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Ohio Properties, LLC v. City of Cleveland

United States District Court, N.D. Ohio, Eastern Division

March 22, 2018

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

          OPINION AND ORDER

          CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.

         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 ...


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