[Cite as Cleveland v. Washington Mut. Bank, 125 Ohio St.3d 541, 2010-Ohio-2219.]




CITY OF CLEVELAND, APPELLANT, v. WASHINGTON MUTUAL BANK, APPELLEE.
                   [Cite as Cleveland v. Washington Mut. Bank,
                       125 Ohio St.3d 541, 2010-Ohio-2219.]
Criminal law — R. C. 2941.47 does not authorize a trial of a corporation in
        absentia in a criminal proceeding that is initiated by affidavit or
        complaint in a municipal court.
  (No. 2009-0441 ⎯ Submitted December 2, 2009 ⎯ Decided May 26, 2010.)
             Appeal from the Court of Appeals for Cuyahoga County,
                             No. 91379, 2008-Ohio-6956.
                                __________________
                              SYLLABUS OF THE COURT
R.C. 2941.47 does not authorize a trial of a corporation in absentia in a criminal
        proceeding that is initiated by affidavit or complaint in a municipal court.
                                __________________
        CUPP, J.
        {¶ 1} The issue in this case is whether R.C. 2941.47 authorizes the trial
of a corporation in absentia in criminal proceedings in municipal court. For the
reasons that follow, we conclude that it does not.
                                I. Procedural History
        {¶ 2} This appeal arises out of a trial in the Cleveland Municipal Court
in which appellee, Washington Mutual Bank, was charged by affidavit or
complaint with building- and-housing code violations on property that it owned.
        {¶ 3} Following a January 2007 inspection of the property, a city of
Cleveland housing inspector filed a complaint against the bank in February 2007,
alleging that the bank had failed to comply with an order of the director of
building and housing and had violated Cleveland building and housing codes
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pertaining to the exterior maintenance of the property. The certified-mail receipt
for that summons was accepted by a Deanne Kessler. The bank did not appear at
the May hearing.
       {¶ 4} In November 2007, a speedy-trial waiver signed by “Romi T. Fox”
as attorney for Washington Mutual was filed.
       {¶ 5} However, Fox’s motion to withdraw was granted after she
informed the court that she was unable to contact the bank and that the bank no
longer owned the property. Attached to the motion were title documents showing
that the bank had transferred the property to another person on June 25, 2007. The
municipal court scheduled the matter for trial in absentia. However, the court later
ordered the clerk to reissue the summons to the bank. The summons was
addressed to “Washington Mutual Corp. Service” at a Columbus, Ohio address.
The trial court’s docket indicates that the summons was issued by “regular
mail/certificate of mail” on February 15, 2008.
       {¶ 6} On April 7, 2008, the bank again failed to appear either through an
attorney or a corporate representative. The clerk entered a not-guilty plea on
behalf of the bank, and the court conducted a trial in absentia. The court found the
bank guilty as charged and imposed a fine of $100,000.
       {¶ 7} The bank appealed its conviction and sentence, contending that
R.C. 2941.47 did not authorize a trial in absentia. The court of appeals vacated the
conviction, concluding that R.C. 2941.47 did not apply to a charge initiated by a
complaint and did not provide for the trial in absentia conducted in this case.
Cleveland v. Washington Mut. Bank, 179 Ohio App.3d 692, 2008-Ohio-6956, 903
N.E.2d 384. The court of appeals denied the city’s motion for reconsideration.
The appellate court declined to address the question whether R.C. 2941.47 may
apply to misdemeanor proceedings initiated by indictment because this case was
not brought by indictment.




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                               January Term, 2010




       {¶ 8} The city appealed to this court, and we granted discretionary
review on two of the city’s propositions of law: (1) whether R.C. 2941.35 and the
rules of statutory construction authorize a misdemeanor trial in absentia when the
service and pleading requirements of R.C. 2941.47 have been met and (2) whether
R.C. 2938.12 and Crim.R. 43 apply or whether R.C. 2941.47 is conclusive.
                                   II. Analysis
       {¶ 9} To answer the question whether the trial in absentia of Washington
Mutual in this case was authorized by Ohio law, we review the language of the
statutes, including R.C. 2941.47 and statutes concerning misdemeanor charges
brought in municipal court.
                           A. Application of R.C. 2941.47
       {¶ 10} The court of appeals held that Washington Mutual’s conviction
must be vacated because R.C. 2941.47—the statute the trial court invoked for its
trial in absentia of the bank—did not authorize such a procedure for criminal
prosecutions instituted by complaint, as in this case. Washington Mut. Bank, 179
Ohio App.3d 692, 2008-Ohio-6956, 903 N.E.2d 384, at ¶ 8.            R.C. 2941.47
provides:
       {¶ 11} “When an indictment is returned or information filed against a
corporation, a summons commanding the sheriff to notify the accused thereof,
returnable on the seventh day after its date, shall issue on praecipe of the
prosecuting attorney. Such summons with a copy of the indictment shall be served
and returned in the manner provided for service of summons upon corporations in
civil actions. If the service cannot be made in the county where the prosecution
began, the sheriff may make service in any other county of the state, upon the
president, secretary, superintendent, clerk, treasurer, cashier, managing agent, or
other chief officer thereof, or by leaving a copy at a general or branch office or
usual place of doing business of such corporation, with the person having charge
thereof. Such corporation shall appear by one of its officers or by counsel on or



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before the return day of the summons served and answer to the indictment or
information by motion, demurrer, or plea, and upon failure to make such
appearance and answer, the clerk of the court of common pleas shall enter a plea
of ‘not guilty.’ Upon such appearance being made or plea entered, the
corporation is before the court until the case is finally disposed of. On said
indictment or information no warrant of arrest may issue except for individuals
who may be included in such indictment or information.” (Emphasis added.)
          {¶ 12} By its plain language, R.C. 2941.47 applies in criminal cases
against a corporation that were instituted by indictment or information. The
statute also provides that “upon failure [of the corporation] to make [an]
appearance and answer, the clerk of the court of common pleas shall enter a plea
of ‘not guilty.’ ” By its terms, R.C. 2941.47 addresses prosecutions instituted by
indictment or information against corporations in the court of common pleas and
directs the clerk of that court to enter a “not guilty” plea on behalf of a
corporation that has failed to appear.
          {¶ 13} In this case, the misdemeanor prosecution against Washington
Mutual was instituted by complaint or affidavit in the municipal court, not by
indictment or information in the common pleas court. The court of appeals was
mistaken in stating that prosecution by indictment and information is reserved for
felony prosecutions, because misdemeanors also may be presented in common
pleas court. Washington Mut. Bank, 179 Ohio App.3d 692, 2008-Ohio-6956, 903
N.E.2d 384, at ¶ 8.     Crim.R. 7(A) confirms that “[a] misdemeanor may be
prosecuted by indictment or information in the court of common pleas, or by
complaint * * * in courts inferior to the court of common pleas.” (Emphasis
added.)
          {¶ 14} However, the court of appeals correctly concluded that R.C.
2941.47 applies to prosecutions against a corporation that were instituted by
indictment or information. Because this criminal prosecution was brought by




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affidavit or complaint in municipal court rather than by indictment or information
in common pleas court, R.C. 2941.47 does not apply.
        {¶ 15} The city argues that by virtue of R.C. 2941.35, the procedure in
R.C. 2941.47 applies to misdemeanor prosecutions brought by complaint or
affidavit against a corporation in municipal court as well as to those initiated by
indictment or information in common pleas court. R.C. 2941.35 provides:
        {¶ 16} “Prosecutions for misdemeanors may be instituted by a prosecuting
attorney by affidavit or such other method as is provided by law in such courts as
have original jurisdiction in misdemeanor. Laws as to form, sufficiency,
amendments, objections, and exceptions to indictments and as to service thereof
apply to such affidavits and warrants issued thereon.” (Emphasis added.)
        {¶ 17} This court, in Cleveland v. Ely (1963), 174 Ohio St. 403, 404, 23
O.O.2d 46, 189 N.E.2d 724, held that under R.C. 2941.35 and 1901.211 statutory
procedures for challenging an indictment apply to criminal charges instituted by
affidavit or complaint. The other appellate court cases on which the city relies to
argue that R.C. 2941.35 authorizes the procedure in R.C. 2941.47 in a prosecution
by affidavit or complaint in municipal court pertain to challenges to the form or
sufficiency of an affidavit or complaint, e.g., Lima v. Ward (1966), 8 Ohio App.2d
177, 178, 37 O.O.2d 193, 220 N.E.2d 843, reversed on other grounds (1967), 10
Ohio St.2d 137, 39 O.O.2d 123, 226 N.E.2d 737, and State v. Gundlach (1960),
112 Ohio App. 471, 474, 15 O.O.2d 192, 174 N.E.2d 267; or a challenge to an
amendment to a complaint, Toledo v. Cousino (Nov. 23, 1984), 6th Dist. No. L-
84-103, 1984 WL 14423; or a challenge to a variance between the affidavit and
the evidence, State v. Ross (1973), 36 Ohio App.2d 185, 205-208, 65 O.O.2d 316,
304 N.E.2d 396.        R.C. 2941.35 specifically states that “[l]aws as to form,


1. The current version of R.C. 1901.21(A) provides: “In a criminal case or proceeding, the
practice, procedure, and mode of bringing and conducting prosecutions for offenses shall be as
provided in the Criminal Rules * * *.”




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sufficiency, [and] amendments * * * to indictments” apply to affidavits or
complaints in misdemeanor cases. None of these cases addresses whether the
trial procedure in R.C. 2941.47 applies to a prosecution of a corporation by
complaint or affidavit in a municipal court.
       {¶ 18} Neither Ely nor the appellate court cases on which the city relies
require that the trial procedure set forth in R.C. 2941.47 apply to misdemeanor
prosecutions instituted by complaint or affidavit in municipal court. Although
Washington Mutual challenges the sufficiency of service of the summons in this
case, the issue before us is whether R.C. 2941.47 permits a criminal trial of a
corporation in absentia after proper service of process. R.C. 2941.35 specifically
mentions laws governing the sufficiency of an indictment and the sufficiency of
service, but it does not mention laws that govern trial procedure. R.C. 2941.35
thus does not expressly allow a trial in absentia in municipal court prosecutions of
a corporation, and the cases construing R.C. 2941.35 on which the city relies do
not answer the question before us today.
                         B. Trial of Corporation in Absentia
       {¶ 19} The city argues that the language of R.C. 2941.47 authorizes the
trial of a corporation in absentia. The city does not contend that other statutes or
court rules, such as R.C. 2938.12 or 2945.12, or Crim.R. 43, authorize a criminal
trial of a corporation in absentia such as occurred in this case. The city bases its
argument that R.C. 2941.47 authorizes a trial of a corporation in absentia on the
following language of the statute:
       {¶ 20} “Such corporation shall appear by one of its officers or by counsel
on or before the return day of the summons served and answer to the indictment
or information by motion, demurrer, or plea, and upon failure to make such
appearance and answer, the clerk of the court of common pleas shall enter a plea
of ‘not guilty.’ Upon such appearance being made or plea entered [i.e., an
appearance by the corporation through one of its officers or its legal counsel, or a




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                                January Term, 2010




plea entered by the clerk of the common pleas court], the corporation is before
the court until the case is finally disposed of.” (Emphasis added.)
       {¶ 21} However, our holding that R.C. 2941.47 does not apply to a
prosecution instituted by affidavit or complaint against a corporation in municipal
court is determinative of this case; the prosecution here is one that was instituted
in such a manner. Accordingly, we have no occasion to decide whether R.C.
2941.47 provides for a trial of a corporation in absentia in proceedings other than
those brought by affidavit or complaint in a municipal court, or how R.C. 2941.47
may apply in relation to Crim.R. 43 or other statutes such as R.C. 2938.12.
                                  III. Conclusion
       {¶ 22} For the above reasons, we hold that R.C. 2941.47 does not
authorize a trial of a corporation in absentia in a criminal proceeding that is
initiated by affidavit or complaint in a municipal court. Accordingly, we affirm
the judgment of the Cuyahoga County Court of Appeals and remand for further
proceedings not inconsistent with this opinion.
                                                                 Judgment affirmed
                                                               and cause remanded.
       PFEIFER, LUNDBERG STRATTON, O’DONNELL, and LANZINGER, JJ., concur.
       O’CONNOR, J., concurs separately.
       BROWN, C.J., not participating.
                              __________________
       O’CONNOR, J., concurring.
       {¶ 23} I join the majority opinion but write separately to urge the General
Assembly to study the problem that gives rise to cases like this one: high rates of
foreclosure in urban neighborhoods dominated by absentee owners.
       {¶ 24} Cleveland, like other Ohio cities, has witnessed the spread of
blighted neighborhoods caused by many factors, including absentee owners
(corporate and individual) who permit properties to go into ruin and decay. The



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presence of abandoned or untended buildings “portends and precipitates a
downward spiral in the quality of life of [a] community.” Melissa C. King,
Recouping Costs for Repairing “Broken Windows”: The Use of Public Nuisance
by Cities to Hold Banks Liable for the Costs of Mass Foreclosures (2009), 45 Tort
Trial & Ins. Prac.L.J. 97, 98. Cities already struggling to address the challenges
of urban life are now desperate for assistance in their efforts to stop additional
blight and deterioration.
       {¶ 25} City prosecutors working in municipal and common pleas courts
must have a mechanism through which they can constitutionally provide notice to
owners but proceed with trial in absentia if an owner fails to respond to defend the
claim. Legislative modification of R.C. 2941.47 to permit a municipal court to
proceed in absentia is one manner by which this goal can be accomplished.
       {¶ 26} In asserting the need for action, I am aware that many lenders are
now inundated with foreclosed properties. But that dynamic is not likely to
change in the foreseeable future, and lenders, as the lawful property owners, must
now address the problem. They may choose to do so through cooperative efforts
with city leaders. But ignoring the problem will only contribute to it, a result that
is not legally, fiscally, or morally acceptable.
                                __________________
       Robert J. Triozzi, Cleveland Law Director, and Karyn J. Lynn, Assistant
Law Director, for appellant.
       Bricker & Eckler, L.L.P., Vladimir P. Belo, and Nelson M. Reid; and
Shapiro, Van Ess, Phillips & Barragate, L.L.P., and Benjamin D. Carnahan, for
appellee.
       Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
and Alexandra T. Schimmer, Chief Deputy Solicitor General, urging reversal for
amicus curiae, Ohio Attorney General.
                             ______________________




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