[Cite as Nicholson v. Youngstown, 2025-Ohio-1915.]
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY
MATTHEW J. NICHOLSON,
Plaintiff-Appellant,
v.
CITY OF YOUNGSTOWN, OHIO ET AL.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY Case No. 24 MA 0099
Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2024 CV 00679
BEFORE: Cheryl L. Waite, Carol Ann Robb, Katelyn Dickey, Judges.
JUDGMENT: Affirmed in part. Reversed and Remanded in part.
Atty. Matthew C. Giannini and Atty. Jennifer Boyle Beck, for Plaintiff-Appellant
Atty. Lori Shells Simmons, Director of Law, City of Youngstown, and Atty. James Vivo, First Assistant Law Director, for Defendants-Appellees
Dated: May 23, 2025 –2–
WAITE, J.
{¶1} Appellant Matthew J. Nicholson filed a complaint against the City of
Youngstown for demolishing a house he owned without giving him notice of the demolition
order or any prior indication that there were problems or code violations regarding the
property. Appellees responded that no notice was required because the Youngstown Fire
Chief declared the demolition to be necessary due to an emergency. They also argued
that they were not liable on grounds of political subdivision immunity and because
Appellant failed to plead a procedural due process claim. The parties filed competing
motions for summary judgment, and the trial court awarded judgment to Appellees.
Appellees failed to timely respond to this appeal. As Appellant's complaint does include
a due process claim and Appellant pleaded facts to indicate there was no emergency
justifying the demotion, the record reveals that questions of material fact exist. Complete
summary judgment was not warranted in this matter. The judgment of the trial court is
reversed as to count two of the complaint, and the case is remanded for further
proceedings.
Facts and Procedural History
{¶2} On April 5, 2024 Appellant filed a complaint in the Mahoning County Court
of Common Pleas alleging that Appellees illegally demolished his house located at 125
Clarencedale Avenue, Youngstown. The defendants included the City of Youngstown,
the mayor, the Department of Public Works, and the Department of Property Code
Enforcement and Demolition. Appellant alleged he became the owner of 125
Clarencedale Avenue by quit claim deed dated October 14, 2020. The property was
continually under a lease during his ownership, and his tenant had not given him any
Case No. 24 MA 0099 –3–
indication that there were problems or defects regarding the property. Appellant's
complaint alleged that on August 23, 2021, the Fire Chief of the City of Youngstown
issued a demolition order for the property. The house was demolished on September 20,
2021. Appellant’s complaint contained five claims: (1) taking property without just
compensation; (2) denial of due process of law; (3) negligence; (4) conversion; and (5)
trespass. He requested damages in excess of $300,000, costs, and interest.
{¶3} The case was submitted to a magistrate. The parties unanimously
consented to the magistrate presiding over a jury trial.
{¶4} Appellees filed an answer and counterclaim on April 17, 2024. Appellees
admitted they knew or should have known that Appellant was the owner of the property.
They admitted they issued a permit for demolition on August 23, 2021. They admitted
the demolition documents did not mention that Appellant was the owner. Appellees’
counterclaim sought demolition expenses in the amount of $7,038.05.
{¶5} Appellees filed a motion for summary judgment on July 2, 2024.
{¶6} Appellant filed his own motion for summary judgment and answer to the
counterclaim on July 19, 2024. He separately filed his personal affidavit asserting that
the house was in good condition, there had been a tenant occupying the house since
2019, Appellees had not issued any prior notices of violation of the city codes, the house
was demolished without a reasonable basis, and that the City gave him no notice prior to
the demolition.
{¶7} On September 20, 2024 Appellees filed a copy of an order from the
Youngstown Fire Chief, dated August 23, 2021, ordering emergency demolition of the
house. They also filed an invoice for demolition costs in the amount of $7,038.05. This
Case No. 24 MA 0099 –4–
invoice is dated September 20, 2021, which appears to be the date the house was
demolished. Conspicuously absent, however, was any evidence to support the Fire
Chief’s emergency order.
{¶8} On September 30, 2024 the magistrate issued an order overruling
Appellant's motion for summary judgment and granting Appellees' motion for summary
judgment. Also on September 30, 2024, the trial court issued its final judgment adopting
the magistrate's order. Appellant filed objections to the magistrate's order on October 15,
2024. On October 24, 2024, the magistrate issued an order stating that as the parties
had consented to the jurisdiction of the magistrate over all matters in the case, objections
were not permitted under Civ.R. 53(C)(2). This timely appeal followed on October 28,
2024.
{¶9} Appellant has raised a single assignment of error. Appellees did not file a
timely brief in this appeal. Appellees did file a brief after both the briefing period had
expired, as well as the expiration of an extension we granted sua sponte. Hence, that
brief will not be considered on appeal. (4/7/25 Order). Under Civ.R. 18(C), we "may
accept the appellant's statement of the facts and issues as correct and reverse the
judgment if appellant's brief reasonably appears to sustain such action."
Summary Judgment Standard of Review
{¶10} An appellate court conducts a de novo review of a trial court's decision to
grant summary judgment, using the same standards as the trial court set forth in Civ.R.
56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Before summary
judgment can be granted, the trial court must determine that: (1) no genuine issue as to
any material fact remains to be litigated, (2) the moving party is entitled to judgment as a
Case No. 24 MA 0099 –5–
matter of law, (3) it appears from the evidence that reasonable minds can come to but
one conclusion, and viewing the evidence most favorably in favor of the party against
whom the motion for summary judgment is made, the conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). Whether a fact is “material”
depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc.,
Inc., 104 Ohio App.3d 598, 603 (8th Dist. 1995).
{¶11} “[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving party's
claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296 (1996). If the
moving party carries its burden, the nonmoving party has a reciprocal burden of setting
forth specific facts showing that there is a genuine issue for trial. Id. at 293. In other
words, when presented with a properly supported motion for summary judgment, the
nonmoving party must produce some evidence to suggest that a reasonable factfinder
could rule in that party's favor. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378,
386 (8th Dist. 1997).
{¶12} The evidentiary materials to support a motion for summary judgment are
listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact that
have been filed in the case. In resolving the motion, the court views the evidence in a light
most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327.
Case No. 24 MA 0099 –6–
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL
FACT REMAIN, REQUIRING RESOLUTION BY THE TRIER OF FACT.
{¶13} Appellant’s complaint sought to recover compensation from the City of
Youngstown for demolishing a house that he owned. A tenant had been continuously
occupying the property and Appellant had not received any complaints from the tenant
that there were problems with the property or that repair or maintenance was necessary.
Appellant contends that Appellees failed to notify him of any problems with the house or
that the property was in violation of any Youngstown codes or ordinances, and they failed
to give him prior notice that the house was scheduled for demolition. Appellant argues
that unless there was proof of an actual emergency that required immediate demolition,
Appellees were required to give him notice and opportunity to mitigate any problems.
There is no dispute that Appellees demolished the house without notifying Appellant.
Appellant contends that the demolition was an unconstitutional "taking without just
compensation" under the Ohio and Federal Constitutions, and that Appellees deprived
him of his constitutional right to procedural due process.
{¶14} Appellees admitted they knew or should have known that Appellant was the
owner of the property. In their trial court documents they argued that prior notice was
unnecessary because the Fire Chief declared that the house was a public health hazard,
that it created an immediate threat to public health and safety, and as such, its condition
Case No. 24 MA 0099 –7–
constituted an emergency. They cited Youngstown Codified Ordinance 1525.01(c) that
allows the Fire Chief to order the demolition of any unsafe structure in case of an
emergency. They also cited Youngstown Codified Ordinance 1309.04, stating that
emergency demolitions require no prior notice to the property owner. They submitted no
evidence in support of the alleged emergency.
{¶15} Appellees also argued they were immune from any tort claims raised by
Appellant by virtue of the governmental immunity statute, R.C. 2744.01 et seq. R.C.
2744.02(A)(1) relieves a political subdivision from liability for injury or loss caused by an
act or omission in connection with a governmental or proprietary function. Lawson v.
Mahoning Cnty. Mental Health Bd., 2010-Ohio-6389, ¶ 20 (7th Dist.). Appellant takes
issue with the trial court’s decision to bar all five of the counts in his complaint on grounds
of governmental immunity. Appellant does not challenge the trial court's conclusion that
his claims for negligence, conversion, and trespass were barred by governmental
immunity. Appellant focuses, however, on the first two counts of his complaint: unlawful
taking without compensation, and violation of procedural due process. Appellant
contends that the unlawful demolition of a house implicates both of these constitutional
provisions, and that R.C. 2744.09(E) provides an exception to governmental immunity for
these claims.
{¶16} Since the enactment of R.C. 2744.01 et seq., plaintiffs have generally been
prevented from bringing wrongful demolition tort claims under Ohio state law due to
political subdivision immunity. Englewood v. Turner, 2008-Ohio-4637, ¶ 23 (2d Dist.).
Plaintiffs are able to bring claims under federal law by virtue of R.C. 2744.09(E), which
states: "This chapter [R.C. 2744] does not apply to . . . (E) Civil claims based upon alleged
Case No. 24 MA 0099 –8–
violations of the constitution or statutes of the United States . . . ." Appellant argues that
R.C. 2744.09(E) provides a "carve out," or exception to the defense of sovereign immunity
for alleged violations of constitutional rights.
{¶17} State and federal courts have disallowed Ohio’s sovereign immunity
defense in wrongful demolition cases where federal constitutional claims are made,
particularly under 42 U.S.C. 1983. Id. at ¶ 23. To establish a claim under 42 U.S.C.
1983, a plaintiff must demonstrate two elements: "(1) the conduct in controversy must be
committed by a person acting under color of state law, and (2) the conduct must deprive
the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the
United States." 1946 St. Clair Corp. v. Cleveland, 49 Ohio St.3d 33, 34 (1990).
{¶18} Although the trial court concluded that Appellant did not sufficiently plead
any constitutional claims, Appellant contends that the first two counts in the complaint are
clearly constitutional claims. Appellant used terms of art such as "taking for which just
compensation should have been made" and "due process of law," clearly invoking
constitutional rights. It should be noted that the phrase "due process of law" is not
contained in Ohio's Constitution, but appears in the U.S. Constitution in the Fifth and
Fourteenth Amendments. The Ohio Constitution utilizes the phrase "due course of law."
Ohio Const., art. I, § 16.
{¶19} As to Appellant's claim that Appellees acted under the color of state law, it
is self-evident from the complaint. The defendants are the City of Youngstown (a political
subdivision of the state), its mayor, the Department of Public Works, and the Department
of Property Code Enforcement and Demolition. The demolition took place under the
alleged authority of an order from the Youngstown Fire Chief, a public official. Appellant
Case No. 24 MA 0099 –9–
cited what he believed was the law under which they acted, R.C. 715.26. Appellant did
not cite the phrase "under the color of state law" in his complaint, but Appellees did not
argue in summary judgment that Appellant was required to use that exact phrase.
{¶20} Appellees never directly challenged Appellant's argument that he pleaded
sufficient facts and made sufficient references to a procedural due process violation to
satisfy Ohio's pleading requirements and overcome Appellees' immunity defense. We
recognize "Ohio is a notice-pleading state, and Ohio law does not ordinarily require a
plaintiff to plead operative facts with particularity. We have declined to apply a heightened
pleading standard by requiring a plaintiff to assert how or why the political subdivision is
not immune from suit, holding that adoption of such a standard would require a plaintiff to
anticipate affirmative defenses and exceptions at the inception of the litigation.' Ganzhorn
[v. R & T Fence Co., Inc., 2011-Ohio-6851 (11th Dist.)] at ¶ 24." Granite City Ctr., LLC v.
Bd. of Trustees of Champion Twp., 2021-Ohio-1458, ¶ 21 (11th Dist.).
{¶21} Appellant contends he provided proof that he received no prior citations
from the City of Youngstown regarding any code violations, had no complaints from his
tenant, had no notice of the demolition order, and that the demolition was not actually
undertaken as an emergency because over a month passed between the issuance of the
demolition order and the actual demolition.
Where a building fails to comply with the building code requirements
and is in a dangerous and unsafe condition, it can be razed by municipal
officials when properly authorized by ordinance. However, where the
building can be repaired and the danger to the public is not so imminent that
Case No. 24 MA 0099 – 10 –
it requires immediate razing of the building, the owner must be given a
reasonable time in which to repair the building, if he so desires.
Fifth Urban, Inc. v. Bd. of Bldg. Standards, 40 Ohio App.2d 389, 398 (8th Dist. 1974).
{¶22} While recovery is not permitted for wrongful demolition under the takings
clauses of the Ohio and United States Constitutions, recovery is available for the due
process violation involved. This is because the demolition of a structure by the state due
to health and safety concerns is considered to be an act of the police power of the state,
rather than an exercise of its eminent domain power for which just compensation must be
given. City of Cleveland v. W. E. Davis Co., 1996 WL 403337 (8th Dist. July 18, 1996);
Fifth Urban, Inc. at 398. Nevertheless, "[W]here a city has failed to provide a property
owner with an opportunity for hearing or appeal prior to the razing of property, the city has
denied the owner due process of law. In such instance, there is no immunity under R.C.
Chapter 2744. See R.C. 2744.09(E). In addition, the city will be precluded from receiving
its demolition costs." Englewood v. Turner, supra, ¶ 23; see also Grieb v. Dept. of Liquor
Control, 153 Ohio St. 77, 81-82 (1950).
{¶23} In their cross-motions for summary judgment both Appellant and Appellees
relied on a federal district court case to support their opposing positions: Two Bridges,
LLC v. City of Youngstown, 2022 WL 1487607 (N.D.Ohio May 10, 2022), aff'd 2023 WL
4030071 (6th Cir. June 15, 2023). This case also involves a wrongful demolition claim
against the City of Youngstown. Two Bridges, LLC ("Two Bridges") purchased property
on Oak Hill Avenue in Youngstown in 2019. The building had been vacant for six years
before the purchase. Soon after, Youngstown issued a variety of public safety citations
against the property. Two Bridges appealed the citations, explaining that a number of the
Case No. 24 MA 0099 – 11 –
cited problems had been corrected. In January of 2020, there were reports that bricks
were falling off of the building. Youngstown issued a further citation, and Two Bridges
later reported that this situation had been corrected.
{¶24} The Youngstown Fire Chief inspected the building on June 12, 2020 and
determined that the building needed to be demolished due to a sagging roof and because
the facade bricks were not secure. An emergency demolition order was issued on June
19, 2020. Two Bridges was not given notice of the demolition order. While waiting for
the demolition to take place, the City of Youngstown continued to investigate and inspect
the building. The demolition ultimately took place on August 22, 2020, 71 days after the
demolition order.
{¶25} Two Bridges filed a two-part complaint, arguing that the City of Youngstown
Ordinance allowing for demolition without notice was unconstitutional, and that demolition
of the property without notice was a due process violation. The district court ruled that
the Ohio statute governing demolition, R.C. 715.26, allowed for emergency
circumstances in which no notice would be given. Thus, the statute was not in conflict
with the Youngstown City Ordinance allowing emergency demolition without prior notice.
More importantly, though, the court held that a due process claim is permitted when the
government's assertion that an emergency existed is unsubstantiated. "When there is
actually no emergency condition or necessity for quick action, and nothing prevented the
municipality from providing pre-deprivation process, . . . city officials may not deny citizens
due process by falsely invoking an emergency need for quick action." Id. at *6. The Two
Bridges record reflected that the actual demolition took over two months to be completed,
showing that there was no emergency. In addition, no proof was submitted that the
Case No. 24 MA 0099 – 12 –
building posed an imminent danger. In fact, city officials continued to work inside the
building while waiting for the demolition to take place.
{¶26} The Two Bridges court held that there were factual matters in dispute over
whether the declaration of an emergency was a pretext, whether an emergency existed,
and whether pre-demolition notice to the owner was impractical. Id. at *7. The court also
held that Youngstown could not assert governmental immunity because the plaintiff
properly pleaded a procedural due process violation. Id. at *8.
{¶27} Appellant argues that Two Bridges stands for the principle that a procedural
due process claim is appropriate where the state cannot substantiate that an actual
emergency existed prior to the demolition, and that such a claim survives a governmental
immunity defense. Appellant is correct.
{¶28} The second count of Appellant's complaint is captioned "Denial of Due
Process of Law." (4/5/24 Complaint). Appellant recited the same type of facts that were
used to preserve the due process claim in the Two Bridges case. This was not a vague
or passing reference to due process. Appellant claimed there was no emergency, that
Youngtown had not cited him for any code violations, that there was a tenant renting the
property who had never raised any complaints about the condition of the property, and
that the decision to demolish the house was both unreasonable and unconscionable.
Under the standards set forth in Two Bridges, Appellant has properly pleaded his due
process claim, and it is not barred by the governmental immunity defense. Arguably, the
actions taken by Youngstown in this case appear more egregious than those in Two
Bridges. In Two Bridges, Youngstown had gone through its process of citing the property
with violation notices and allowed time for abatement. Youngstown also provided some
Case No. 24 MA 0099 – 13 –
evidence of the problems that led to the issuance of the “emergency” demolition order,
such as the sagging roof and falling bricks. Appellees provided absolutely no such
evidence in this case. Their motion for summary judgment was supported only by the
Order from the Fire Chief that he declared an emergency, which contained no supporting
documentation. The record here contains absolutely no factual evidence to support this
alleged emergency order. Hence, summary judgment should not have been granted in
Appellees’ favor on the procedural due process claim.
{¶29} Appellees questioned in the trial court whether Appellant's complaint can be
understood to raise a federal procedural due process claim under 42 U.S.C. 1983. We
agree Appellant did not specifically cite 42 U.S.C. 1983 or directly cite the U.S.
Constitution. Nevertheless, since this is a notice pleading state, and the complaint
contained sufficient salient facts to put Appellees on notice, we agree with Appellant that
the due process claim in his complaint is sufficient to overcome a defense of sovereign
immunity. As there are clearly outstanding issues of material fact regarding whether the
emergency demolition was justified, summary judgment was not appropriate. Therefore,
Appellant's assignment of error is sustained with respect to the due process claim in his
complaint, and with respect to Appellees’ counterclaim, in which they were inappropriately
awarded demolition costs.
Conclusion
{¶30} Appellant contends that the trial court should not have granted summary
judgment to Appellees in this wrongful demolition case. Appellant contends that there
was no emergency that would have justified demolishing the house without notice. He
argues on appeal that he pleaded sufficient facts and law to sustain a due process claim
Case No. 24 MA 0099 – 14 –
for wrongful demolition, that sovereign immunity does not apply to such a claim, and that
there are genuine issues of material fact in dispute. While Appellees did not timely
respond to the appeal, the record reflects a genuine dispute of material fact exists.
Appellees at no time supported whether a genuine emergency existed to allow for
summary judgment on the due process claim. The judgment of the trial court is reversed
as to count two of the complaint dealing with procedural due process. The trial court’s
decision to grant Appellees’ counterclaim for demolition costs is likewise reversed. The
trial court's judgment is affirmed as to counts one, three, four, and five. The case is
remanded to the trial court for further proceedings.
Robb, P.J. concurs.
Dickey, J. concurs.
Case No. 24 MA 0099 [Cite as Nicholson v. Youngstown, 2025-Ohio-1915.]
For the reasons stated in the Opinion rendered herein, Appellant’s assignment of
error is overruled in part and sustained in part. It is the final judgment and order of this
Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is
affirmed in part and reversed in part. As a result, this matter is remanded in part to the
trial court for further proceedings according to law and consistent with this Court’s
Opinion. Costs to be taxed against the Appellees.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.