AMM PERIC PROPERTY INVESTMENT, INC., ET AL. v. CITY OF CLEVELAND
No. 99848
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 6, 2014
2014-Ohio-821
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-753463
BEFORE: Stewart, P.J., Celebrezze, J., and Keough, J.
RELEASED AND JOURNALIZED: March 6, 2014
Scott H. Schooler
Helen Forbes Fields
Forbes, Fields & Associates
700 Rockefeller Building
614 W. Superior Avenue
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
City of Cleveland Law Director
BY: Susan M. Bungard
Assistant Law Director
City of Cleveland, Law Department
Cleveland City Hall
601 Lakeside Avenue, Room 106
Cleveland, OH 44106
{¶1} Plaintiff-appellant AMM Peric Property Investment, Inc. and its principal, Zvonimir J. Peric1 (collectively “Peric“), owned an outbuilding located in the city of Clеveland that suffered structural damage after being struck by a drunk driver. About four months after the accident — months in which Peric had been in communication with the city‘s building department — the contractor Peric hired to make repairs to the building applied for а building permit but was denied the permit because the city could not determine whether the building was residential or commercial. Three days later, the city demolished the building and an adjacent garage because it was an “emminent [sic] danger and pеril to human life.” After demolishing the structures, the city sent Peric written notice of the condemnation and a bill for demolition services.
{¶2} Peric filed this action claiming that the city‘s conduct deprived him of due process and that it acted negligently by demolishing the buildings; the city counterclaimed for the cost of demolition. The city sought summary judgment on several grounds, among them the affirmative defense that Peric failed to exhaust administrative remedies by appealing to the city‘s Board of Building Standards and Building Appеals (the “board“). Peric argued that an administrative appeal would have been futile because the buildings had been demolished without prior notice. The court found that the city‘s administrative appeals process provided an adequate post-deprivation process and to
I
{¶3} The affirmative defense of exhaustion of administrative remedies states that a party seeking relief from an administrative decision must pursue available administrative remedies before pursuing action in a court. Noernberg v. Brook Park, 63 Ohio St.2d 26, 29, 406 N.E.2d 1095 (1980), citing State ex rel. Lieux v. Westlake, 154 Ohio St. 412, 96 N.E.2d 414 (1951). The idea behind the defense is that administrative agencies have developed “experience and expertise” and that the courts want to give agencies the opportunity to correct their own errors and compile a record before the parties commence judicial review. Dworning v. Euclid, 119 Ohio St.3d 83, 2008-Ohio-3318, 892 N.E.2d 420, ¶ 9.
{¶4} The rule that a party exhaust administrative remedies is not absolute: there is no need to pursue administrative remedies if doing so would be a futile or a vain act. Driscoll v. Austintown Assocs., 42 Ohio St.2d 263, 275, 328 N.E.2d 395 (1975). Futility in this context means not that the administrative agency would not grant the requested relief, but that the administrative agency lacks the authority or power to grant the relief sought. State ex rel. Teamsters Local Union No. 436 v. Bd. of Cty. Commrs., 132 Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 224, ¶ 24, citing Nemazee v. Mt. Sinai Med. Ctr., 56 Ohio St.3d 109, 115, 564 N.E.2d 477 (1990).
{¶5} The city‘s motion for summary judgment argued, without elaboration, that its ordinances provided an administrative remedy for Peric by way of an appeal to the city‘s Board of Building Standards and Building Appeals. It cited
{¶6} The difficulty with the city‘s argument is that even if the board determined that the demolition of Peric‘s buildings was unjustified,
{¶7} To say that the existence of an appeal constitutes an adequate remedy begs the question of what type of remedy the board could grant under the circumstances.
{¶8} The board‘s seeming inability to award monetary damages if it were to decide an appeal in Peric‘s favor is why we find the court‘s reliance on Collins v. Cleveland, N.D.Ohio No. 1:11CV2221, 2010 U.S. Dist. LEXIS 153518 (Oсt. 24, 2012), to be misplaced. In Collins, the city demolished Collins‘s house on an emergency basis, without notice, after a house fire made it a hazard. Collins filed constitutional claims in federal court, but the district judge found that he failed to exhaust his administrative remedies because he did not appeal to the board. The district court judge did not consider whether the appeal authorized by
{¶10} The city‘s argument that it demolished the building on аn emergency basis without notice contradicts another of the city‘s arguments — that Peric had been given prior notice of condemnation at the time his contractor applied for a building permit. The city claims a clerk in the building department verbally informed Peric‘s contractor that the building had been condemned, so Peric had the opportunity to file an appeal, at which point the board would have been forced to stay any demolition. See
{¶11} In addition to finding that the board lacked the ability to award monetary damages, we likewisе find nothing in the city‘s ordinances that would suggest that the board could assess attorney fees against the city consistent with Peric‘s due process claim. Certainly, a board of building standards would have no particular expertise in awarding legal fees such that the courts would be expected to defer to it. So even if the board was to determine that the director failed to comply with notice requirements or that an emergency demolition was unwarranted under the circumstances, that finding would be an incomplete remedy — akin to a finding of liability without the power to award damages. Unlike situations where the board can address findings of building code violations before a property is demolished, a post-deprivation review leaves the bоard powerless to make the property owner whole if it was to find in favor of the property owner.
{¶12} As with all affirmative defenses in civil cases, the defendant bears the burden of proof. MatchMaker Internatl., Inc. v. Long, 100 Ohio App.3d 406, 408, 654 N.E.2d 161 (9th Dist.1995). And as the party seeking summary judgment, the city had the initial burden of establishing the absence of any material facts and that it was entitled to judgment as a matter of law. See
{¶13} This cause is reversed аnd remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellants recover of appellee their costs herein taxed.
The court finds there were reasonable grounds for this appeаl.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellаte Procedure.
MELODY J. STEWART, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS;
KATHLEEN ANN KEOUGH, J., DISSENTS WITH SEPARATE OPINION
AMM PERIC PROPERTY INVESTMENT, INC., ET AL. v. CITY OF CLEVELAND
No. 99848
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 6, 2014
2014-Ohio-821
{¶14} I respectfully dissent. I would affirm the trial court‘s decision in its entirety.
{¶15} Ohio law has established that where an administrative remedy is available, a party must exhaust such administrative relief prior to seeking court аction. Noernberg v. Brook Park, 63 Ohio St.2d 26, 29, 406 N.E.2d 1095 (1980), citing State ex rel. Lieux v. Westlake, 154 Ohio St. 412, 96 N.E.2d 414 (1951). The purpose of the exhaustion doctrine is to afford the trial court with an adequate factual record upon which to make an informed decision and to promote judicial economy through the resolution of these disputеs without the premature need for judicial intervention. See Nemazee v. Mt. Sinai Med. Ctr., 56 Ohio St.3d 109, 564 N.E.2d 477 (1990). The majority finds that exhaustion of the administrative remedy would have been futile or a vain act; thus, summary judgment on this ground was improper. I disagree.
{¶16} In this case, the fact that the parties disagreе whether the demolition of Peric‘s property was properly declared an emergency (the underlying issue) makes the administrative appeal to the board anything but futile. Peric, a retired city of Cleveland building inspector who presumably was аware of the policies and procedures of the Cleveland Department of Building and Housing, could have appealed the condemnation and demolition orders through an administrative post-deprivation hearing. Therefore, the fаctual record could have been established before the board, and the board could have
{¶17} Accordingly, if it was determined at the administrative hearing that the demolition was not an emergency, then Peric would have been entitled to a pre-deprivation notice. If the record supports that Peric did not receive such notice, the city would have violated his due process rights; thus, rendering the demolition an unlawful taking. If it was found that it was an unlawful taking, Peric could have filed the requisite mandamus action to seek just compensation. “In order to obtain compensation for an unlawful taking, a mandamus action must be filed to compel public authorities to conduct appropriation proceedings.” Palco v. Springfield, 2d Dist. Clark No. 2004 CA 80, 2005-Ohio-6838, ¶ 23, citing Florian v. Bd. of Cty. Commrs. of Hamilton Cty., 1st Dist. Hamilton No. C-800843 (Aug. 5, 1981), unreported; Huelsmann v. State, 56 Ohio App.2d 100, 108, 381 N.E.2d 950 (10th Dist.1977); State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 108, 1994-Ohio-385, 637 N.E.2d 319; see also Silver v. Franklin Twp., 966 F.2d 1031, 1035 (6th Cir.1992).