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City of Cleveland v. Lewis

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 24, 2017

CITY OF CLEVELAND PLAINTIFF-APPELLEE
v.
KENNETH LEWIS DEFENDANT-APPELLANT

         Civil Appeal from the Cleveland Municipal Court Housing Division Case No. 2015 CVH 11782

          ATTORNEY FOR APPELLANT Douglas P. Whipple Whipple Law L.L.C.

          ATTORNEYS FOR APPELLEE Sandra A. Prebil Sean F. Berney David M. Douglass Thomas A. Marino Douglass & Associates Co., L.P.A.

          BEFORE: McCormack, P.J., Laster Mays, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, PRESIDING JUDGE.

         {¶1} Kenneth Lewis ("appellant") appeals from a judgment of the Housing Division of Cleveland Municipal Court that granted summary judgment in favor of the city of Cleveland relating to a nuisance abatement matter. For the following reasons, we affirm the housing court's judgment.

         Background

         {¶2} A two-family rental property located at 9807 Adams Avenue, Cleveland, had caught fire. On October 23, 2008, city of Cleveland Inspector Camille Smith inspected the rental property and determined the condition of the structure constituted a public nuisance. On November 7, 2008, the city issued a notice of violation designated as "30 Day Condemnation" to the owner. The notice listed each housing code violation, gave the owner 30 days to correct the violations, and also advised the owner of a right to appeal the notice.

         {¶3} On November 17, 2008, the city mailed the notice of violation by certified mail to 15738 Fenemore Rd., East Cleveland, which is appellant's tax mailing address and residential address as well. The certified mail was returned with an "unclaimed" notation. The city then posted the "30 Day Condemnation" notice at the front door of the residential structure. The city never heard from the owner, and the property remained in a state of disrepair for nine months. On August 13, 2009, the city demolished the structure. Appellant neither appealed the condemnation notice nor challenged the demolition of his property.

         {¶4} Six years later, on August 11, 2015, the city filed a complaint in the housing court against appellant to collect the demolition cost of $6, 700, administrative cost of $732, and attorney/collection fees of $2, 080.96. The city subsequently moved for summary judgment. The trial court granted summary judgment in favor of the city, awarding it $9, 513.00 plus interest.

         {¶5} On appeal, appellant-defendant raises three assignments of error:

1. The trial court erred in granting summary judgment, because Plaintiff failed to give notice to Defendant as required by [Cleveland Codified Ordinances ("C.C.O.")] 367.05, "Noncompliance With Notice."
2. The trial court erred in relying on "Exhibit b" in support of its Order granting summary judgment.
3. The trial court erred in granting summary judgment, because Plaintiff failed to give notice to Defendant as required by C.C.O. 367.04, "Notice of Violation."

         {¶6} Summary judgment is appropriate when: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the nonmoving party. Civ.R. 56(C). We review the trial court's judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

         Notice

         {¶7} The main question presented in this appeal is whether the city provided proper notice pursuant to the city's housing and building code to appellant before demolishing the condemned structure. Under the first assignment of error, appellant claims the city was required to send him two separate notices.

         {¶8} In granting summary judgment in favor of the city, the trial court held that a single notice to the owner of a condemned structure is sufficient before demolition. Upon a review of the pertinent sections from the city's housing and building code, we agree with the trial court.

         {¶9} The record reflects that on October 23, 2008, the city's Department of Building and Housing inspected the two-family residential structure owned by appellant and found 25 code violations. The structure was deemed to have created an imminent danger to human life and public health, safety, and welfare, and was declared a public nuisance by the Director of Building and Housing. On November 7, 2008, the Department issued a notice of violation designated as "30 Day Condemnation" regarding the property.

         {¶10} The notice requirement for demolishing a structure declared to be a public nuisance is set forth in C.C.O. 367.05(c):

Whenever the Commissioner has made the determination that a dwelling structure or premises constitutes a public nuisance in that the structure or premises is injurious to the public health, safety and welfare, and the owner, agent or person in charge of such structure fails, neglects or refuses to comply with a notice of violation ordering such structure to be demolished or boarded, or the violations corrected, the Commissioner may take necessary action to demolish or effectively board such structure in accordance with the procedure and requirements set forth in Section 3103.09 or take such other action as may be necessary to abate the nuisance. The Commissioner shall give written notice in conformance with the procedures set forth in this Housing Code for the service of notice of violation informing the owner or agent, ...

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