[Cite as Eighmey v. Cleveland, 2020-Ohio-1500.]


                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

ALLYSON EIGHMEY, ET AL.,                          :

                Plaintiff-Appellant,              :
                                                           No. 108540
                v.                                :

CITY OF CLEVELAND,                                :

                Defendant-Appellee.               :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: REVERSED AND REMANDED
                RELEASED AND JOURNALIZED: April 16, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-14-822702


                                           Appearances:

                Dworken & Bernstein Co., L.P.A., Frank A. Bartela, and
                Patrick J. Perotti, for appellant.

                Barbara A. Langhenry, Cleveland Director of Law, and
                Gary S. Singletary, Chief Counsel, and Craig J. Morice,
                Assistant Director of Law, for appellee.


FRANK D. CELEBREZZE, JR., J.:

               Plaintiff-appellant, Allyson Eighmey (“Eighmey”), brings the instant

appeal challenging the trial court’s decision granting defendant-appellee, the city of

Cleveland’s (“Cleveland”) motion for summary judgment. After a thorough review
of the record and law, this court reverses the trial court’s judgment and remands the

matter for further proceedings consistent with this opinion.

                        I. Factual and Procedural History

             On February 28, 2014, Eighmey, as the class representative, brought a

class action suit in the trial court alleging that Cleveland was unjustly enriched by

the collection of fines resulting from the issuance of traffic citations. The traffic

citations issued were generated by unmarked automated traffic cameras, which

failed to comply with Cleveland Codified Ordinances (“C.C.O.”) 413.031.

             C.C.O. 413.031 authorizes the use of automated traffic cameras in

Cleveland to photograph red-light and speeding violations. The automated camera

system generates a ticket that is reviewed by a Cleveland police officer and then sent

by first-class mail or personal service to the vehicle’s owner. C.C.O. 413.031(h). The

recipient of a notice of liability must either pay the fine within 20 days from the date

of the ticket’s mailing, C.C.O. 413.031(o), or file a notice of appeal and request

an administrative hearing within 21 days from the date listed on the ticket,

C.C.O. 413.031(k). C.C.O. 413.031(k) provides that “[t]he failure to give notice of

appeal or pay the civil penalty within this time period shall constitute a waiver of the

right to contest the ticket and shall be considered an admission.” Id. Cleveland

assesses late penalties if the fine is not paid within 20 days. C.C.O. 413.031(o).

             C.C.O. 413.031(g), governing the locations of automated cameras,

provides, in relevant part,
       [a]t each site of a red light or fixed speed camera, the Director of Public
       Works shall cause signs to be posted to apprise ordinarily observant
       motorists that they are approaching an area where an automated
       camera is monitoring for red light or speed violators.

Id.   Although C.C.O. 413.031(g) permitted traffic cameras to be mounted on

“[m]obile speed units,” the ordinance required the mobile speed units to be “plainly

marked vehicles.” C.C.O. 413.031(g).

             Between September and December 2013, the mobile speed units were

mounted on unmarked trailers.         Prior to the use of these unmarked trailers,

Cleveland mounted these mobile speed units on marked police cars.

             On October 3, 2013, an unmarked mobile speed unit recorded a

traffic violation committed by Eighmey at the intersection of Detroit Avenue and

West 32nd Street in Cleveland. Eighmey later received the notice of violation in the

mail and promptly paid her ticket on October 27, 2013.

             Four months later, in February 2014, Eighmey filed a class action

complaint against Cleveland, alleging that the mobile unit that recorded her traffic

violation failed to comply with the notice requirements of C.C.O. 413.031(g) because

the unit contained “no distinguishable markings whatsoever.”

             Eighmey’s traffic ticket specified the manner in which it could be

appealed, as required under C.C.O. 413.031(h)(3). C.C.O. 413.031(k), governing the

appeals procedure, provides, in relevant part:

       A notice of appeal shall be filed with the Hearing Officer within twenty-
       one (21) days from the date listed on the ticket. The failure to give
       notice of appeal or pay the civil penalty within this time period shall
      constitute a waiver of the right to contest the ticket and shall be
      considered an admission.

      Appeals shall be heard by the Parking Violations Bureau through an
      administrative process established by the Clerk of the Cleveland
      Municipal Court. At hearings, the strict rules of evidence applicable to
      courts of law shall not apply. The contents of the ticket shall constitute
      a prima facie evidence of the facts it contains. Liability may be found
      by the hearing examiner based upon a preponderance of the evidence.
      If a finding of liability is appealed, the record of the case shall include
      the order of the Parking Violations Bureau, the ticket, other evidence
      submitted by the respondent or the City of Cleveland, and a transcript
      or record of the hearing, in a written or electronic form acceptable to
      the court to which the case is appealed.

             In her complaint, Eighmey alleged that challenging the citation would

have been “futile because the City’s own failure to comply with the ordinance is not

one of the enumerated defenses to a [citation] under C.C.O. 413.031.” Eighmey also

asserted that the class of plaintiffs wrongfully cited by unmarked mobile units was

“so numerous that joinder of all members is impracticable.”

              On July 1, 2016, both Cleveland and Eighmey filed motions for

summary judgment. In addition, Eighmey filed a motion in support of class

certification. Cleveland opposed the motion, arguing, in part, that Eighmey lacked

standing to represent the class because she failed to exhaust her administrative

remedies by appealing the citation pursuant to C.C.O. 413.031(k). Cleveland also

argued that Eighmey’s claims were barred by res judicata because she paid her ticket

and did not contest the violation.
              The trial court granted Eighmey’s motion for class certification. In a

written opinion, the court expressly found that Eighmey met all the requirements

for class certification set forth in Civ.R. 23 and certified the following class:

      All persons (a) issued tickets or notices of Liability by a “mobile speed
      unit” under Cleveland Codified [O]rdinance[s] 413.031 et seq., (b)
      during the period September 25, 2013 to December 26, 2016, (c) which
      were not warnings, and (d) upon which there was not a finding of no
      liability pursuant to [] 413.031(k).

              The opinion did not mention Cleveland’s arguments regarding

Eighmey’s inability to represent the class due to her alleged failure to exhaust

administrative remedies, res judicata, or standing. Rather, the trial court found that

Eighmey’s claims were typical of the class because “[t]here [wa]s no express conflict

between the interests of named class representative, Allyson Eighmey, and the

interests of putative class members.”

              Cleveland filed an appeal challenging the trial court’s judgment

granting class certification. Eighmey v. Cleveland, 8th Dist. Cuyahoga No. 104779,

2017-Ohio-7092. At the time Cleveland filed the appeal, the trial court had not ruled

on Eighmey’s or Cleveland’s motions for summary judgment.

              On appeal, this court reversed the trial court’s order granting class

certification. This court found that Eighmey, as the class representative, failed to

meet the typicality requirement of Civ.R. 23. As a result, this court remanded the

matter “for further proceedings to determine the merits of Eighmey’s claims and

Cleveland’s defenses and for the possible substitution of a more suitable class

representative.” Id. at ¶ 25.
              On remand, Eighmey filed a motion “to re-certify the class pursuant to

mandate from 8th District Court of Appeals” on October 3, 2017. In her motion,

Eighmey sought to resolve the typicality issue by removing class members that

challenged or appealed a ticket from a mobile traffic camera. Eighmey sought

certification of the following class: “All persons (a) issued tickets or notices of

liability by a ‘mobile speed unit’ under Cleveland Codified Ordinance[s] 413.031 et

seq., (b) during the period September 25, 2013 to December 26, 2013,1 (c) which

were not warnings, and (d) who did not appeal the ticket or notice of liability.”

              Cleveland filed a brief in opposition to Eighmey’s motion to recertify

on October 11, 2017. Therein, Cleveland disputed Eighmey’s assertion that the

Eighth District mandated or ordered the trial court to recertify the class. Cleveland

argued that the case was remanded for adjudication of Eighmey’s claims on the

merits, rather than recertification of her proposed class. Cleveland also contended

that Eighmey and the proposed members of the amended class would lack standing

to assert claims against Cleveland because (1) they failed to exhaust administrative

remedies, and (2) their claims were barred by res judicata because they paid the

tickets without challenging the tickets or filing an appeal pursuant to the procedures

set forth in C.C.O. 413.031.




      1  Eighmey’s motion to recertify provided, in relevant part, “[t]he original class
definition incorrectly identified the class period as September 25, 2013 to December 26,
2016. The amended definition has altered the class period to September 25, 2013 to
December 26, 2013.”
                 On April 10, 2019, the trial court issued a judgment entry granting the

motion for summary judgment filed by Cleveland on July 1, 2016, and denying

Eighmey’s motion to recertify the class as moot. The trial court concluded, in

relevant part,

      Eighmey paid her fine and waived her right to appeal under C.C.O.
      413.031, and as a result lacks standing and her claim is barred by res
      judicata. Therefore, Plaintiffs motion to re-certify class is denied as
      moot, and Defendant City of Cleveland’s motion for summary
      judgment, filed July 1, 2016, is granted. Case is dismissed with
      prejudice and removed from the Court’s active docket.

                 It is from this judgment that Eighmey filed the instant appeal on

May 8, 2019. She assigns one error for review:

      I. The trial court erred in granting [Cleveland’s] motion for summary
      judgment.

                                   II. Law and Analysis

                                    A. Scope of Appeal

                 Eighmey brings this appeal challenging the trial court’s April 9, 2019

judgment. In the April 9, 2019 judgment entry, the trial court granted Cleveland’s

motion for summary judgment and denied Eighmey’s motion to recertify the class

as moot.

                 In her notice of appeal, Eighmey indicates that she is appealing from

the trial court’s judgment “denying [her] motion to re-certify the class and

dismissing [her] case with prejudice[.]” The record reflects that the trial court

denied Eighmey’s motion to recertify the class as moot rather than ruling upon the
merits of her motion. Accordingly, at this time, Eighmey’s motion to recertify the

class is not properly before this court.

              We note, however, that there is nothing precluding Eighmey from

seeking recertification of the class. In reversing the trial court’s judgment, this court

explained in the August 2017 opinion that based on the original class definition,

which included all persons that received a ticket — regardless of whether or not they

filed an appeal — Cleveland’s standing and res judicata defenses, premised on the

fact that Eighmey paid the ticket without filing an appeal, would have predominated

the litigation if Eighmey remained the class representative.

              The sole issue before this court in the instant appeal is whether the

trial court erred in granting Cleveland’s motion for summary judgment. More

specifically, the issue is whether the trial court erred in granting Cleveland’s motion

for summary judgment on the basis that (1) Eighmey lacked standing to assert her

unjust enrichment claim against Cleveland, and (2) Eighmey’s unjust enrichment

claim is barred by res judicata.

              Accordingly, the scope of this appeal will focus on the trial court’s

judgment granting Cleveland’s summary judgment motion rather than the issue of

class certification and the requirements under Civ.R. 23.

                                B. Standard of Review

               An appellate court reviews an award of summary judgment de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “We

apply the same standard as the trial court, viewing the facts in the case in a light
most favorable to the nonmoving party and resolving any doubt in favor of the

nonmoving party.” Thompson v. Lyndhurst, 8th Dist. Cuyahoga No. 107695, 2019-

Ohio-3277, ¶ 19, citing Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12, 467

N.E.2d 1378 (6th Dist.1983).

              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

at 105, 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).

               “The moving party has the initial responsibility of establishing that it

is entitled to summary judgment.” UBS Fin. Servs. v. Lacava, 8th Dist. Cuyahoga

No. 106256, 2018-Ohio-3165, ¶ 17, citing 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, ¶ 16, citing Dresher at 293.

              “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.” Lacava at ¶ 18, citing Dresher at
id. Thereafter, “[s]ummary judgment is appropriate if the nonmoving party fails to

meet this burden.” Id.

              In its motion for summary judgment, Cleveland argued that Eighmey

“has no recognizable [sic] cause of action as a matter of law based on her lack of

standing, failure to exhaust her available administrative remedies, and application

of the res judicata doctrine based on her voluntary payment and admission of

liability.” As noted above, in granting Cleveland’s motion for summary judgment,

the trial court concluded that “Eighmey paid her fine and waived her right to appeal

under [C.C.O.] 413.031[(k)], and as a result lacks standing and her claim is barred

by res judicata.”

              After reviewing the record, and for the reasons set forth below, we find

that the trial erred in granting Cleveland’s motion for summary judgment.

                                      C. Standing

              First, the trial court erred in concluding that Eighmey lacked standing

to assert her unjust enrichment claim against Cleveland. In order to establish

standing, a plaintiff must demonstrate that he or she suffered “(1) an injury that is

(2) fairly traceable to the defendant’s allegedly unlawful conduct, and (3) likely to be

redressed by the requested relief.” Moore v. Middletown, 133 Ohio St.3d 55, 2012-

Ohio-3897, 975 N.E.2d 977, ¶ 22, citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

              In this case, Eighmey challenged the validity of her ticket on the basis

that Cleveland failed to comply with C.C.O. 413.031(g). In her complaint, Eighmey
asserted a single cause of action for unjust enrichment, alleging that tickets issued

and penalties imposed were unlawful and void because “the mobile speed units were

neither plainly marked, nor vehicles[.]” Complaint at ¶ 17. Eighmey asserted that

the mobile speed units contained “no distinguishable markings whatsoever.” Id. at

¶ 10. As such, Eighmey maintained that the mobile speed units failed to comply with

the requirements set forth in C.C.O. 413.031(g). Cleveland does not dispute that the

mobile speed units failed to comply with C.C.O. 413.031(g).

              Because Eighmey paid a penalty for a ticket that was invalidly issued,

she has standing to assert her unjust enrichment claim against Cleveland. Eighmey

is not challenging the adequacy of the appeals process. Accordingly, the fact that

Eighmey did not file an appeal contesting her ticket is inconsequential.

              The trial court’s reliance on Jodka v. Cleveland, 2014-Ohio-208, 6

N.E.3d 1208 (8th Dist.), in support of its conclusion that Eighmey lacked standing

is misplaced. Jodka involved a home rule argument in which the plaintiff alleged

that the appeals process under C.C.O. 413.031(k) was unconstitutional. This court

held that the plaintiff lacked standing to assert his unjust enrichment claim

against the city because he never availed himself of the appeals process under

C.C.O. 413.031(k) and (l).   Here, Eighmey is not challenging the adequacy or

constitutionality of the appeals process under C.C.O. 413.031(k) — she is challenging

whether the ticket should have been issued in the first place. Accordingly, Jodka is

inapposite.
                 For all of the foregoing reasons, we find that Eighmey sufficiently

established standing to assert her unjust enrichment claim against Cleveland. The

trial court erred in granting Cleveland’s summary judgment motion in this respect.

                                    D. Res Judicata

                 Second, the trial court erred in concluding that Eighmey’s claim was

barred by res judicata.

      In Ohio, “[t]he doctrine of res judicata encompasses the two related
      concepts of claim preclusion, also known as res judicata or estoppel by
      judgment, and issue preclusion, also known as collateral estoppel.”
      O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102,
      862 N.E.2d 803, ¶ 6. “Claim preclusion prevents subsequent actions,
      by the same parties or their privies, based upon any claim arising out
      of a transaction that was the subject matter of a previous action.” Id.
      The previous action is conclusive for all claims that were or that could
      have been litigated in the first action. See Holzemer v. Urbanski[, 86
      Ohio St.3d 129, 133,712 N.E.2d 713 (1999)].

(Emphasis added.) State ex rel. Schachter v. Ohio Pub. Emps. Retirement Bd., 121

Ohio St.3d 526, 2009-Ohio-1704, 905 N.E.2d 1210, ¶ 27.

                 C.C.O. 413.031(k), governing the appeals process, provides, in

relevant part,

      Liability shall not be found where the evidence shows that the
      automated camera captured an event that is not an offense, including
      each of the following events and such others as may be established by
      rules and regulations issued by the Director of Public Safety under the
      authority of division (n) of this section:

      (1) The motorist stops in time to avoid violating a red light indication;

      (2) The motorist proceeds through a red light indication as part of
      funeral procession;
      (3) The motorist is operating a City-owned emergency vehicle with its
      emergency lights activated and proceeds through a red light indication
      or exceeds the posted speed limitation;

      (4) The motorist is directed by a police officer on the scene contrary to
      the traffic signal indication.

      Liability shall also be excused if a vehicle is observed committing an
      offense where the vehicle was stolen prior to the offense and the owner
      has filed a police report.

              In this case, after reviewing the record, we find that the doctrine of res

judicata is inapplicable. The appeals process set forth in C.C.O. 413.031(k) does not

provide for a ticket to be invalidated on the basis that Cleveland failed to comply

with C.C.O. 413.031(g). Because Eighmey could not have contested the ticket on the

basis that Cleveland failed to comply with C.C.O. 413.031(g), and because a hearing

examiner was not authorized by the language of the ordinance to void a ticket on the

basis that Cleveland failed to comply with C.C.O. 413.031(g), the doctrine of res

judicata does not preclude Eighmey from raising her argument regarding

Cleveland’s failure to comply with C.C.O. 413.031(g) in her complaint.

              For all of the foregoing reasons, we find that Eighmey’s unjust

enrichment claim is not barred by res judicata. The trial court erred in granting

Cleveland’s summary judgment motion in this respect.

                E. Failure to Exhaust Administrative Remedies

              As noted above, Cleveland argued in its summary judgment motion

that Eighmey was precluded from asserting her unjust enrichment claim because

she failed to exhaust the administrative remedies under C.C.O. 413.031(k). The trial

court did not specifically address the administrative remedies issue in granting
Cleveland’s summary judgment motion. Accordingly, it would be improper for us

to do so in this appeal.

               We note, however, that it is unclear whether Eighmey would be

subject to the administrative appeal process set forth in C.C.O. 413.031(k). As noted

above, C.C.O. 413.031(k) did not provide for a ticket being invalidated on the basis

that Cleveland failed to comply with C.C.O. 413.031(g).

                                   III. Conclusion

              After thoroughly reviewing the record, we reverse the trial court’s

judgment. Eighmey is challenging the validity of the ticket on the basis that

Cleveland failed to comply with C.C.O. 413.031(g). She is not challenging the

adequacy or constitutionality of the appeals process under C.C.O. 413.031(k).

Cleveland does not dispute that the mobile speed units failed to comply with C.C.O.

413.031(g).

               Eighmey sufficiently demonstrated the existence of genuine issues of

material fact regarding whether the tickets were valid based on Cleveland’s failure

to comply with C.C.O. 413.031(g). Accordingly, the trial court erred in granting

Cleveland’s motion for summary judgment.

               The trial court’s judgment is reversed, and the matter is remanded for

further proceedings on the merits of Eighmey’s unjust enrichment claim.

               Judgment reversed and remanded.

      It is ordered that appellant recover of appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

SEAN C. GALLAGHER, P.J., and
RAYMOND C. HEADEN, J., CONCUR
