COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA CASE NOS. 67589, 67590, 67591, 67592 AND 67593 CITY OF BROOKLYN : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION SHARON BRONCO DBA BRONCO : CONSTR. ET AL. : Defendants-appellees : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 27, 1995 CHARACTER OF PROCEEDING : Civil appeals from Parma Municipal Court Cases : Nos. 94-CRB-955, 956, 957, 958, 959 JUDGMENT : Appeals dismissed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES SHARON BRONCO AND JOSEPH CIACCHI: Peter Sackett John M. Manos 6741 Ridge Road #102 Manos & LoConti Co., L.P.A. Parma, Ohio 44129 34950 Chardon Road, Suite 206 Willoughby Hills, Ohio 44094 FOR DEFENDANT-APPELLEE CAMELO MILANO: Paul Mancino, Jr. 75 Public Square Cleveland, Ohio 44113-2098 FOR DEFENDANT-APPELLEE NEIL HAVERLY: A.J. Lepri 8775 Olde Eight Road Northfield, Ohio 44067 - 2 - HARPER, J.: Plaintiff-appellant, the city of Brooklyn, received residential home owner complaints through Building Commissioner Richard Miles regarding driveway/concrete work performed in 1993 by defendants-appellees, Carmelo Milano dba Anthony Concrete ("Milano"); Neil Haverly dba Garages Unlimited ("Haverly"); Sharon 1 Bronco dba Bronco Construction ("Bronco") ; Joseph Ciacchi ("Ciacchi"). Miles inspected the premises and concluded that the driveways were defective. Miles forwarded letters to the defendants in March 1994 in which he directed them to replace defective concrete at a multitude of residences. Miles also advised them that the work was to be completed by May 1, 1994. Citations and warrants were issued against each defendant on May 2, 1994 when the work was not completed by the scheduled date. The defendants were charged with "fail[ure] to comply to a lawful order of the Building Commissioner to replace defective concrete at [specified addresses] in violation of PM-109.1" of the Building Officials & Code Administrators National Property Maintenance Code ("the BOCA Code"). The city adopted the BOCA Code as its property maintenance code on February 11, 1991 by Ordinance No. 1990-76 of the Codified Ordinances of the city of Brooklyn. 1 This defendant also appears as Sharon Branco dba Branco Construction in the record. - 3 - Mayor Coyne recused himself from the cases and the cases were transferred to Parma Municipal Court where they were subsequently joined for trial at the city's request pursuant to Crim.R. 8, 13. 2 All defendants entered pleas of not guilty to the charges. Bronco and Ciacchi subsequently filed motions to suppress the orders issued by Commissioner Miles, said motions being heard by the trial court on June 16, 1994. Haverly orally moved to dismiss the complaint at the hearing, and Milano later filed a motion to suppress which incorporated Bronco's and Ciacchi's motion. Miles testified at the suppression hearing that Bronco and Ciacchi pulled permits for the concrete work, and the Brooklyn Building Department inspected and passed the driveways upon completion. The defendants stipulated that the concrete was defective; however, they asserted that the concrete supplier was the liable party. Counsel for the city stipulated that none of the defendants were "owners, operators or occupants" of structures located in the city. Moreover, both counsel and Miles failed to cite a portion of the BOCA Code which required contractors to maintain and/or repair defective concrete. The trial court searched the entire BOCA Code and was unsuccessful in its attempt to locate a relevant regulation. The only exception was PM-301.3 which requires "All sidewalks, 2 The cases against defendants were assigned five lower court case numbers: Milano, 94 CRB 955; Haverly, 94 CRB 956; Bronco, 94 CRB 957 and 94 CRB 959; Ciacchi, 94 CRB 958. - 4 - walkways, driveways, parking spaces and similar areas shall be kept in a proper state of repair, and maintained free of hazardous conditions." The trial court, taking into consideration the defendants' argument that the city had to demonstrate a code violation by them to proceed with the prosecution, found and concluded: *** Although Defendants stipulated at the suppression hearing that the concrete was in some manner defective, the City stipulated that the Defendants were not the owners of the premises. Therefore pursuant to PM-300.2 which provides "The owner of the premises shall maintain the structures and exterior property ***" this section can not be applied as to the Defendants charged herein. The Defendants are not the owners. In order to be a lawful order, the Defendants must have violated a regulation as to the work performed. No such regulation having been specified within the charging instrument, the lawfulness of the order must fail. *** There is without question authority in the BOCA code and applicable ordinances to order compliance therewith. And failure to obey a lawful order may be a criminal offense, but it does not exist in this case under these facts. *** The BOCA code does not adequately define criminal conduct as it relates to the workmanship, or materials involved in the installation of a cement driveway. As a result, this Court can not properly exercise its enforcement powers. Although the alleged victims may ultimately be entitled to the replacement of their driveways, the result can not be achieved by means of this criminal case. The determination of responsibility for the replacement of the driveways in question must be answered in a civil forum. This court decides only the question of criminality, and a criminal act has not been established. - 5 - *** The trial court determined further that the city failed to meet the notice requirements contained in the BOCA Code. Specifically, Sections PM-106.2(5) and PM-111 provide appeal or review processes which were not included in the city's notices to the defendants. The court determined that the city's failure to provide the appropriate notices proved to be fatal to its case as well, citing Hoehamer v. Village of Elmwood Park (1932), 198 N.E. 345 in support of its conclusion. The trial court prepared one journal entry reflecting the granting of the motion to suppress as to all parties. Each of the five lower court files contained a copy of the entry. However, the entry was filed and journalized as to Haverly, Bronco and Ciacchi on June 28, 1994 (journal entry 88,49398) whereas the entry as to Milano was filed and journalized on July 7, 1994 (journal entry 88, 49440). The city filed five notices of appeal on July 11, 1994. Each 3 case was assigned a separate appellate case number. This court consolidated App. Nos. 67589, 67590, 67591, 67592 and 67593 for record, briefing, hearing and disposition on August 2, 1994. The trial court granted a stay of the proceedings pending the disposition of these appeals. 3 App. No. 67589 applies to Milano (94 CRB 955); App. No. 67590 applies to Haverly (94 CRB 956); App. Nos. 67591 and 67593 apply to Bronco (94 CRB 957 and 94 CRB 959 respectively); and App. No. 67592 applies to Ciacchi. - 6 - In its sole assignment of error, the city submits that the trial court erred in its suppression of Commissioner Miles' orders. One of the initial concerns of three of the four defendants is whether the city timely filed its notices of appeal as required under App.R. 4(B). Motions to dismiss App. Nos. 67590, 67591, 67592 and 67593 are currently pending before this court. The issue of whether the city timely appealed from the trial court's ruling is moot, however, in light of our determination infra that we lack jurisdiction to entertain all of the appeals. The city presents a multi-faceted argument regarding the alleged impropriety of the trial court's suppression of Miles' orders. The city first challenges the trial court's character- ization of the motion as one filed under Crim.R. 12(B)(1). It then asserts that the trial court should have considered the motion as a motion in limine rather than a motion to suppress because the defendants were not seeking to suppress illegally obtained evidence. The city also attacks the trial court's conclusion that the city was without legal authority to pursue criminal actions against any of the defendants since they were not owners of the premises with the defective driveways. The trial court conducted a survey of the BOCA Code and failed to find any section which imposed a duty on defendants to replace defectively installed concrete. The city itself could not locate a specific provision governing the alleged criminal acts of defendants. Consequently, the trial court concluded that Miles was - 7 - without authority under the BOCA Code to cite the defendants with a criminal misdemeanor, and the city was without authority to criminally charged them. As set forth supra, in its judgment entry, the trial court effectively dismissed the complaints against the defendants when it concluded that the city failed to establish criminal acts. Rather than dismiss the complaints, however, the trial court granted the motions to suppress, and then stayed the proceedings. R.C. 2505.03 states that a party may only appeal from the trial court's final order. A final order is any order which, in effect, determines the action in the trial court. R.C. 2505.02. R.C. 2945.67(A) deals with the state's right to appeal in criminal proceedings. It provides, in pertinent part: "A prosecuting attorney *** may appeal as a matter or [of] right any decision of a trial court in a criminal case *** which decision grants *** a motion to suppress evidence." The statutory procedure is supplemented by Crim.R. 12(J). State v. Davidson (1985), 17 Ohio St.3d 132, 134; State v. Buckingham (1980), 62 Ohio St.2d 14, 16. The Supreme Court of Ohio addressed the language contained in both the statute and criminal rule regarding the granting of a "motion to suppress evidence" in Davidson. The court stated: *** The determination of whether a motion is a "motion to suppress" or a "motion in limine" does not depend on what it is labeled. It depends on the type of relief it seeks to obtain. *** - 8 - *** We hold that any motion which seeks to obtain a judgment suppressing evidence is "a motion to suppress" for purposes of R.C. 2945.67 and Crim.R. 12(J) where that motion, if granted, effectively destroys the ability of the state to prosecute. The fact that the motion is not labeled a "motion to suppress" is not controlling. If the trial court grants a motion which seeks to obtain a judgment to suppress evidence, the state can appeal *** Davidson, 135; see, also, State v. Ulis (1992), 65 Ohio St.3d 83. In the present case, the defendants moved to suppress, either orally or by written motion, the orders issued by Commissioner Miles. The trial court decided to review their arguments under Crim.R. 12(B)(1) which requires a defendant to raise defenses and objections based on defects in the institution of the proceedings prior to trial. The court then technically treated the "motions to suppress" as something other than said type of motion when it effectively dismissed the charges against the defendants as is so apparent from its judgment entry, i.e., when it concluded that the defendants committed no criminal acts. The trial court entered a judgment which far exceeded that required by a motion to suppress or even a defense or objection raised under Crim.R. 12(B)(1), the section under which the trial court stated it was reviewing the defendants' arguments. Since the trial court failed to reduce its legal conclusion as to liability to a final order under R.C. 2505.02, and then stayed the proceedings, we are without jurisdiction to review the city's arguments. Assuming arguendo that the city presents final appealable orders for our review, we would still be required to dismiss four of the five appeals. The trial court entered its rulings as to - 9 - Bronco's, Haverly's and Ciacchi's "motions to suppress" on June 28, 1994 in journal entry 88,49398. The city had seven days to file notices of appeal from the decisions, Crim.R. 12(J), but failed to do so when it filed the notices on July 11, 1994. The city's appeals in App. Nos. 67590, 67591, 67592 and 67593 would, therefore, have been dismissed pursuant to Bronco's, Haverly's and Ciacchi's pending motions to dismiss the appeals. Appeals dismissed. - 10 - It is ordered that appellees recover of appellant their 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 Parma Municipal 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. PATRICIA BLACKMON, P.J., CONCURS; DIANE KARPINSKI, J., CONCUR IN JUDGMENT ONLY. (See Concurring opinion attached to Journal Entry and Opinion). JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza-tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 67589, 67590, 67591, 67592 AND 67593 : CITY OF BROOKLYN : : Plaintiff-Appellant : : -vs- : CONCURRING : : OPINION SHARON BRONCO DBA BRONCO : CONSTR. ET AL. : : Defendant-Appellee : : DATE: APRIL 27, 1995 KARPINSKI, J., CONCURRING IN JUDGMENT ONLY: I respectfully concur in the judgment of the majority only, and write separately to clarify a different basis for dismissal of the five appeals sub judice. The three appeals from the municipal court's orders granting Branco and Ciacchi's motions to suppress in Case Nos. 67591, 67592 and 67593 should be dismissed as untimely filed. The record demonstrates the July 11, 1994 notices of appeal were not filed within seven days of the June 28, 1994 orders granting the motions to suppress as required by Crim. R. 12(J). State v. Buckingham (1980), 62 Ohio St.2d 14, 16. The remaining two appeals in Case Nos. 67589 and 67590 should be dismissed as premature since the journal entries in these two cases do not constitute appealable orders. The two journal entries - 2 - are merely altered photocopies of the order entered in the above three cases with the respective defendant's name and case number added in handwriting. However, the two journal entries lack necessary original signatures by the municipal judge and do not contain a clear pronouncement of decision since they specifically refer only to Branco and Ciacchi's motions to suppress. State v. Ginocchio (1987), 38 Ohio App.3d 105. It is not clear who made the handwritten alterations to these two journal entries, particularly in light of the fact that the municipal court did not conduct any hearing on Milano and Haverly's motions to suppress. Accordingly, the five appeals should be dismissed for these reasons. .