Mitchell v. Mansfield

2021 Ohio 2421

• Court: Ohio Court of Appeals
• Decided: July 14, 2021
• Docket: 2020 CA 0067
• Status: Published

Opinion

[Cite as Mitchell v. Mansfield, 2021-Ohio-2421.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JOYCE MITCHELL : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : CITY OF MANSFIELD : Case No. 2020 CA 0067 : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2018 CV 0452

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 14, 2021

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

BRYAN D. THOMAS GREGORY A. BECK 490 City Park Avenue TONYA J. ROGERS Columbus, OH 43215 400 South Main Street North Canton, OH 44720 BRIAN K. DUNCAN 119 East Granville Street CHRISTOPHER L. BROWN Sunbury, OH 43074 30 North Diamond Street Mansfield, OH 44902 Richland County, Case No. 2020 CA 0067 2

Wise, Earle, J.

{¶ 1} Plaintiff-Appellant, Joyce Mitchell, appeals the September 29, 2020 order

of the Court of Common Pleas of Richland County, Ohio, granting summary judgment to

Defendant-Appellee, City of Mansfield.

FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellant owns a property located on Fourth Street in Mansfield, Ohio. The

property contained a residential structure described as a seven-unit apartment complex,

but the structure had not been occupied since 2009. In 2016, appellee received

complaints about the structure being a nuisance.

{¶ 3} In January 2017, with appellant's permission, appellee conducted an

inspection of the structure. The inspection resulted in deeming the structure unsafe as it

was a nuisance, abandoned, and posed an imminent threat to the health and safety of

the surrounding neighborhood. The structure was ordered to be demolished. This

determination was memorialized in a January 23, 2017 letter and notice sent to appellant.

The notice included information on how to appeal the demolition order within 10 days.

Appellant was told to immediately remove her personal property from the structure.

{¶ 4} On January 27, 2017, appellant filed an appeal with the Mansfield Certified

Building Division, but did not pay the filing fee as required. On February 15, 2017, after

the ten-day appeal deadline had passed, appellant filed an application with the city

planning commission requesting a hearing and paid the required fee. A hearing was held

on February 28, 2017. At the hearing, appellant did not object to the demolition order,

but requested that it fall "within the guidelines of the Constitution of the United States, and

the Bill of Rights, and specifically the Fifth Amendment and the Fourteenth Amendment."

She also requested time to retrieve her personal property from the structure. Appellant Richland County, Case No. 2020 CA 0067 3

was informed the demolition would proceed and was granted additional time to remove

her personal property. Via letter dated March 28, 2017, appellant was noticed she had

until June 10, 2017 to remove her personal property. Appellant failed to do so.

{¶ 5} In October 2017, appellant filed a complaint against appellee requesting in

part an injunction. The complaint was voluntarily dismissed in April 2018.

{¶ 6} On June 19, 2018, appellee passed a resolution to demolish the structure.

{¶ 7} On July 5, 2018, appellant filed a complaint against appellee, again

requesting in part an injunction, but did not take any further action to obtain the injunction

to prevent the demolition. The structure was demolished over a year later in August 2019.

Thereafter, on November 22, 2019, appellant filed an amended complaint seeking a writ

of mandamus for unlawful taking, a temporary restraining order/preliminary injunction,

and declaratory judgment. She also claimed 1983 violations of the Fifth Amendment,

public policy violations, conversion, unjust enrichment, detrimental reliance, unlawful

taking/regulatory taking, and inverse condemnation.

{¶ 8} On June 15, 2020, appellee filed a motion for summary judgment, claiming

appellant failed to exhaust her administrative remedies, immunity, and genuine issues of

material fact did not exist regarding her claims. By order filed September 29, 2020, the

trial court granted the motion, finding no genuine issues of material fact to exist and

appellant did not object to or raise any issue with the law cited by appellee.

{¶ 9} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 10} "THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION

FOR SUMMARY JUDGMENT BECAUSE THERE WERE GENUINE ISSUES OF Richland County, Case No. 2020 CA 0067 4

MATERIAL FACT AS TO DEFENDANT'S COMPLYING WITH THE OHIO REVISED

CODE AND/OR THE MANSFIELD CODIFIED ORDINANCES."

II

{¶ 11} "THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION

FOR SUMMARY JUDGMENT BECAUSE THERE WERE GENUINE ISSUES OF

MATERIAL FACT AS TO DEFENDANT'S IDENTIFICATION OF A PROPERTY AS A

NUISANCE."

III

{¶ 12} "THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION

MATERIAL FACT AS TO DEFENDANT'S OBLIGATION TO PROVIDE A SECOND

NOTICE OF THE DEMOLITION DATE."

IV

{¶ 13} "THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO

VIOLATION OF PLAINTIFF'S DUE PROCESS RIGHTS."

V

{¶ 14} "THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT WAS

ENTITLED TO JUDGMENT AS A MATTER OF LAW."

{¶ 15} The assignments of error challenge the trial court's order to grant summary

judgment to appellee. Summary Judgment motions are to be resolved in light of the

dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex

rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996): Richland County, Case No. 2020 CA 0067 5

Civ.R. 56(C) provides that before summary judgment may be

granted, it must be determined that (1) no genuine issue as to any material

fact remains to be litigated, (2) the moving party is entitled to judgment as

a matter of law, and (3) it appears from the evidence that reasonable minds

can come to but one conclusion, and viewing such evidence most strongly

in favor of the nonmoving party, that conclusion is adverse to the party

against whom the motion for summary judgment is made. State ex. rel.

Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d

466, 472, 364 N.E.2d 267, 274.

{¶ 16} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

{¶ 17} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13:

It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial.

Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986). The standard for granting summary judgment is

delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party

seeking summary judgment, on the ground that the nonmoving party cannot Richland County, Case No. 2020 CA 0067 6

prove its case, bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate

the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its

initial burden under Civ.R. 56 simply by making a conclusory assertion the

nonmoving party has no evidence to prove its case. Rather, the moving

party must be able to specifically point to some evidence of the type listed

in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

no evidence to support the nonmoving party's claims. If the moving party

fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the

nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

set forth specific facts showing there is a genuine issue for trial and, if the

nonmovant does not so respond, summary judgment, if appropriate, shall

be entered against the nonmoving party." The record on summary

judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.

{¶ 18} Attached to appellee's motion for summary judgment were numerous

authenticated exhibits. Also, six depositions were filed in support of the motion. Appellant

filed a response with nothing attached. Richland County, Case No. 2020 CA 0067 7

I, III, IV

{¶ 19} In her first assignment of error, appellant claims the trial court erred in

granting summary judgment to appellee because genuine issues of material fact existed

as to appellee's compliance with the applicable statutes and ordinances.

{¶ 20} In her third assignment of error, appellant claims the trial court erred in

granting summary judgment to appellee because genuine issues of material fact existed

as to appellee's obligation to provide a second notice of the demolition date.

{¶ 21} In her fourth assignment of error, appellant claims the trial court erred in

finding there was no violation of her due process rights.

{¶ 22} We disagree with all three arguments.

{¶ 23} In her appellate brief at 3-4, appellant argues the following:

Defendant's failure to comply with the Ohio Revised Code and/or the

Mansfield Codified Ordinances has caused a denial of Plaintiff's Due

Process rights, and the genuine issues raised by Plaintiff as to whether

Defendant complied with applicable statutes should have precluded

summary judgment. The Trial Court incorrectly concludes that Plaintiff did

not oppose the demolition, but fails to note the evidence proffered by

Plaintiff contradicting this statement. When properly construed in favor of

Plaintiff as the non-movant, there are genuine issues of fact whether

Defendant appropriately resolved Plaintiff's administrative appeal in

accordance with Ohio Revised Code and/or the Mansfield Codified

Ordinances. Richland County, Case No. 2020 CA 0067 8

{¶ 24} In her appellate brief at 6, appellant argues the following:

The Trial Court record demonstrates that Defendant did not afford

Plaintiff sufficient due process by failing to provide a second notice of a

demolition date. As the evidence and testimony in the record shows,

Defendant was aware of Plaintiff's pending claims and was notified that she

was appealing the initial decision. When viewed in favor of Plaintiff, her

statements and notices issued to Defendant constitute a request for appeal.

Pursuant to Ohio law, due process required that Defendant issue

appropriate notice prior to its actions of depriving Plaintiff of her property.

{¶ 25} In her appellate brief at 7, appellant argues the following:

The Trial Court record shows that Plaintiff had appealed the

administrative decision, and that Defendant was aware of her pending

claims regarding the same. Nonetheless, Defendant proceeded with the

demolition process without properly notifying Plaintiff of the same, nor

affording Plaintiff with an opportunity for a pre-deprivation hearing. The Trial

Court record, when viewed in favor of Plaintiff as non-movant, contains

numerous issues of material fact regarding deficiencies in notice, lack of a

hearing, and/or violations of Ohio or Mansfield which amount to a failure to

satisfy due process requirements. Richland County, Case No. 2020 CA 0067 9

{¶ 26} Appellant does not identify which statutes and ordinances were violated

regarding her due process rights and/or in general, and does not identify what proffered

evidence contradicted the finding that she opposed the demolition. She does not cite to

any statute or ordinance that requires a second notice of a demolition date. The

arguments cited above are merely blanket arguments without citation to anything in the

record to support the existence of genuine issues of material fact on the complained of

issues.

{¶ 27} The statutes and ordinances that come into play in this case are found in

the Ohio Revised Code under R.C. Chapter 715 and Part Thirteen of the Codified

Ordinances of Mansfield, Ohio. In its September 29, 2020 order granting summary

judgment, the trial court analyzed the applicable statutes and ordinances and found the

notice and demolition order "complied with the due process requirements" and appellant

was "granted a hearing even though she did not file her completed appeal in the time

required under the Ordinance."

{¶ 28} Our review of the applicable statutes and ordinances as well as the exhibits

attached to appellee's motion for summary judgment and the filed depositions confirms

the trial court's findings. Appellant was properly noticed of the demolition order and the

inspection deeming the structure to be unsafe and declaring it to be a nuisance and

abandoned, the notice contained information about her right to appeal, she improperly

filed her appeal yet was afforded a hearing on February 28, 2017, she specifically stated

she did not object to the demolition order as she merely wanted more time to retrieve her

personal property from the structure, and she agreed as a "sovereign citizen" she did not

accept the laws adopted by the city. Mitchell depo. at 11-14, 26, 28-32; Rice, Jr. depo.

at 20-22, 23-24; Spon depo. at 12, 18, 23; Donaldson depo. at 10-11; Exhibits 1, 2, and Richland County, Case No. 2020 CA 0067 10

4 attached to Defendant's June 15, 2020 Motion for Summary Judgment. By letter dated

March 28, 2017, appellant was granted additional time to remove her personal property

until June 10, 2017, and in a letter addressed to appellant's counsel dated August 21,

2017, appellee informed appellant the demolition was to proceed "in the near future" and

advised her to "immediately remove all personal property from the structure." Rice, Jr.

depo. at 32; Spon depo. at 14; Exhibits 7 and 9 attached to Defendant's June 15, 2020

Motion for Summary Judgment. Appellant admitted to receiving all notices and letters.

Mitchell depo. at 11-13, 29-32.

{¶ 29} The structure was not demolished until August 2019. We find appellant

received appropriate notice, was afforded a hearing, and was granted sufficient time to

retrieve her personal property.

{¶ 30} Upon review, we do not find genuine issues of material fact existed as to

appellee's compliance with the applicable statutes and ordinances, appellee's obligation

to provide a second notice of the demolition date, and any denial of appellant's due

process rights.

{¶ 31} Assignments of Error I, III, and IV are denied.

{¶ 32} In her second assignment of error, appellant claims the trial court erred in

granting summary judgment to appellee because genuine issues of material fact existed

as to appellee's identification of a property as a nuisance. We disagree.

{¶ 33} In her appellate brief at 5, appellant argues the following:

In light of the foregoing, the Trial Court erred in granting summary

judgment in favor of Defendants as Plaintiff's claims for "wrongful Richland County, Case No. 2020 CA 0067 11

demolition" arise from an unreasonable exercise of the City of Mansfield's

nuisance abatement powers. Contrary to the analysis of the Trial Court,

Plaintiff is entitled to just compensation for the demolition of her property

when she can show that Defendant's (sic) acted arbitrarily or unreasonably.

{¶ 34} Again, appellant makes a blanket argument without citation to anything in

the record to support the existence of genuine issues of material fact on the complained

of issue. Appellant does not elaborate on how appellee unreasonably exercised its

nuisance abatement powers and/or acted arbitrarily or unreasonably.

{¶ 35} R.C. Chapter 715 grants general powers to municipal corporations. R.C.

715.26 through 715.30 grants powers related to buildings and construction. Under R.C.

715.26, any municipal corporation may:

(A) Regulate the erection of buildings or other structures and the

sanitary condition thereof, the repair of, alteration in, and addition to

buildings or other structures;

(B) Provide for the inspection of buildings or other structures and for

the removal and repair of insecure, unsafe, or structurally defective

buildings or other structures under this section or section 715.261 of the

Revised Code.

{¶ 36} R.C. 715.261 entitles municipal corporations to collect the costs of

abatement activities which includes "[r]emoving, repairing, or securing insecure, unsafe,

structurally defective, abandoned, deserted, or open and vacant buildings or other Richland County, Case No. 2020 CA 0067 12

structures" and "[a]batement of any nuisance by a municipal corporation or its agent

pursuant to division (E) of this section." R.C. 715.26(B) codifies the due process and

notice requirements needed for "the removal and repair of insecure, unsafe, or structurally

defective buildings or other structures under this section or section 715.261 of the

Revised Code." Appellee's building code ordinances can be found at Part Thirteen of the

Codified Ordinances of Mansfield, Ohio.

{¶ 37} Appellee followed all the applicable statutes and ordinances. Appellant's

property was not "taken" as she still owns the property. The structure on the property

was demolished after being deemed unsafe and declared a nuisance and abandoned. At

no point during the administrative process did appellant argue against the findings of

"unsafe," "nuisance," and "abandoned," nor did she contest the demolition order.

{¶ 38} As properly noted by the trial court in its September 29, 2020 order:

The Supreme Court of the United States has held in a long line of

cases that the State's use of its "police powers" to abate a nuisance is not

a Takings Clause violation. [See Lucas v. S.C. Costal Council, 505 U.S.

1003, 1022, 112 S.Ct. 2886, 120 L.Ed.2d 798.] There was no taking

therefore, the Plaintiff has no right to "just compensation."

{¶ 39} Upon review, we do not find genuine issues of material fact existed as to

appellee's identification of a property as a nuisance.

{¶ 40} Assignment of Error II is denied. Richland County, Case No. 2020 CA 0067 13

{¶ 41} In her fifth assignment of error, appellant claims the trial court erred in

finding appellee was entitled to judgment as a matter of law. We disagree.

{¶ 42} In her appellate brief at 7-8, appellant argues the following:

The Trial Court record reflects genuine issues of fact as to whether

Plaintiff appealed the demolition, whether the City properly held a hearing

on the same, whether the City issued appropriate notice prior to demolishing

Plaintiff's property. In light of these issues, Defendant's Motion for

Summary Judgment should have been denied in its entirety * * *.

{¶ 43} Appellee has demonstrated no issues of material fact to exist regarding the

stated issues. Appellee sent appropriate notice and afforded appellant a hearing even

though she failed to properly appeal the demolition order. Appellee granted appellant

extra time to retrieve her personal property from the structure, but she chose not to do

so. Appellant never pursued an injunction to stop the demolition which occurred over two

years after the demolition order was issued. Appellant has not met her reciprocal burden

to set forth specific facts showing there is a genuine issue for trial.

{¶ 44} Upon review, we find the trial court did not err in granting summary judgment

to appellee.

{¶ 45} Assignment of Error V is denied. Richland County, Case No. 2020 CA 0067 14

{¶ 46} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Delaney, J. concur.

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