Two Bridges, LLC v. City of Youngstown, Ohio

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 15, 2023
• Docket: 22-3506
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0279n.06

Case No. 22-3506

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED ) Jun 15, 2023 TWO BRIDGES, LLC, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE NORTHERN CITY OF YOUNGSTOWN, OHIO, ) DISTRICT OF OHIO Defendant-Appellant. ) ) OPINION

Before: CLAY, GRIFFIN, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge. Two Bridges, LLC owned a building in Youngstown, Ohio that

had fallen into serious disrepair. Youngstown deemed the property unsafe pursuant to a city

ordinance and had it demolished. Two Bridges did not receive notice of the demolition before it

occurred. It sued the city claiming that the city’s actions violated its due process rights under the

Fourteenth Amendment to the United States Constitution. Youngstown moved for summary

judgment on Two Bridges’s due process claim, claiming it was protected by statutory immunity

under Ohio state law. The district court denied the city’s motion, finding that a state-law provision

exempting federal claims from statutory immunity applies. Youngstown now brings this appeal.

For the reasons that follow, we AFFIRM the judgment of the district court. Case No. 22-3506, Two Bridges, LLC v. City of Youngstown

I.

Two Bridges bought property, including land and a building, at 15 Oak Hill in

Youngstown, Ohio in 2018. The building had been vacant for about four years when Two Bridges

bought it, and by 2020, several municipal code violations and related complaints had been lodged

against it. The city mailed multiple notices to Two Bridges in the spring and summer of 2019

advising that the building was in unacceptable condition—but it sent the notices directly to the

vacant building.1 No one at Two Bridges received the notices.

The Fire Chief and the city’s Code Enforcement Superintendent inspected the building on

June 12, 2020, to determine whether it posed a fire hazard. Among other things, they observed

that the roof apparently had sunk around 6 to 12 inches on all four sides of the building. From his

inspection, the Fire Chief concluded that the building posed a fire hazard and danger to human

life; he therefore considered the building an unsafe structure as defined by City Ord. § 1525.01(a)–

(b). Under § 1525.01(a)–(b), an “unsafe structure” is, among other things, one that presents a fire

hazard or is “otherwise dangerous to human life.” And § 1525.01(c) authorizes the local Fire Chief

to order the demolition of any unsafe structure in the case of an emergency. Due to “the extreme

deterioration of the property and the risk that it posed to potential vagrants . . . and first responders,”

the Fire Chief ordered an emergency demolition of the building under § 1525.01(c). (R. 27: Barry

Finley Affidavit, at PageID 420 ¶ 7; see also R. 25-1: Barry Finley Deposition Transcript, at

PageID 207 (Emergency Demolition Order)). A little over two months later, on August 22, 2020,

Youngstown demolished the building at 15 Oak Hill.

1 Youngstown also attempted to mail notices directly to the property owner at two of his other business addresses. But the mailings were returned by the U.S. Postal Services unclaimed.

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Two Bridges filed suit in Ohio state court after the demolition. In its two-count complaint,

Two Bridges brought one claim challenging the city’s emergency demolition ordinance as

violative of Ohio’s constitution and a second claim under 42 U.S.C. § 1983, asserting that

Youngstown deprived it of its property without due process of law, in violation of the Fourteenth

Amendment. Notably, Youngstown removed the case to federal court, acknowledging that Two

Bridges sought recovery pursuant to a federal statute, namely 42 U.S.C. § 1983. After the parties

completed discovery, Youngstown moved for summary judgment on both counts of the complaint.

Relevant here, as to Count 2—the § 1983 claim—the city argued that it was entitled to statutory

immunity. The district court granted summary judgment on count one—the state constitutional

claim—but denied it as to count two, finding that Two Bridges properly pleaded a federal cause

of action which is exempted from immunity under the Ohio Political Subdivision Tort Liability

Act, Ohio Rev. Code Ann. §§ 2744.01, et seq. Youngstown brought this timely appeal.

II.

In reviewing actions involving questions of state law, generally we apply state substantive

law and federal procedural law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78–79 (1938). This

principal has some application here where Youngstown seeks to invoke state statutory immunity

against Two Bridges’s claim—which also, at least according to the city, arises under Ohio law.

The first procedural issue we must address is one of jurisdiction. Youngstown asserts that we have

jurisdiction by virtue of Ohio Rev. Code Ann. § 2744.02(C), which provides that orders

determining the applicability of statutory immunity under the Act are treated as final decisions.

But we are governed by federal procedural law on the issue of jurisdiction over an interlocutory

appeal, not state law. Chesher v. Neyer, 477 F.3d 784, 793 (6th Cir. 2007). And ordinarily, orders

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denying summary judgment do not qualify as final orders over which we may exercise appellate

jurisdiction. Id.; see also 28 U.S.C. § 1291.

There are a few exceptions to this general rule under the collateral-order doctrine of Cohen

v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Under this doctrine, a district court’s

summary judgment decision is subject to interlocutory review by this court if it “(1) conclusively

determines the disputed question, (2) resolves an important issue completely separate from the

merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.” Sell v.

United States, 539 U.S. 166, 176 (2003) (cleaned up). Cases where a party has invoked an

immunity-from-suit defense, such as sovereign immunity, absolute immunity, or qualified

immunity, frequently fall into this category. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 147 (1993) (sovereign immunity); Nixon v. Fitzgerald, 457 U.S. 731, 742

(1982) (absolute immunity); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (qualified immunity to

the extent that it turns on a question of law). Both Youngstown and Two Bridges have cited cases

involving interlocutory appeals on decisions of qualified immunity to support our jurisdiction. But

we are not faced with such a claim here, and the analysis we would apply if we were—whether

the question of immunity rests solely upon a question of law—is inapt here. All is not lost,

however. As we explained in Black v. Dixie Consumer Products LLC, a party who loses on

summary judgment based on the court’s rejection of an immunity defense may immediately appeal

since “the core point of ‘immunity is its possessor’s entitlement not to have to answer for [its]

conduct in a civil damages action.’” 835 F.3d 579, 582 (6th Cir. 2016) (quoting Mitchell, 472 U.S.

at 525). Key to the equation is whether the immunity at issue would otherwise bar the opponent’s

claim. Thus, if the immunity in question provides protection from suit, rather than simply

protection from liability, then a decision rejecting that immunity satisfies Cohen’s call for

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conclusiveness, separateness and unreviewability and it is appropriate for our appellate review.

Pertinent here, Ohio Rev. Code Ann. § 2744 provides Ohio municipalities with a complete defense

from suit. See Range v. Douglas, 763 F.3d 573, 581 (6th Cir. 2014) (observing in relation to claim

for immunity under Ohio Rev. Code Ann. § 2744, that “[s]ince 2003, Ohio statutory immunity has

provided complete immunity from suit, which means there is interlocutory jurisdiction”); see also

Chesher, 477 F.3d at 793–94. We are thus satisfied that we have jurisdiction to consider this

appeal.

III.

We review the district court’s denial of Youngstown’s summary judgment motion de

novo. Render v. FCA US, LLC, 53 F.4th 905, 913 (6th Cir. 2022). Summary judgment is proper

only when there is no genuine issue of material fact and the moving party is entitled to judgment

as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) (citing FED. R. CIV. P.

56(c)). “A dispute of a material fact is genuine so long as ‘the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.’” Render, 53 F.4th at 913 (quoting Kirilenko-

Ison v. Bd. of Educ. of Danville Indep. Schs., 974 F.3d 652, 660 (6th Cir. 2020)); see also Anderson

v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). We construe the evidence and afford “all

reasonable inferences” in favor of the nonmoving party in our review. Jackson v. City of

Cleveland, 925 F.3d 793, 806 (6th Cir. 2019) (quoting Burgess v. Fischer, 735 F.3d 462, 471 (6th

Cir. 2013)).

IV.

The Act provides that municipalities like Youngstown generally enjoy immunity from tort

liability. Id. § 2744.02(A)(1) (limiting liability for “political subdivisions”); see also id. §

2744.01(F) (broadly defining a political subdivision as a municipality or any entity “responsible

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for governmental activities in a geographic area smaller than that of the state”). But the law is

subject to certain exceptions. Several exceptions are found in § 2744.02(B) and apply in the

context of certain state-law claims. A separate exception applies to federal claims: municipalities

are not immune from “[c]ivil claims based upon alleged violations of the constitution or statutes

of the United States.” Id. § 2744.09(E). This carve-out applies to claims brought pursuant to 42

U.S.C. § 1983. See, e.g., Summerville v. City of Forest Park, 943 N.E.2d 522, 527 (Ohio 2010);

Patton v. Wood Cnty. Humane Soc’y, 798 N.E.2d 676, 681 (Ohio Ct. App. 2003); see also

Longstreth v. Franklin Cnty. Child. Servs., 14 F.3d 601 (Table), 601 (6th Cir. 1993) (per curiam)

(noting that political subdivisions are not immune from suits raising federal claims under § 1983).

Even so, a plaintiff who nominally brings a § 1983 claim that is, in substance, an action in tort is

not permitted to invoke § 2744.09(E). Instead, Ohio courts look to the “essential nature” of a

plaintiff’s civil action to determine whether the provision applies to a particular claim. Campbell

v. City of Youngstown, No. 06 MA 184, 2007 WL 4696963, at *3 (Ohio Ct. App. Dec. 31, 2007)

(citing Bram v. Cleveland, 647 N.E.2d 523, 525 (Ohio Ct. App. 1993)).

In arguing that the § 2744.09(E) carve-out does not apply here, Youngstown’s argument is

twofold, but based on a singular premise—that Two Bridges’s claim sounds in state tort law rather

than federal law, so the city is protected by statutory immunity. To reach this result, Youngstown

first posits that Two Bridges has made out a wrongful demolition claim under state law. Therefore,

the only exceptions from statutory immunity are those included in § 2744.02(B)(1)–(5). And since

none of those exceptions apply, the city is immune from suit. Its second argument, to the extent

that it is a separate argument, is a slight variation of the first: wrongful demolition claims that

involve allegations of federal constitutional violations are insufficient to escape the immunity

afforded by the statute. Under Youngstown’s analysis, § 2744.09(E), which exempts federal

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claims from the reach of statutory immunity, simply does not come into play. But bypassing the

applicability of § 2744.09(E) gets us nowhere. The central question of this appeal is whether the

district court erred in concluding that Two Bridges’s claim qualifies as a federal claim and is thus

exempt from statutory immunity.

We therefore start with the requirements for a procedural due process claim. We have

previously explained that a plaintiff can obtain relief under § 1983 for a violation of procedural

due process rights by showing that (1) he possesses a life, liberty or property interest protected by

the Due Process Clause, (2) he was deprived of this protected interest within the meaning of the

Due Process Clause, and (3) the state did not provide adequate procedural rights before depriving

him of his protected interest. See Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999); see also

Eaton v. Charter Twp. of Emmett, 317 F. App’x 444, 447 (6th Cir. 2008) (recognizing same in the

context of such a § 1983 claim arising from township’s demolition of a building without proper

notice). And “[g]enerally, the process that is due before the state may deprive an owner of property

includes notice to the owner prior to the deprivation and an opportunity for a predeprivation

hearing.” Harris v. City of Akron, 20 F.3d 1396, 1401 (6th Cir. 1994). The record shows that the

thrust of Two Bridges’s claim—that is, its “essential nature”—concerns these very elements.

Count 2 of the complaint specifically cites 42 U.S.C. § 1983 as the source of its claim and goes on

to allege facts to demonstrate that the city’s application of its demolition ordinance deprived Two

Bridges of its right to due process. For example, the complaint asserts that (1) municipal law

“requires no notice to a property owner” prior to an emergency demolition; yet (2) the federal

Constitution provides that “no person . . . shall be deprived of property without due process of

law”; and (3) “plaintiff was given no notice” before the emergency demolition of its building.

(R. 1-2: Complaint, at PageID 7 ¶ 8, 8 ¶¶ 22, 26). Viewing these allegations in context, it is

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apparent that the claim focuses on Youngstown’s alleged failure to afford Two Bridges appropriate

procedural safeguards before destroying its property. Indeed, Two Bridges expressly asserts that

the city’s actions “violate[d] its rights pursuant to the [Fourteenth] Amendment of the Constitution

of the United States.” And with respect to relief, Two Bridges seeks a declaration that the relevant

city ordinance is “unconstitutional under the [Fourteenth] Amendment.” Add to that, the

complaint follows the basic contours of a § 1983 claim; it avers that, as a result of Youngstown’s

application of its city ordinance, Two Bridges suffered a “deprivation of a right secured under the

Constitution or federal law” which was “caused by a person acting under color of state law.” Alkire

v. Irving, 330 F.3d 802, 813 (6th Cir. 2003) (citing Brock v. McWherter, 94 F.3d 242, 244 (6th Cir.

1996)). Such allegations are part and parcel to actions brought under § 1983. Id.

While Two Bridges’s pleadings consistently emphasize its deprivation of due process

under federal law, neither in this court nor before the district court has Youngstown pointed to any

evidence in the record that the company has invoked state tort law during this litigation. Thus,

accepting its argument would require us to construe the record in its favor rather than in favor of

the non-movant—something we cannot do. See Jackson, 925 F.3d at 806. And Two Bridges’s

singular reference to a “wrongful taking” in briefing during the proceedings below does not

suggest that it truly pursues a claim for “wrongful demolition” in tort as the city posits. Whatever

evidence may have been developed during discovery in this case, the city points to none supporting

its position. Under these facts, there is no reason to conclude that a tort claim, rather than a

constitutional claim, lies at the heart of Two Bridges’s suit.

Youngstown resists this conclusion, however, insisting that “assertions of constitutional

violations raised within the context of a wrongful demolition claim are insufficient as a matter of

law to invoke [the § 2744.09(E)] exception to immunity.” (Dkt. 30: Appellant Brief (emphasis

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added)). For support, Youngstown relies on a line of mostly unreported state cases in which the

plaintiffs raised federal constitutional issues in their complaints for wrongful demolition but failed

to include sufficient allegations to make out a claim under § 1983. In each of those cases, Ohio

courts found the § 2744.09(E) exception inapplicable solely because the pleadings contained scant

indicia that the plaintiffs truly sought relief under federal law—not because there exists a blanket

rule that claims relating to demolitions always sound in tort, as Youngstown seems to suggest. For

instance, in Campbell v. City of Youngstown, the appellate court found that the plaintiff’s complaint

was missing essential elements of a § 1983 action so there was no federal claim to which

§ 2744.09(E) should be applied. 2007 WL 4696963, at *4. And in Bram v. Cleveland, which

involved the emergency demolition of a property in Cleveland, the court found that the plaintiff’s

“vague assertion” of constitutional rights as a “general proposition” in a second amended

complaint failed to raise anything but a tort claim. 647 N.E.2d at 525. See also Broadview

Mortgage Company v. City of Cleveland, No. 61939, 1993 WL 76884, at *3 (Ohio Ct. App. Mar.

18, 1993). It is perhaps telling that, unlike defendant here, none of the defendants in those state

court actions removed the plaintiffs’ claims to federal court under federal question jurisdiction.

The plaintiffs’ claims in each of those cases, at their core, simply did not arise from federal law.

That is not the case here for reasons already explained.

In sum, whether a plaintiff can invoke the federal exception to statutory immunity depends

on the substance of his claim. Properly pleaded due process claims under the federal Constitution

are not transformed into tort actions simply because they are raised in the wake of a demolition.

See, e.g., Leath v. Cleveland, No. 102715, 2016 WL 193370, at *2–3 (Ohio Ct. App. Jan. 14, 2016)

(treating plaintiff’s demolition-related due process claims as constitutional rather than tortious in

nature); Bancplus Mortg. Corp. v. City of Cleveland, No. 65011, 1994 WL 258644, at *4 (Ohio

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Ct. App. June 9, 1994) (same); Pioneer Sav. & Loan Co. v. City of Cleveland, 479 F.2d 595, 598

(6th Cir. 1973) (same); Superior Sav. Ass’n v. City of Cleveland, 501 F. Supp. 1244, 1250 (N.D.

Ohio 1980) (same).

V.

The district court properly denied summary judgment to Youngstown because the

§ 2744.09(E) federal claim exclusion from immunity applies to Two Bridges’s § 1983 claim. We

therefore AFFIRM.

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