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Graf v. City of Nelsonville

Court of Appeals of Ohio, Fourth District, Athens

June 10, 2019

BYRON GRAF II, Plaintiff-Appellant,
v.
CITY OF NELSONVILLE, et al., Defendants-Appellees.

          CIVIL CASE FROM COMMON PLEAS COURT

          Kenneth E. Ryan, Athens, Ohio for appellant.

          Mark Landes and Molly R. Gwin, Columbus, Ohio, for appellees.

          DECISION & JUDGMENT ENTRY

          Peter B. Abele, Judge

         {¶ 1} This is an appeal from an Athens County Common Pleas Court summary judgment in favor of several Nelsonville city employees, defendants below and appellees herein.[1] The trial court determined that appellees are entitled to statutory immunity for the claims asserted by Byron Graf, plaintiff below and appellant herein.

          {¶ 2} Appellant assigns the following error for review:

"THE TRIAL COURT ERRORED [SIC] BY FINDING THAT NO GENUINE ISSUE OF MATERIAL FACT EXISTED WITH RESPECT TO APPELLANT'S CLAIMS AND GRANTING SUMMARY JUDGMENT FOR APPELLEES WITHOUT A HEARING."

         {¶ 3} The present case arises out of a dispute between appellant and the city regarding appellant's use of property located on the site of a former drive-thru and carry-out facility. After appellant purchased the property, city employees expressed concern that appellant was not complying with state building codes and Nelsonville City Code provisions. Eventually, the city condemned the property. Once appellant became compliant, the city lifted the condemnation order.

         {¶ 4} Approximately three years later, appellant filed a pro se complaint against the city and multiple city employees, including police officers, council members, city manager, fire chief, city prosecutor and members of the planning commission. Appellant levied a laundry list of charges against appellees, but in essence, alleged that appellees engaged in a pattern of behavior designed to frustrate his use of the property and to cause the property's condemnation.

         {¶ 5} All defendants filed a motion for judgment on the pleadings. The trial court granted the motion with respect to all defendants, except for these appellees. Appellees later filed a summary judgment motion and claimed that they are entitled to R.C. 2744.06(A)(6) statutory immunity for the following reasons: (1) they did not act outside the scope of their employment or official responsibilities; (2) they did not act with malicious purpose, in bad faith, or in a wanton or reckless manner; and (3) civil liability is not expressly imposed upon them by another Revised Code section.

         {¶ 6} Appellees claimed that Fire Chief Barber is responsible for conducting fire safety inspections for new construction and for existing buildings and structures. Appellees asserted that Chief Barber thrice attempted to obtain consent to enter appellant's property, but appellant told Barber that Barber would need a warrant. Appellees stated that Barber then obtained a warrant, and inspected the property and found code violations. Appellees argued that none of Barber's activities fell outside the scope of his employment or were undertaken with malicious purpose, in bad faith, or in a wanton or reckless manner. They further alleged that no other Revised Code provision expressly imposed liability upon Barber.

         {¶ 7} Appellees also asserted that Director of Code Enforcement and Assistant City Manager Steve Pierson handles code enforcement and compliance and that Pierson's job is to advise the City Manager and to enforce compliance and permitting. Appellees stated that after appellant purchased the property, Pierson noted construction work occurring, particularly the presence of four electrical meters on the side of the building. Appellees alleged that Pierson became concerned that appellant had violated the state building code. Pierson later sent a letter to appellant to advise him, that within fourteen days he needed to obtain an application for a conditional use permit and an application for a flood hazard development permit. Pierson, however, did not receive a completed application.

         {¶ 8} Appellees asserted that Pierson continued to notice work on the property and, as a result of appellant's continued non-compliance, Pierson, Chief Barber, and the State of Ohio Building Department went to the property to execute an administrative search warrant. The property subsequently was condemned.

         {¶ 9} Appellees claimed that on July 1, 2014, appellant applied for the necessary permits and that the permits were issued the next day. Appellees indicated that after appellant obtained the necessary permits, the city lifted the condemnation order. Appellees argued that all of Pierson's actions fell within the scope of his employment and were not taken with malicious purpose, in bad faith, or in a wanton or reckless manner.

         {¶ 10} Appellees further asserted that all of City Manager Mark Hall's actions fell within the scope of his employment and were not taken with malicious purpose, in bad faith, or in a wanton or reckless manner. Appellees alleged that Hall's involvement in the matter was minimal-that he only monitored the condemnation proceedings and signed the condemnation order. Appellees further asserted that Hall communicated with appellant on one occasion-when appellant contacted Hall to obtain additional water taps.

         {¶ 11} Appellees likewise argued that all of City Prosecutor Rick Hedges's actions fell within the scope of his employment and were not taken with malicious purpose, in bad faith, or in a wanton or reckless manner. Appellees claimed that Hedges acted in his capacity as city prosecutor and was involved in the Mayor's Court proceedings. Appellees additionally asserted that Hedges is entitled to prosecutorial immunity.

         {¶ 12} Appellees also argued that neither the Chief of Police nor Officer Vancurren engaged in any conduct outside the scope of their employment, or conduct that could be construed as malicious, in bad faith, or wanton or reckless

         {¶ 13} To support their motion, appellees produced several affidavits. Pierson averred that in April 2013, he noticed construction work occurring on appellant's property and observed four electrical meters on the side of the building. Pierson stated that he had a concern that appellant's construction violated the building code and contacted the State Building Department. Pierson indicated that in September 2013, he sent appellant a certified letter that notified appellant that appellant was not in compliance with various Nelsonville City Code provisions. The letter further notified appellant that he should complete the Application for Conditional Use Permit and Application for flood hazard development permit within fourteen days. Pierson stated that he did not receive a completed application and that appellant continued construction on the property. Pierson explained that he then filed a complaint in Mayor's Court due to the alleged code violations. Later, the case was dismissed.

         {¶ 14} Pierson stated that on November 1, 2013, Fire Chief Barber obtained an administrative search warrant to search appellant's property and that Pierson accompanied Barber. Pierson explained that on November 6, 2013, a condemnation order was issued. Pierson stated that in July 2014, appellant applied for flood hazard and zoning permits. Pierson averred that shortly after the permits were granted, the condemnation order was removed.

         {¶ 15} In his affidavit, Barber stated that in October 2013, he noted that the property appellant purchased had "undergone significant interior construction." Barber indicated that he had received verbal complaints from Pierson and a city police officer and had reason to believe that appellant had violated building codes. Barber explained that he attempted to discuss the matter with appellant and to obtain appellant's consent to inspect the property, but appellant advised Barber that he could not enter the property without a warrant. Barber stated that he then obtained an administrative search warrant.

         {¶ 16} Barber averred that on November 1, 2013 he served the administrative search warrant and, accompanied by the State Fire Marshall, the Department of Industrial Compliance, and the Nelsonville Code Compliance Officer, he observed many code violations during the search. Barber indicated that appellant continued to work on the property "despite repeat requests to cease and desist." Barber also asserted that he believed that the code violations posed a threat to the lives and safety of the tenants and recommended that the city begin condemnation proceedings.

         {¶ 17} City Manager Mark Hall stated that in October 2013, Barber and Pierson advised him of their concerns regarding appellant's property. Hall explained that "[w]hen it became necessary to condemn the Property, [he] signed the condemnation order as part of my job duties as the City Manager." Hall indicated that the only communication he had with appellant concerned appellant's request for the cost of additional tap fees.

         {¶ 18} In his affidavit, Richard Hedges stated that a complaint was filed against appellant for violating provisions of the Nelsonville City Code. Hedges explained that appellant was summoned to appear in Mayor's Court and that the case eventually was dismissed.

         {¶ 19} In his memorandum in opposition, appellant asserted that genuine issues of material fact remain for resolution at trial regarding whether appellees acted outside the scope of their official duties, or were undertaken with malicious purpose, in bad faith, or in a wanton or reckless manner.

         {¶ 20} Specifically, appellant claimed that genuine issues of material fact remain regarding Pierson's conduct for the following reasons. On July 14, 2015, Pierson sent appellant a "notice of violation." The notice advised appellant of the Nelsonville City Code provisions regarding abandoned, inoperable, and unlicensed motor vehicles. Appellant claimed that Pierson knew that the subject vehicle did not belong to appellant and that Pierson sent the notice of violation as a means of intimidating or threatening appellant. Appellant asserted: "This is one of dozens and dozens of instances that [appellant] will bring into open court to prove by a preponderance of evidence that Mr. Pierson's acts were acts or omissions that were with malicious purpose, in bad faith, or in a wanton or reckless manner."

         {¶ 21} Appellant also alleged that Pierson's conduct regarding the construction work shows that Pierson acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Appellant pointed to Pierson's affidavit in which he states that he noticed the alleged violations in April 2013 and contacted the State Building Department. Appellant asserted that Pierson's statement implies that he contacted the State Building Department shortly after he observed the alleged violations. Appellant suggests, however, that Pierson did not actually contact the State Building ...


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