains no advance notice directed to Fannie Mae or anyone else of the April 9, 2013, order of demolition. Thus, there is no basis to conclude that Fannie Mae rushed to complete the sale to Branton in an attempt to avoid liability for demolition costs. There is also no indication that, at the time of the sale to Branton, Fannie Mae was aware that, years later, the City would seek payment of demolition costs (not yet incurred) only from Fannie Mae and not from previous owners whose conduct caused the property's condition. Yet, with no opportunity to contest the legal and factual basis for or amount of its liability for demolition costs through motion practice, discovery, or an evidentiary hearing, Fannie Mae was adjudged solely responsible for those costs. See City of Peru , 84 Ill. App. 3d at 239, 39 Ill.Dec. 709, 405 N.E.2d 462 (recognizing that property owner's interests would be protected by opportunity to contest reasonableness of demolition costs in later foreclosure proceeding). We cannot countenance the result advocated by the City as it is antithetical to the notice and opportunity to be heard that are the hallmarks of due process. Passalino v. City of Zion , 237 Ill. 2d 118, 124, 340 Ill.Dec. 567, 928 N.E.2d 814 (2009) ; see also People v. Al Momani , 2016 IL App (4th) 150192, ¶ 10, 404 Ill.Dec. 251, 55 N.E.3d 725 ("The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." (Internal quotation marks removed.) (quoting Mathews v. Eldridge , 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) )).

¶ 34 The City relies on State Oil Co. v. Illinois , 352 Ill. App. 3d 813, 287 Ill.Dec. 878, 816 N.E.2d 845 (2004), to argue that a construction of the Illinois Municipal Code that would allow an owner of property to escape liability for demolition costs by selling the property would frustrate the Illinois Municipal Code's purposes. State Oil involved liability for remediation of environmental contamination as a result of leaks from underground storage tanks at a former gas station. Section 57.12 of the Environmental Protection Act ( 415 ILCS 5/57.12(f)(1) (West 1996)) provided that "[t]he owner or operator, or both, of an underground storage tank may be liable" for all costs incurred by the State to remediate environmental conditions stemming from the tank. State Oil, the entity that operated the gas station when the leaks began, argued its status as a former owner absolved it of liability for the ongoing contamination. 352 Ill. App. 3d at 818-19, 287 Ill.Dec. 878, 816 N.E.2d 845. Rejecting this contention, the court found, "[a]llowing an owner to escape liability by simply selling a property would * * * be absurd, and we cannot attribute such an intent to the legislature." Id. at 819, 287 Ill.Dec. 878, 816 N.E.2d 845. And the circuit court appears to have adopted that reasoning when it noted that the Illinois Municipal Code "does not provide for relief from liability upon transfer of the property."

¶ 35 In fact, State Oil illustrates why the City's position is incorrect. In State Oil , the State sued both the former owners and operator of the gas station as well as the current owners and operator. The current owners pursued a cross-claim against the former owners alleging that the former owners falsely represented at the time the property was purchased that the tanks were not leaking and that the current owners did nothing to contribute to the leaks. Thus, in the context of the State's effort to hold them liable, the current owners had the opportunity to litigate their claims against those they contended were responsible for the contamination. The procedure advocated by the City affords Fannie Mae no similar opportunity.

¶ 36 And any argument that the City believed that liability for demolition costs is joint and several is belied by its conduct in dismissing those parties who were likely responsible for the property's condition in the first place (Soludczyk, MERS, and JPMorgan Chase) and in failing to join the party who allowed the property to remain in its unsafe and hazardous condition for 21/2 years following the demolition order (Branton).

¶ 37 The City argues that it was "free to limit its litigation costs" by selecting Fannie Mae as the party to pay the demolition costs, to the exclusion of other owners of the property. This argument makes no sense. If, as the City contends, it was required only to file a motion in order to hold any owner liable for demolition costs, it would have incurred no additional cost to allow Soludczyk, MERS, and JPMorgan Chase to remain as parties, add Branton after her acquisition of the property, and include all parties in its notice of motion seeking payment of the demolition costs.

¶ 38 The City raises a new argument on appeal in favor of the judgment against Fannie Mae, citing provisions of the Chicago Municipal Code (Chicago Municipal Code, §§ 1312-130 (amend. Oct. 2, 1991), 13-12-145 (amend. Jan. 21, 2015)), which it contends authorize the entry of a money judgment without the additional requirement of either foreclosure of the demolition lien or pursuit of a separate civil action. Apart from the fact that these provisions were never cited by the City in the trial court, Fannie Mae correctly notes that these sections (which simply mirror the Illinois Municipal Code's language regarding the City's ability to recover the cost of the demolition from "the owner or owners") contain no enforcement provisions and, therefore, in order to enforce its lien for demolition costs, the City would have to invoke the provisions of the Illinois Municipal Code. As we have concluded that nothing in the Illinois Municipal Code authorizes a municipality to satisfy its lien for demolition or repair costs without either foreclosing the lien or pursuing a separate civil action, the City's new argument fails as well.

¶ 39 Fannie Mae also asks that we determine whether a municipality may impose personal liability for demolition costs on individuals or entities that did not cause the unsafe or hazardous building conditions and who owned the property at some time prior to demolition, but who do not own the property either when it is demolished or when the City perfects its demolition lien. We decline to resolve this issue as it is unnecessary to the resolution of this appeal. If the City elects to pursue foreclosure or a separate civil action against Fannie Mae, Fannie Mae is entitled to contest both the legal and factual basis for the City's claim against it on any grounds available.

¶ 40 Because the circuit court's judgment against Fannie Mae was based on a misapplication of the Illinois Municipal Code's enforcement procedures and because the Illinois Municipal Code does not authorize a municipality to obtain a money judgment by filing a motion in the in rem demolition case, we reverse the judgment of the circuit court of Cook County.

¶ 41 Reversed.

Presiding Justice Neville and Justice Hyman concurred in the judgment and opinion.

      See Cook County Recorder of Deeds, http://cookrecorder.com (last visited September 18, 2017) (enter "20-16-311-023-0000" in PIN-Address Quick Search bar, then follow "Show" hyperlink). We may take judicial notice of information posted on the Recorder of Deeds website. See Ill. R. Evid. 201(b) (eff. Jan. 1, 2011) (court may take judicial notice of facts "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"); JP Morgan Chase Bank, N.A. v. Bank of America, N.A. , 2015 IL App (1st) 140428, ¶ 44 n.4, 397 Ill.Dec. 905, 43 N.E.3d 546.

      Disavowing any attempt at a double recovery, the City represents that since entry of the June 13, 2016, order, it has not commenced proceedings to foreclose its lien.

      The record does not reveal the circumstances of Fannie Mae's acquisition of the property. Given that the mortgage documents were on standard forms approved by Fannie Mae, it is reasonable to assume that at least a portion of the original loan to Soludczyk was insured by Fannie Mae and that once Fannie Mae paid out after default, it accepted an assignment of the certificate of sale from JPMorgan Chase.