City of Cleveland v. Lewis
96 N.E.3d 990
Ohio Ct. App.2017Background
- Property at 9807 Adams Ave., a two-family rental owned by Kenneth Lewis, was declared a public nuisance after a fire and inspection on October 23, 2008.
- On November 7, 2008 the City issued a "30 Day Condemnation" notice listing violations, advising of a 30-day correction period and right to appeal; certified mail to Lewis’s listed address was returned "unclaimed" and the notice was posted on the property.
- Lewis did not appeal, did not cure violations, and the City demolished the structure on August 13, 2009; Lewis did not challenge the demolition at that time.
- On August 11, 2015 the City sued Lewis in Cleveland Municipal Housing Court to recover demolition and related costs; the City moved for summary judgment and obtained an award of $9,513 plus interest.
- Lewis appealed, arguing (1) the City failed to provide required notices (C.C.O. 367.05 and 367.04/3103.09), (2) the City failed to conduct a reasonable and diligent search before serving notice, and (3) the trial court improperly considered Exhibit B (mailing records and photos) in ruling on summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether one notice (a notice of violation designating "30 Day Condemnation") satisfies municipal code prior to demolition | City: A single notice that informs owner of violations, appeal rights, and demolition consequences satisfies C.C.O. 367.05 and 3103.09; notice may be "effective concurrently with the violation notice." | Lewis: Ordinance requires separate notices — a violation notice and a separate notice of intent to demolish; single notice was insufficient. | Court: Single notice is sufficient; code authorizes demolition after owner fails to comply with the violation notice and allows the notice of intent to be effective concurrently with the violation notice. |
| Whether service by certified mail and posting was adequate given "reasonable and diligent search" language | City: Sent notice by certified mail to tax/residential address listed on county duplicate; when mail returned unclaimed, City also posted notice on premises — satisfying 3103.09(e)(1) and (e)(2). | Lewis: City did not show it performed a reasonable and diligent search before resorting to certified mail/posting; genuine issue of material fact exists. | Court: No genuine issue — City found Lewis’s address and sent certified mail; posting after "unclaimed" receipt was an appropriate extra step; service was proper. |
| Whether Exhibit B (mailing records, USPS tracking, photos) was properly considered on summary judgment | City: Exhibits are business records authenticated by affidavit and/or deemed admitted via defendant’s failure to timely respond to requests for admission. | Lewis: Affidavit did not properly authenticate postal records and photos; trial court should not have relied on them. | Court: Any authentication defects were harmless; defendant’s failure to timely answer requests for admission contributed to admissibility; documents may be considered. |
| Whether summary judgment was appropriate on the City’s cost-recovery claim | City: No genuine issue of material fact; entitlement to costs as a matter of law because notice and service were proper and Lewis failed to act. | Lewis: Disputes over notice/service and exhibit authenticity preclude summary judgment. | Court: Summary judgment affirmed; City entitled to abatement costs. |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 671 N.E.2d 241 (Ohio 1996) (standard of review for summary judgment — de novo and Civ.R. 56 criteria)
- Biskupich v. Westbay Manor Nursing Home, 33 Ohio App.3d 220, 515 N.E.2d 632 (8th Dist. 1986) (non-enumerated documents may be introduced by incorporation in a proper affidavit)