Ohio Properties, LLC v. City of Cleveland

Filing 30

Opinion and Order. Defendant's Motion for Summary Judgment (Related doc # 13 ) is granted. Plaintiff's Motion for Summary Judgment (Related doc # 28 ) is denied. Judge Christopher A. Boyko on 3/22/2018. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

OHIO PROPERTIES, LLC.
Plaintiff and
Counterdefendant,
vs.
CITY OF CLEVELAND,
Defendant and
Counterclaimant.

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CASE NO.1:16CV2120
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter comes before the Court upon Defendant City of Cleveland’s Motion for
Summary Judgment (ECF DKT #13) and Plaintiff Ohio Properties, LLC’s Motion for
Summary Judgment (ECF DKT #28). For the following reasons, the Court grants
Defendant’s Motion for Summary Judgment and denies Plaintiff’s Motion for Summary
Judgment.
FACTUAL HISTORY
Plaintiff is engaged in the business of buying and rehabilitating deteriorated properties
to sell or rent. Id. at 5. Plaintiff acquired the property at 6905 Clement Avenue, Cleveland,

Ohio 44105, from the State of Ohio on September 20, 2010. Id. In September 2012,
Defendant provided Plaintiff with a condemnation and demolition order for this property
which provided that the property could be demolished in thirty days if not brought up to code.
(ECF DKT #13 at 4). Plaintiff did not contest the condition of the property. (ECF DKT #28
at 5).
In July 2013, Plaintiff received permits to do the work required by the condemnation
notice. (ECF DKT #13 at 4). The permits were granted for a term of one year. Id. In March
2014, Defendant did a “rough in” inspection of the property and found that Plaintiff was in
partial compliance with only the electrical rehabilitation required by the condemnation notice.
Id. In July 2014, the rehabilitation permits expired and Plaintiff never sought new permits.
Id. In September 2015, the permits were closed as noncompliant. Id.
In September 2015, following the closing of the permits, Defendant sent an asbestos
inspector to the property. Id. Photographs taken by the inspector during the inspection at
6905 Clement Avenue showed that the property was still not habitable. Id. Upon this
finding, Defendant boarded up the house and prepared for demolition. Id. at 5. Plaintiff’s
agents admit that the repairs required by the condemnation notice were not complete at this
time. (ECF DKT #28 at 6). Plaintiff also failed to contact Defendant about the property at
any time following Defendant’s boarding up of the property. Id. at 5. Defendant demolished
the property on October 29, 2015. Id.
In Plaintiff’s Complaint, three counts are alleged, including: (1) deprivation of
property without due process of law in violation of the Fifth and Fourteenth Amendments to
the United States Constitution; (2) taking without just compensation in violation of the Fifth
and Fourteenth Amendments to the United States Constitution; and (3) conversion. Both

Plaintiff and Defendant have filed a Motion for Summary Judgment. (ECF DKT #1, Exhibit
3).
LAW AND ANALYSIS
I. Legal Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that the Court shall grant
summary judgment if the moving party “shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro.
56(a). In asserting that a material fact can or cannot be genuinely disputed, a party must
support that assertion by either citing to materials contained in the record or show that the
materials cited to do or do not create a genuine issue or material fact. Fed. R. Civ. Pro.
56(c)(1). In its consideration of a motion for summary judgment, the Court need only
consider those materials cited in the motion. Fed. R. Civ. Pro. 56(c)(3). The trial court is not
required to search the entire record to establish that a genuine issue of material fact exists.
Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008) (citing Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479-80 (6th Cir. 1989). Further, “if a party fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact as required by
Rule 56(c),” the court may determine that that fact is undisputed. Fed. R. Civ. Pro. 56(e)(2).
II. Plaintiff’s Due Process Claim
Both parties have moved for summary judgment on Plaintiff’s due process claim. In
its Complaint, Plaintiff alleges that Defendant violated its due process rights when it
demolished Plaintiff’s property at 6905 Clement Avenue. In order to be successful in a
procedural due process claim, Plaintiff must establish that it: 1) had a life, liberty or property
interest protected by the Due Process Clause, 2) was deprived of the protected interest and 3)

the state “did not afford him adequate procedural rights.” Daily Servs., LLC v. Valentino, 756
F.3d 893, 904 (6th Cir. 2014) (citing Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611
(6th Cir. 2006)). In cases concerning real property, “due process does not require that a
property owner receive actual notice before the government may take his property.” Jones v.
Flowers, 547 U.S. 220, 226 (2006). The Supreme Court has instead stated that due process
only requires that the government provide “notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co. et.
al., 339 U.S. 306, 314 (1950).
It is undisputed that in September 2012, Defendant notified Plaintiff that its property
at 6905 Clement Avenue was condemned. It is also undisputed that the condemnation notice
allowed Defendant to demolish the property after thirty days if the property was not brought
up to code. Plaintiff admits that the condemnation and demolition notice provided Plaintiff
with the opportunity to appeal but Plaintiff did not do so. Three years later in September
2015, Defendant sent an inspector to the property. Based on the photos taken during the
inspection, Ayonna Donald, the Interim Director of the City of Cleveland Department of
Building and Housing, determined that the structure was not habitable. After making this
determination, Defendant demolished the property on October 29, 2015.
Plaintiff argues, however, that as of September 2015, it had satisfied the requirements
put in place by the Housing Court for this property. Plaintiff’s allegations regarding the
Housing Court are without merit as Plaintiff fails to cite any evidence from the Housing Court
and instead wholly relies on its own unsubstantiated evidence. Plaintiff’s Motion for
Summary Judgment is completely devoid of any documents, orders or records from the

Housing Court. As the trial court is not required to search the record to establish that a
genuine issue of material fact exists, it follows that the Court is not obligated to search
beyond the record for those documents on which Plaintiff relies. Although not obligated to
do so, the Court did in fact search the Housing Court’s docket and was unable to verify
Plaintiff’s representations. Further, Plaintiff fails to allege that compliance with a Housing
Court order would prevent Defendant from making its own determination that the property
was uninhabitable and subsequently demolishing the property. Although Plaintiff discusses
its involvement with the Housing Court at length, it has failed to create a genuine issue of
material fact in doing so.
Plaintiff also alleges that by October 2015, it had spent over $23,000 on rehabilitation
expenses and had rectified about 80-90% of the cited violations on the condemnation and
demolition order. However, Plaintiff again fails to provide the Court with any evidence that it
had spent any money on rehabilitation costs or rectified any of the cited violations in the
condemnation and demolition order. Plaintiff provides nothing to substantiate its claims aside
from its own testimony. Even construing the facts in the light most favorable to Plaintiff,
assuming that 80-90% of the cited violations had been rectified by October 2015, Defendant
still had the right to demolish the house if the violations were not fully abated by Plaintiff
within thirty days of its receiving the initial condemnation and demolition notice. Plaintiff
has also failed to present evidence that 80-90% compliance rendered the house habitable or
safe. Therefore, even if Plaintiff abated 90% of the violations by October 2015, pursuant to
Sections 3103.09, 367.04, 369.19 and 369.12 of the Codified Ordinance of the City of
Cleveland, Defendant had the right to demolish the property at 6905 Clement Avenue upon a
determination that 100% of the violations were not abated within thirty days of the initial

notice. Plaintiff admits that over three years after receiving the initial notice all of violations
were not fully abated and has therefore failed to establish that a genuine issue of material fact
still remains.
As Plaintiff admits that Defendant provided it with a notice of condemnation and
demolition that contained a right to appeal and that it did not fully abate the conditions listed
in the initial notice within thirty days of its receipt, Plaintiff has failed to establish that
Defendant violated its due process rights. Therefore, Defendant is entitled to summary
judgment on Plaintiff’s due process claim.
III. Plaintiff’s Takings Claim
Both parties have moved for summary judgment on Plaintiff’s takings claim. In its
Complaint, Plaintiff alleges that the demolition of the property at 6905 Clement Avenue
constitutes a compensable taking under the United States Constitution. In order to be
successful in its takings claim, Plaintiff must establish that it attempted to obtain
compensation through the established state procedures and was denied such compensation
before bringing its federal takings claim. Macene v. MJW, Inc., 951 F.2d 700, 704 (6th Cir.
1991) (citing Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City,
473 U.S. 172, 192 (1985)). Until a property owner has done so, any federal takings claim is
not ripe. Williamson, 473 U.S. at 194.
In Ohio, a property owner who believes that his property has been taken in the
absence of an appropriate proceeding “may initiate a mandamus action in Ohio court to force
the government actor into the correct appropriation proceeding.” Coles v. Granville, 448 F.3d
853, 861 (6th Cir. 2006). The Sixth Circuit has held that if a property owner fails to request a
mandamus from the state before filing his complaint in federal court, his case is not yet ripe

for review as the federal courts lack jurisdiction to hear the property owner’s takings claim at
that time. Id. at 865.
In the instant case, there is no dispute that Plaintiff was afforded the opportunity to
appeal the condemnation and demolition notice. There is also no dispute that the property at
6905 Clement Avenue was not in full compliance with the condemnation and demolition
notice at the time of demolition. Further, Plaintiff has failed to request mandamus from the
state subsequent to the demolition of the property and before filing its Complaint in this
Court. As such, its case is not yet ripe for review by this Court as this Court lacks jurisdiction
to hear Plaintiff’s case at this time. Therefore, Defendant is entitled to summary judgment on
Plaintiff’s takings claim.
IV. Plaintiff’s Conversion Claim
Both parties have moved for summary judgment on Plaintiff’s conversion claim.
O.R.C. § 2744.02(A)(1) provides:
a political subdivision is not liable in damages in a civil action for
injury, death, or loss to person or property allegedly caused by any act
or omission of the political subdivision or an employee of the political
subdivision in connection with a governmental or proprietary function.
Plaintiff argues that because its conversion claim is rooted in Defendant’s violation of
due process, Defendant is precluded from immunity under O.R.C. § 2744.02(A)(1).
However, as previously stated, Defendant did not violate Plaintiff’s due process rights when it
demolished the property at 6905 Clement Avenue. Because Plaintiff failed to establish that
Defendant violated its due process rights, it follows that Plaintiff cannot sustain a conversion
claim that is rooted in a violation of due process. As Defendant did not violate Plaintiff’s due
process rights in demolishing the property, Defendant is entitled to immunity under O.R.C. §

2744.02(A)(1). Therefore, Defendant is entitled to summary judgment on Plaintiff’s
conversion claim.
V. Defendant’s Counterclaim
Both parties have moved for summary judgment on Defendant’s counterclaim. In its
counterclaim, Defendant is seeking damages for the cost of demolition of the property at 6905
Clement Avenue totaling ten-thousand and eighteen dollars ($10,018.00). Cleveland Codified
Ordinance § 3103.09(k)(1) provides, “any and all expenses or costs . . incurred under this
section relating to the demolition . . . or boarding of a building or structure . . . shall be paid
by the owner of such building or structure.” It is undisputed that Plaintiff was the owner of
the demolished property. Because Defendant demolished the property in compliance with
Cleveland Codified Ordinance § 3103.09 and did not violate Plaintiff’s due process rights in
doing so, Plaintiff must pay the Defendant’s demolition costs. Therefore, Defendant is
entitled to summary judgment on its counterclaim.
CONCLUSION
For all the above-mentioned reasons, the Court GRANTS Defendant’s Motion for
Summary Judgment on its counterclaim in the amount of ten-thousand and eighteen dollars
($10,018), DISMISSES Plaintiff’s takings claim without prejudice subject to Plaintiff
exhausting its state administrative procedures and DISMISSES Plaintiff’s due process and
conversion claims with prejudice.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 22, 2018