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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
BRIEF IN OPPOSITION
March 14,2023 21:06
By: CAROLYN M. DOWNEY 0064371
Confirmation Nbr. 2801587
LAURA CYROCKIET. AL., ET AL CV 23 975151
vs.
Judge: JOAN SYNENBERG
CITY OF CLEVELAND ET. AL., ET AL
Pages Filed: 5
Electronically Filed 03/14/2023 21:06 / BRIEF / CV 23 975151 / Confirmation Nbr. 2801587 / CLCEJ
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY
LAURA CYROCKI, et al., ) CASE NO. CV -23-975151
)
Appellants, ) JUDGE JOAN SYNENBERG
)
Vs. )
)
)
CITY OF CLEVELAND, et al., ) APPELLEE CITY OF CLEVELAND'S
) RESPONSE TO APPELLANTS'
Appellees. ) MOTION TO SHOW CAUSE
)
Appellees City of Cleveland, et al. ("City") respectfully submits their Response to
Appellants' Motion for to Show Cause. Appellees move this Honorable Court to Deny the
Appellants' Motion to Show Cause or in the alternative find the motion moot for the reasons set
forth in the attached brief.
Respectfully submitted,
MARK D. GRIFFIN (0064141)
Director of Law
By: /s/ CAROLYN M. DOWNEY
CAROLYN M. DOWNEY (0064371)
Assistant Director of Law
City Hall—Room 106
601 Lakeside Avenue
Cleveland, Ohio 44114-1077
Phone (216) 664-3567
Fax (216) 420-8291
cdowney@clevelandohio.gov
Attorneys for Appellees
City of Cleveland, et al.
Electronically Filed 03/14/2023 21:06 / BRIEF / CV 23 975151 / Confirmation Nbr. 2801587 / CLCEJ
BRIEF IN SUPPORT
This Court through its Journal Entry dated March 10, 2023 states "Appellant's 2/22/23
Motion to Stay Board of Zoning Appeals Decision adopted January 30, 2023 is granted in part.
The Board of Zoning Appeals decisions in Calendar Nos. 23-002 & 23-013 shall be temporarily
stayed until further order of this Court. Motion to Intervene and for Leave to File Opposition
Response to Motion for Stay, filed 03/09/23 is granted. Intervenor shall file their response to
Motion to Stay by 3/24/23.”
The Journal Entry was released on Friday, March 10, 2023 and was time-stamped at 2:22
p.m. Counsel for the City became aware of the Court's decision on the morning of Monday, March
13, 2023. Immediately, a copy of the Journal Entry was sent directly to the Secretary of the
Board of Zoning Appeals ("Board") and to the attorney who advises the Board.
Later the same day, counsel for the City was informed (via a telephone voicemail from
the Appellant Laura Cyrocki) that a building permit had been issued to Ford-Hessler on Monday,
March 13, 2023. The permit states "to erect foundations only per approved plans. Separate
plumbing permit required."
Despite Ford-Hessler's Motion to Intervene being granted, they had not been added to
the docket as a party and therefore, were not served with notice of the March 10, 2023 Journal
Entry. On Monday, March 13, 2023, counsel for the City contacted the attorney for Ford-Hessler
to inform him of the recent developments.
It is clear that the issuance of the building permit was not a willful or malicious disregard
of the order from this Court. In addition, had the Appellants named Ford-Hessler as a party on
the initial Notice of Appeal, they would have been notified directly of the Court's ruling, they may
not have unknowingly secured the permit.
Electronically Filed 03/14/2023 21:06 / BRIEF / CV 23 975151 / Confirmation Nbr. 2801587 / CLCEJ
CONTEMPT
Contempt is direct if it occurs "in the presence of or so near the court or judge as to
obstruct the administration of justice,” and indirect contempt occurs outside the court's presence.”
Burt v. Dodge, 65 Ohio St.3d 34, 35, 599 N.E.2d 386 (1992).
State ex re. Corn v. Russo, 90 Ohio St.3d 551, 554 (2001) held that the distinction
between civil and criminal contempt is usually based on the purpose to be served by the sanction.”
In filing this motion, the Appellants must prove that the City disobeyed or disregarded the
court order in such a way to support a finding that the City disrespected the dignity of the court
or disrupted the administration of justice. Denovcheck v. Bd. Of Trumbull Cty. Com 'rs., (1988)
36 Ohio St.3d 14, 15; In re Contempt of Morris (8th Dist. Cuyahoga Cty. 1983), 11 Ohio App.3d
475, 479.
The City contends that the evidence is clear and convincing that the City did not
intentionally ignore the Court's Order when the building permit was issued.
OPPORTUNITY TO PURGE
R.C. 2705.10 provides a court the authority to fashion its own remedy. In civil contempt
sanctions, the court must also provide the individual or entity charged with civil contempt the
opportunity to purge by demonstrating compliance with the Court's order. Sakin.
It is reversible error for a trial court to impose a sanction for civil contempt without
providing the contemnor an opportunity to purge himself or herself of the contempt. Ohio Bur.
Of Workers' Comp. v. Sakin, 8th Dist. Cuyahoga No. 96173, 2011-Ohio-4260. A sanction for civil
contempt is intended to coerce compliance with a court's order. S.H.B. v. M.W.L., 8th Dist.
Cuyahoga No. 107258, 2019-Ohio-3036.
Electronically Filed 03/14/2023 21:06 / BRIEF / CV 23 975151 / Confirmation Nbr. 2801587 / CLCEJ
When the City became aware that the Court's Journal Entry, counsel immediately provided
the Board of Zoning Appeals with notice of the Temporary Stay that was in place. The City also
immediately informed the property owner, Ford-Hessler about the Journal Entry which granted a
temporary stay.
CONCLUSION
Civil contempt is a "sanction to enforce compliance with an order of the court or to
compensate for losses or damages sustained by reason of noncompliance." McComb v
Jacksonville Paper Co. (1949), 336 US 187, 191. The order of this Court was complied with the
decision of the Board of Zoning Appeals being Stayed. In addition, are no losses or damages that
were sustained by the Appellants as a result of the issuance of the permit. The permit that was
issued is limited to erecting a foundation, presumably concrete. This has not occurred and is
weather prohibited at this time. The status quo has been preserved.
For all of the reasons stated in this Brief, Appellee, City of Cleveland requests that this
Court deny Appellant's Motion to Show cause or in the Alternative find the motion moot.
Respectfully submitted,
MARK D. GRIFFIN (0064141)
Director of Law
By: /s/ CAROLYN M. DOWNEY
CAROLYN M. DOWNEY (0064371)
Assistant Director of Law
City Hall—Room 106
601 Lakeside Avenue
Cleveland, Ohio 44114-1077
Phone (216) 664-3567
Fax (216) 420-8291
cdowney@clevelandohio.gov
Attorneys for Appellee
City of Cleveland, et al.
Electronically Filed 03/14/2023 21:06 / BRIEF / CV 23 975151 / Confirmation Nbr. 2801587 / CLCEJ
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Appellee City of Cleveland's Response to
Appellant's Motion to Show Cause was filed electronically this 14th day of March 2023. Notice
of this filing will be sent by operation of the court's electronic filing system to counsel of record
for all parties as indicated on the electronic filing receipt. Parties and their counsel may access
this filing through the Court's system.
A copy of the Appellee City of Cleveland's Response to Appellant's Motion to
Show Cause was sent by email on the 14th day of March 2023 to the following:
Laura Cyrocki Appellant
11303 Hessler Road
Cleveland, OH 44106
Lcyrocki@ hotmail.com
Charles E. Hoven Appellant
11301 Hessler Road
Cleveland, OH 44106
plainpress@gmail.com
Majeed G. Makhlouf, Esq. Ford-Hessler Property Reorganization LLC
Berns, Ockner & Greenberger, LLC
3733 Park East Drive, Suite 200
Beachwood, OH 44122
mmakhlouf@bernsockner.com
/s/ CAROLYN M. DOWNEY_____
CAROLYN M. DOWNEY
ASSISTANT DIRECTOR OF LAW
Electronically Filed 03/14/2023 21:06 / BRIEF / CV 23 975151 / Confirmation Nbr. 2801587 / CLCEJ
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NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas BRIEF IN OPPOSITION March 14,2023 21:06 By: CAROLYN M. DOWNEY 0064371 Confirmation Nbr. 2801587 LAURA CYROCKIET. AL., ET AL CV 23 975151 vs. Judge: JOAN SYNENBERG CITY OF CLEVELAND ET. AL., ET AL Pages Filed: 5 Electronically Filed 03/14/2023 21:06 / BRIEF / CV 23 975151 / Confirmation Nbr. 2801587 / CLCEJ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY LAURA CYROCKI, et al., ) CASE NO. CV -23-975151 ) Appellants, ) JUDGE JOAN SYNENBERG ) Vs. ) ) ) CITY OF CLEVELAND, et al., ) APPELLEE CITY OF CLEVELAND'S ) RESPONSE TO APPELLANTS' Appellees. ) MOTION TO SHOW CAUSE ) Appellees City of Cleveland, et al. ("City") respectfully submits their Response to Appellants' Motion for to Show Cause. Appellees move this Honorable Court to Deny the Appellants' Motion to Show Cause or in the alternative find the motion moot for the reasons set forth in the attached brief. Respectfully submitted, MARK D. GRIFFIN (0064141) Director of Law By: /s/ CAROLYN M. DOWNEY CAROLYN M. DOWNEY (0064371) Assistant Director of Law City Hall—Room 106 601 Lakeside Avenue Cleveland, Ohio 44114-1077 Phone (216) 664-3567 Fax (216) 420-8291 cdowney@clevelandohio.gov Attorneys for Appellees City of Cleveland, et al. Electronically Filed 03/14/2023 21:06 / BRIEF / CV 23 975151 / Confirmation Nbr. 2801587 / CLCEJ BRIEF IN SUPPORT This Court through its Journal Entry dated March 10, 2023 states "Appellant's 2/22/23 Motion to Stay Board of Zoning Appeals Decision adopted January 30, 2023 is granted in part. The Board of Zoning Appeals decisions in Calendar Nos. 23-002 & 23-013 shall be temporarily stayed until further order of this Court. Motion to Intervene and for Leave to File Opposition Response to Motion for Stay, filed 03/09/23 is granted. Intervenor shall file their response to Motion to Stay by 3/24/23.” The Journal Entry was released on Friday, March 10, 2023 and was time-stamped at 2:22 p.m. Counsel for the City became aware of the Court's decision on the morning of Monday, March 13, 2023. Immediately, a copy of the Journal Entry was sent directly to the Secretary of the Board of Zoning Appeals ("Board") and to the attorney who advises the Board. Later the same day, counsel for the City was informed (via a telephone voicemail from the Appellant Laura Cyrocki) that a building permit had been issued to Ford-Hessler on Monday, March 13, 2023. The permit states "to erect foundations only per approved plans. Separate plumbing permit required." Despite Ford-Hessler's Motion to Intervene being granted, they had not been added to the docket as a party and therefore, were not served with notice of the March 10, 2023 Journal Entry. On Monday, March 13, 2023, counsel for the City contacted the attorney for Ford-Hessler to inform him of the recent developments. It is clear that the issuance of the building permit was not a willful or malicious disregard of the order from this Court. In addition, had the Appellants named Ford-Hessler as a party on the initial Notice of Appeal, they would have been notified directly of the Court's ruling, they may not have unknowingly secured the permit. Electronically Filed 03/14/2023 21:06 / BRIEF / CV 23 975151 / Confirmation Nbr. 2801587 / CLCEJ CONTEMPT Contempt is direct if it occurs "in the presence of or so near the court or judge as to obstruct the administration of justice,” and indirect contempt occurs outside the court's presence.” Burt v. Dodge, 65 Ohio St.3d 34, 35, 599 N.E.2d 386 (1992). State ex re. Corn v. Russo, 90 Ohio St.3d 551, 554 (2001) held that the distinction between civil and criminal contempt is usually based on the purpose to be served by the sanction.” In filing this motion, the Appellants must prove that the City disobeyed or disregarded the court order in such a way to support a finding that the City disrespected the dignity of the court or disrupted the administration of justice. Denovcheck v. Bd. Of Trumbull Cty. Com 'rs., (1988) 36 Ohio St.3d 14, 15; In re Contempt of Morris (8th Dist. Cuyahoga Cty. 1983), 11 Ohio App.3d 475, 479. The City contends that the evidence is clear and convincing that the City did not intentionally ignore the Court's Order when the building permit was issued. OPPORTUNITY TO PURGE R.C. 2705.10 provides a court the authority to fashion its own remedy. In civil contempt sanctions, the court must also provide the individual or entity charged with civil contempt the opportunity to purge by demonstrating compliance with the Court's order. Sakin. It is reversible error for a trial court to impose a sanction for civil contempt without providing the contemnor an opportunity to purge himself or herself of the contempt. Ohio Bur. Of Workers' Comp. v. Sakin, 8th Dist. Cuyahoga No. 96173, 2011-Ohio-4260. A sanction for civil contempt is intended to coerce compliance with a court's order. S.H.B. v. M.W.L., 8th Dist. Cuyahoga No. 107258, 2019-Ohio-3036. Electronically Filed 03/14/2023 21:06 / BRIEF / CV 23 975151 / Confirmation Nbr. 2801587 / CLCEJ When the City became aware that the Court's Journal Entry, counsel immediately provided the Board of Zoning Appeals with notice of the Temporary Stay that was in place. The City also immediately informed the property owner, Ford-Hessler about the Journal Entry which granted a temporary stay. CONCLUSION Civil contempt is a "sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance." McComb v Jacksonville Paper Co. (1949), 336 US 187, 191. The order of this Court was complied with the decision of the Board of Zoning Appeals being Stayed. In addition, are no losses or damages that were sustained by the Appellants as a result of the issuance of the permit. The permit that was issued is limited to erecting a foundation, presumably concrete. This has not occurred and is weather prohibited at this time. The status quo has been preserved. For all of the reasons stated in this Brief, Appellee, City of Cleveland requests that this Court deny Appellant's Motion to Show cause or in the Alternative find the motion moot. Respectfully submitted, MARK D. GRIFFIN (0064141) Director of Law By: /s/ CAROLYN M. DOWNEY CAROLYN M. DOWNEY (0064371) Assistant Director of Law City Hall—Room 106 601 Lakeside Avenue Cleveland, Ohio 44114-1077 Phone (216) 664-3567 Fax (216) 420-8291 cdowney@clevelandohio.gov Attorneys for Appellee City of Cleveland, et al. Electronically Filed 03/14/2023 21:06 / BRIEF / CV 23 975151 / Confirmation Nbr. 2801587 / CLCEJ CERTIFICATE OF SERVICE I hereby certify that the foregoing Appellee City of Cleveland's Response to Appellant's Motion to Show Cause was filed electronically this 14th day of March 2023. Notice of this filing will be sent by operation of the court's electronic filing system to counsel of record for all parties as indicated on the electronic filing receipt. Parties and their counsel may access this filing through the Court's system. A copy of the Appellee City of Cleveland's Response to Appellant's Motion to Show Cause was sent by email on the 14th day of March 2023 to the following: Laura Cyrocki Appellant 11303 Hessler Road Cleveland, OH 44106 Lcyrocki@ hotmail.com Charles E. Hoven Appellant 11301 Hessler Road Cleveland, OH 44106 plainpress@gmail.com Majeed G. Makhlouf, Esq. Ford-Hessler Property Reorganization LLC Berns, Ockner & Greenberger, LLC 3733 Park East Drive, Suite 200 Beachwood, OH 44122 mmakhlouf@bernsockner.com /s/ CAROLYN M. DOWNEY_____ CAROLYN M. DOWNEY ASSISTANT DIRECTOR OF LAW Electronically Filed 03/14/2023 21:06 / BRIEF / CV 23 975151 / Confirmation Nbr. 2801587 / CLCEJ