[Cite as Cleveland v. Colby, 2022-Ohio-4207.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 111400
v. :
TERRELL J. COLBY, ET AL., :
Defendants-Appellants. :
[Appeal by Ohio Properties, L.L.C.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 23, 2022
Civil Appeal from the Cleveland Municipal Court
Case No. 2019 CVH 006506
Appearances:
Douglass & Associates Co., LPA, David M. Douglass,
Sean F. Berney, Michael E. Reardon, and Heidi A.
Armstrong, for appellee.
Lieberman, Dvorin & Dowd, LLC, David M. Dvorin and
Dustin S. Lewis, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Ohio Properties, L.L.C. (“appellant”), appeals
from the trial court’s judgment granting summary judgment to plaintiff-appellee,
the city of Cleveland (the “city”), on the city’s claim for reimbursement of monies
expended in demolishing a condemned property once owned by appellant. For the
reasons that follow, we affirm.
I. Background
Appellant took title to the property at 714 East 124th Street in
Cleveland, a two-story, six-unit apartment building (the “Property”), on June 9,
2010. On August 22, 2012, the city, through its Director of Building and Housing,
determined that the Property was a public nuisance because its dilapidated and
abandoned condition constituted an eminent danger and peril to human life and
public health. The city issued a Notice of Violation of Building and Housing
Ordinances (the “Notice”) to appellant, advising it that pursuant to Cleveland
Codified Ordinances (“C.C.O.”) 3103.09, 367.04, 369.19, and 369.21, the city would
summarily abate the nuisance by demolishing the Property if the code violations
listed in the Notice were not abated by September 21, 2012. The Notice advised that
“[a]ny and all costs incurred by the city for the demolition of the building(s) shall be
paid by the owner(s) of record” and that if appellant did not pay, the city would
initiate legal action “to collect the debt.” The Notice further advised appellant that
if it wished to appeal the Notice, it must file a written appeal within 30 days of the
date of the Notice.
Appellant did not appeal the Notice. Instead, on May 13, 2013, it sold
the Property for $1.00 to Hauser Estates L.L.C. and Carries Investments, L.L.C.
Hauser and Carries sold the Property to Lojuanah Donn on July 31, 2015, also for
$1.00. Donn sold the property on May 17, 2016, to Terrell Colby. The city
subsequently sent Colby a copy of the Notice. On May 17, 2017, the city demolished
the Property, using a private demolition contractor, because the cited code
violations had not been corrected.
On April 26, 2019, the city filed suit against the above-mentioned
owners of the Property for collection of its demolition and other costs relating to the
Property. The city sought $25,663.73 for demolition, nuisance abatement, and
administrative costs, plus attorney fees in the amount of $6,415.93, for a total of
$32,079.66. Only appellant answered the complaint.
After discovery was complete, the city filed a motion for summary
judgment. Exhibits attached to the city’s motion included copies of records relating
to title transfers between the owners of the Property, the Notice, certified mail
receipts regarding the Notice, pictures of the Property, invoices for the city’s
asbestos abatement at the Property and demolition of the Property by independent
contractors, a statement of the city’s administrative costs relating to the Property,
an affidavit of counsel regarding the amount and reasonableness of attorney fees for
work performed on the matter, and an affidavit from the city’s Assistant Director of
Building and Housing attesting to the matters set forth in the city’s complaint.
In its motion, the city argued that under R.C. 715.261, a municipality
may recover the costs of abating a nuisance from a property owner. It argued further
that under C.C.O. 3103.09(k)(1), “[a]ny and all expenses and costs * * * incurred
under this section relating to the demolition * * * of a building * * * or for abating
any other nuisance shall be paid by the owner of such building or structure * * *”
and under C.C.O. 3103.09(k)(2),
[a]ny and all owners of a building or structure who appear in the chain
of title from the time of receipt of a notice of condemnation until
demolition of the building or structure shall be jointly and severally
responsible for all costs and expenses incurred relating to the
demolition and all costs and expenses of prosecution or collection
related thereto.
The city argued that appellant had admitted in its answers to the city’s
interrogatories that it owned the Property from June 9, 2010, through May 13, 2013.
Accordingly, the city asserted that because appellant owned the Property when the
Notice was issued, there was no genuine issue of material fact that appellant was
jointly and severally liable for the costs of demolition and nuisance abatement
relating to the Property.
Appellant filed a brief in opposition to the city’s motion. Appellant
conceded that it had received the Notice but argued that the Notice did not adhere
to the procedural due process requirements of R.C. Chapter 119, as applied to the
city by R.C. 3781.031, regarding notices of violation. Appellant contended that the
Notice failed to advise it of “all of the rules and laws involved” in the violation and
further, that “it actually misrepresented the liability in question.” Specifically,
appellant asserted that the statement in the Notice that costs incurred by the city for
the demolition “shall be paid by the owner(s) of record” referred only to the owner
of the property at the time of demolition and not to all owners within the chain of
title and, therefore, the Notice failed to advise appellant that it could be liable for
demolition costs even if it sold the Property. Appellant further contended that the
city did not provide an opportunity for a hearing, as required by R.C. 119.06.
Accordingly, appellant argued that the Notice violated its procedural due process
rights and, therefore, it would be “statutorily and constitutionally impermissible” for
the court to grant summary judgment to the city under such circumstances.
Appellant also argued that even if it were found liable, it could only be
held responsible for 20 percent of the demolition costs because the city had admitted
that “[appellant] owned the Property for less than 20% of the relevant time and is
no more responsible than any of the other co-defendants.” Appellant pointed to the
city’s responses to requests No. 15 and 16 in appellant’s requests for admissions as
evidence of the city’s admissions:
Request No. 15: According to title records showing a transfer on
5/13/2013, the City’s records indicating a condemnation notice was
issued on 8/22/2012, and that demolition occurred on 5/12/2017,
Defendant Ohio Properties, LLC owned the subject property for less
than 20% of the time the property was condemned.
ANSWER: Admitted.
Request No. 16: Three other persons or entities owned the Property
while it was condemned, and all three equally failed to abate any
nuisance alleged by the City.
ANSWER: Admitted.
Appellant argued that pursuant to R.C. 2307.22(A)(2), regarding
joint and several liability in tort actions, where a defendant is less than 50 percent
liable for the injury or loss to person or property, the defendant is liable to the
plaintiff only for his proportionate share of the damages. Accordingly, appellant
argued that because the city had conceded that appellant owned the Property for
only 20 percent of the time it was condemned, appellant could only be liable for 20%
of the demolition costs, or around $5,000.
After appellant filed its brief in opposition, a magistrate issued a
journal entry advising the parties that he had construed appellant’s brief to be a
cross-motion for summary judgment “attacking the constitutionality of C.C.O.
3103.09(k)(2).” The city filed an objection to the magistrate’s order, asserting that
neither party had raised an issue regarding the constitutionality of C.C.O.
3103.09(k)(2) and that the court had therefore impermissibly raised the issue sua
sponte.
The city also filed a reply to appellant’s brief in opposition to the city’s
motion for summary judgment. In its reply, the city asserted that the Notice was
procedurally sufficient because it was issued in compliance with C.C.O. 3103.09(c),
which requires a certified mailing, a list of the existing code violations, a prescribed
period of time to comply, and actions to be taken if the recipient does not comply
with the Notice. Furthermore, the city pointed out that the Notice gave appellant
the right to appeal the Notice within 30 days of its issuance, in compliance with
C.C.O. 3103.09(g).
The city also pointed out that the Notice advised appellant that it was
issued pursuant to C.C.O. 3103.09, 367.04, 369.19, and 369.21, and that failure to
comply with the Notice would result in “prosecutive action or penalty as provided
by law” and “demolition of the building(s).” The Notice further advised that “any
and all costs incurred by the city for the demolition of the building(s) shall be paid
by the owner(s) of record” and that “if the owner(s) fails to pay for the costs within
30 days, legal action shall be initiated to collect the debt.” Accordingly, the city
argued, appellant’s assertion that the Notice did not adequately advise it of “all the
rules and laws involved” in the violation was simply wrong.
With respect to appellant’s argument that the Notice referred only to
the owner at the time of demolition, the city argued that for purposes of C.C.O.
3103.09(k)(2), a party is an “owner” of property when it appears in the chain of title
between notice of violation and demolition. And finally, with respect to appellant’s
argument regarding its limitation on liability, the city asserted that C.C.O.
3103.09(k)(2) applies joint and several liability to each owner of the property from
the notice of violation to the time of demolition.
In its judgment entry granting summary judgment to the city, the trial
court sustained the city’s objections to the magistrate’s order, ruling that the city was
“correct that the court should not consider granting judgment to [appellant] when
[appellant] has not sought that relief” and that appellant should have filed a request
for leave to file a motion for summary judgment if it wanted such relief.
Regarding the city’s motion for summary judgment, the trial court
found that the city had met its burden of demonstrating that it had provided a Notice
of violation to appellant ordering it to abate the nuisance, that appellant did not
abate the nuisance, and that the city then, at its costs, did so by demolition. The
court ruled that under C.C.O. 3103.09(k), appellant was liable for the cost of the
abatement because it owned the Property when it was condemned, even though it
was not the owner at the time of demolition.
The trial court found that appellant had not met its reciprocal burden
of identifying evidence that disputed the elements of the city’s claim. The court
found that appellant had argued that C.C.O. 3103.09(k)(2) was unconstitutional but
that its due process argument failed because it did not challenge the application of
C.C.O. 3103.09(k)(2) through an administrative appeal. The trial court also ruled
that the city was entitled to judgment against appellant for the full cost of the
abatement of the public nuisance on the Property because C.C.O. 3103.09(k)(2)
provides for joint and several liability between all property owners after the notice
of condemnation until the time of demolition. Accordingly, the court granted
judgment to the city against appellant in the amount of $32,079.66, plus costs. This
appeal followed.1
1 Appellant’s initial appeal to this court was dismissed for lack of a final appealable
order because the trial court’s judgment entry did not address the city’s claims against the
remaining defendants. The city subsequently filed a renewed motion for default
judgment against the remaining defendants, which the trial court granted. Appellant then
refiled its appeal.
II. Law and Analysis
A. Summary Judgment
In its first assignment of error, appellant contends that the trial court
erred in granting summary judgment to the city regarding its liability for the
demolition costs.
Under Civ.R. 56(C), summary judgment is appropriate when (1) there
is no genuine issue of material fact, (2) the moving party is entitled to judgment as
a matter of law, and (3) after construing the evidence most favorably for the party
against whom the motion is made, reasonable minds can only reach a conclusion
that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio
St.3d 367, 369-370, 696 N.E.2d 201 (1998); Temple v. Wean United, Inc., 50 Ohio
St.2d 317, 327, 364 N.E.2d 267 (1977). We review the trial court’s judgment de novo,
using the same standard that the trial court applies under Civ.R. 56(C). Grafton v.
Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, we
stand in the shoes of the trial court and conduct an independent review of the record.
On a motion for summary judgment, the moving party carries the
initial burden of demonstrating specific facts in the record that demonstrate its
entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,
662 N.E.2d 264 (1996). If the moving party meets this burden, the nonmoving party
has a reciprocal burden to point to evidence of specific facts in the record
demonstrating the existence of a genuine issue of material fact for trial. Id. at 293.
Summary judgment is appropriate if the nonmoving party fails to meet this burden.
Id.
Appellant contends that the trial court erred in granting summary
judgment to the city because the Notice did not meet the procedural due process
standards set forth in R.C. 119.07, which requires that
[n]otice shall be given by registered mail, return receipt requested, and
shall include the charges or other reasons for the proposed action, the
law or rule directly involved, and a statement informing the party that
the party is entitled to a hearing if the party requests it within thirty
days of the time of mailing of the notice.
Appellant asserts that the Notice was deficient because “it not only
failed to inform [it] of all rules and laws involved in the violation and penalties, but
actually misrepresented the nature of the liability in question.” Appellant’s brief, p.
8. Appellant argues that the statement in the Notice that “[a]ny and all costs
incurred by the city for the demolition of the building(s) shall be paid by the
owner(s) of record” would lead “any reasonable person” to conclude that liability for
demolition was limited to property owners at the time of demolition and did not
include ongoing liability for all owners in the chain of title.
Appellant contends that the trial court erred in granting summary
judgment to the city because “R.C. Chapter 119 requires that a party be fully
informed of the nature of a decision made by an underlying governmental body so
that an affected party can be capable of exercising its procedural rights, including its
right to appeal,” and that “[a] penalty that results from a deficient notice under R.C.
119 is void.” Appellant’s brief, p. 7. It asserts that “the Notice did not comply with
R.C. 119.07 and was thus invalid, making any judgment against it a nullity.” Id.
Before considering the merits of appellant’s arguments, we must
address the magistrate’s order finding that appellant’s brief in opposition challenged
the constitutionality of C.C.O. 3103.09(k)(2) and the trial court’s judgment that
appellant’s challenge to C.C.O. 3103.09(k)(2) necessarily failed because appellant
had not raised its constitutional as-applied challenge to the ordinance before an
administrative body. The magistrate and the trial court’s conclusions were
incorrect.
It is unclear why the magistrate and trial court concluded that
appellant was challenging the constitutionality of C.C.O. 3103.09(k)(2). The only
argument appellant made in its brief in opposition regarding C.C.O. 3103.09(k)(2)
was that the joint and several liability referenced in the ordinance was statutorily
limited by R.C. 2307.22, such that appellant could be held responsible for only 20%
of the demolition costs under Ohio’s joint and several liability laws. Appellant made
no argument whatsoever regarding the constitutionality of C.C.O. 3103.09(k)(2).
Rather, appellant argued that the Notice was insufficient under the
due process requirements of R.C. Chapter 119 because it did not give appellant
effective notice of the rules and laws involved in the violation and notice that all
chain of title owners from the date of the Notice through the date of demolition
would be held liable for demolition costs. That was not an as-applied challenge to
the constitutionality of C.C.O. 3103.09(k)(2), as the magistrate and trial court
erroneously determined; it was an argument that the Notice was procedurally
defective under R.C. 119.07 and that in issuing an allegedly defective Notice, the city
had violated appellant’s procedural due process rights. Accordingly, the trial court
erred in holding that appellant’s due process argument failed because appellant had
not first raised the as-applied challenge to the constitutionality of C.C.O.
3103.09(k)(2) in an appeal of the Notice.2
Nevertheless, upon de novo review, we find no merit to appellant’s
argument that the Notice was procedurally defective. “The essence of procedural
due process is the right to receive reasonable notice and a reasonable opportunity to
be heard.” Huntington Natl. Bank v. 5777 Grant, L.L.C., 8th Dist. Cuyahoga No.
101412, 2014-Ohio-5154, ¶ 16, citing Sprouse v. Miller, 4th Dist. Lawrence No.
07CA32, 2008-Ohio-4384, ¶ 13. “Due process of law implies, in its most
comprehensive sense, the right of the person affected to be heard, by testimony or
otherwise, and to have the right of controverting, by proof, every material fact which
bears on the question of right in the matter involved.” Williams v. Dollison, 62 Ohio
St.2d 297, 299, 405 N.E.2d 714 (1980). What constitutes due process depends on
the facts of each case. Huntington Natl. Bank at id., citing Ohio Assn. of Pub. School
2 Ordinances may be constitutionally challenged on their face or as applied. Parties
advancing an as-applied challenge must do so at their first available opportunity and
failure to do so results in waiver. Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-
2187, 970 N.E.2d 898, ¶ 20. Because appellant raised a procedural due process issue and
not an as-applied challenge to the constitutionality of an ordinance, it was not required
to first raise the issue with the city’s Department of Building and Housing.
Emp., AFSCME, AFL-CIO v. Lakewood City School Dist. Bd. of Edn., 68 Ohio St.3d
175, 177, 624 N.E.2d 1043 (1994).
Initially, we find that despite appellant’s assertion otherwise, the
notice and hearing provisions set forth in R.C. Chapter 119 do not apply to this case.
“R.C. Chapter 119 applies only to state agencies.” (Emphasis sic.) Crawford-Cole v.
Lucas Cty. Dept. of Job & Family Servs., 121 Ohio St.3d 560, 2009-Ohio-1355, 906
N.E.2d 409, ¶ 38. See also Karrick v. Findlay School Dist. Bd. of Edn., 174 Ohio St.
467, 469, 190 N.E.2d 256 (1963) (“only agencies at the state level of government are
covered by R.C. Chapter 119.”). Accordingly, appellant’s reliance on the
requirements of R.C. Chapter 119 as support for its argument that the city’s Notice
violated its due process rights is misplaced.
Instead, R.C. Chapter 715 and C.C.O. 1303.09 are applicable to
appellant’s due process argument. 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.
R.C. 715.261 allows municipal corporations to collect the costs of
abatement activities, including “[r]emoving, repairing, or securing insecure, unsafe
structurally defective, abandoned, deserted, or open and vacant buildings or other
structures” and the “abatement of any nuisance.” R.C. 715.261(B) codifies the due
process and notice requirements needed for “the removal and repair of insecure,
unsafe, or structurally defective buildings or other structures” as follows:
At least thirty days prior to the removal or repair of any insecure,
unsafe, or structurally defective building, the municipal corporation, or
its agent * * * shall give notice by certified mail of its intention with
respect to such removal or repair to the holders of legal or equitable
liens of record upon the real property on which such building is located
and to owners or record of such property.
Pursuant to its authority to provide for the inspection and removal of
unsafe buildings, the city enacted building code ordinances, including C.C.O.
3103.09, which govern the city’s identification and abatement of nuisance real
properties. Under C.C.O. 3103.09(b), “all unsafe structures or conditions are
declared to be a public nuisance” that “shall be abated by correction of the violations
to the minimum standards” of the city’s ordinances, rules and regulations. Under
C.C.O. 3103.09(e), when the city finds a building or structure to be a public nuisance,
it “shall forward by certified mail to the owner * * * a written notice of violation
stating the defects in the building.” “The notice of violation shall require the owner
within a stated time to abate the nuisance condition of the building * * *.” In
addition, “the notice shall state that if the nuisance is not abated within the required
time that the [city] may take appropriate action to repair, remove, or otherwise abate
the public nuisance and that the owner, agent or person in control shall be
responsible for the costs.” C.C.O. 3103.09(g) provides for a right to appeal from the
notice of violation and that “any notice * * * shall automatically become a final order
if a written notice of appeal before the Board is not filed in the office of the Board
within the time set forth in the notice from the [city.]” Under C.C.O. 3103.09(h), the
city is authorized to “demolish remove, or abate” a public nuisance if the owner fails
to comply with the notice of violation.
The Notice sent by certified mail to appellant clearly stated that under
C.C.O. 3103.09, 367.04, 369.19, and 369.21, the city had declared the Property to be
a public nuisance and that pursuant to those ordinances, the city “will summarily
abate said public nuisance * * * by demolition of the structure” if the listed violations
were not “entirely corrected” by September 21, 2012. The Notice also advised
appellant that “[y]ou have the right to appeal this notice. If you wish to appeal, you
must file a written appeal within 30 days of the issuance date on this notice.” The
Notice then listed the address at which appellant should file its appeal. Finally, the
Notice advised appellant that “[f]ailure to comply with this notice shall result in the
demolition of the building(s). Any and all costs incurred by the city for the
demolition of the building(s) shall be paid by the owner(s) of record.”
It is apparent that the Notice complied with the requirements of R.C.
715.261(B) and C.C.O. 3103.09. There is no question that the Notice advised
appellant of “all the rules involved in the violation and penalties” and that it had the
right to request a hearing within 30 days of the Notice.
The Notice also adequately advised appellant that it would be liable
for the costs of demolition. Appellant’s argument that the Notice was affirmatively
misleading and thus a denial of its procedural due process rights because the Notice
led it to believe that only owners of the Property at the time of demolition would be
liable for demolition costs is wholly without merit. Significantly, appellant offered
no evidence whatsoever to support this assertion. More importantly, the Notice was
clear: costs for the demolition would be paid by “the owner(s) of record” if the code
violations were not timely abated and demolition became necessary. Appellant was
“the owner of record” when it received the Notice. Thus, the only reasonable
interpretation of the Notice is that appellant was to pay the city’s demolition costs if
it did not abate the code violations cited in the Notice. Although the Notice did not
specify a date for demolition, it clearly informed appellant that the city would seek
to recover its demolition costs from appellant, as the “owner of record” when the
Notice was issued, when the demolition occurred. The fact that the city is entitled
under C.C.O. 3103.09(k) to collect demolition costs from all owners who appear in
the chain of title from the notice of violation until the time of demolition does not
affect the meaning of the Notice with respect to appellant; as the “owner of record”
when the Notice was issued, appellant would be liable for the city’s demolition costs
when demolition occurred. Accordingly, the Notice did not violate appellant’s
procedural due process rights.
In its motion for summary judgment, the city met its initial burden of
pointing to evidence in the record establishing that it was entitled to summary
judgment against appellant, i.e., the Notice was issued in compliance with the due
process requirements of R.C. 715.261 and C.C.O. 1303.09, appellant received the
Notice, appellant was the owner of record when the Notice was issued, the code
violations were never abated, and the city demolished the Property at its own costs.
Appellant failed to produce any evidence regarding either the
adequacy of the Notice or the city’s entitlement to judgment against appellant.
Accordingly, it did not meet its burden of “pointing to specific facts in the record
demonstrating a genuine issue of material fact for trial,” Dresher, 75 Ohio St.3d at
293, 662 N.E.2d 264, and therefore, the trial court properly granted summary
judgment to the city against appellant with regard to appellant’s liability. The first
assignment of error is overruled.
B. Joint and Several Liability
After finding appellant liable, the trial court entered judgment against
appellant for $32,079.66, the entire amount of the city’s costs related to the
demolition of the Property. In its second assignment of error, appellant contends
that even if it is liable, the trial court erred in entering judgment against it for the
entire amount of the city’s demolition costs because under Ohio’s joint and several
liability law set forth in R.C. 2307.22, it can be liable for at most only 20% of the
costs.
C.C.O. 3103.09(k)(2) permits any and all owners of a building or
structure “who appear in the chain of title from the time of receipt of a notice of
condemnation until demolition of the building or structure” to be held “jointly and
severally responsible for all costs and expenses” incurred by the city relating to the
demolition and the prosecution of collection of said costs and expenses.
Appellant contends that because the term “jointly and severally
responsible” is not defined in C.C.O. 3103.09, this court must apply R.C.
2307.22(A)(2) regarding joint and several liability, which provides that in a tort
action, where the trier of fact determines that one of several joint defendants is less
than 50 percent responsible for the plaintiff’s injury, that defendant is liable to the
plaintiff for only his or her proportionate share of the damages. Appellant argues
that under the statute, it can be held liable for 100 percent of the city’s damages only
if it were more than 50 percent responsible for the damages. It contends that in its
responses to appellant’s requests for admissions, the city admitted that appellant
was only 20 percent liable because it admitted appellant owned the Property for 20
percent of the time it was condemned and because the city admitted that the three
entities who owned the Property after appellant likewise failed to abate the code
violations.
Appellant’s argument fails for several reasons. First, this action is not
a tort action. As set forth in bold typeface in paragraph 18 of the complaint, “This
lawsuit is an attempt to collect a debt. Any and all information obtained
will be used for that purpose.” Thus, R.C. 2307.22, which applies to tort
actions, is not applicable to this case.
Moreover, the city’s responses to appellant’s requests for admissions
did not admit, as appellant contends, “that appellant has no more liability than any
other defendant.” Appellant’s brief, p. 12. Likewise, the city did not admit that
appellant’s ownership of the Property for 20 percent of time it was condemned
equates to 20 percent liability. The city’s responses merely acknowledged that
appellant owned the Property for 20 percent of the time it was condemned and that
three entities after appellant likewise failed to abate the nuisance.
Furthermore, under C.C.O. 3103.09(k)(2), there is no relationship
between the time owners own the Property during the period of condemnation and
their liability for demolition costs. In construing the ordinance, this court has held
that “a municipality ‘may recoup its costs related to the abatement of the nuisance
or the demolition of the condemned structure from any and all owners of the
premises who appear in the chain of title.’” Cleveland v. Whitmore, 8th Dist.
Cuyahoga No. 108893, 2020-Ohio-3670, ¶ 24, quoting Cleveland v. CapitalSource
Bank, ex rel. AEON Fin. L.L.C., 2019-Ohio-1990, 136 N.E.3d 884, ¶ 23 (8th Dist.).
Thus, pursuant to Whitmore and CapitalSource Bank, liability for demolition costs
in not limited by the amount of time an owner owns the property between
condemnation and demolition; each owner may be held 100 percent liable.
Appellant contends that Whitmore and CapitalSource Bank are not
applicable to this case, however, because neither considered the argument raised
here, which is that the formula for joint and several liability found in R.C. 2307.22
should be used when applying C.C.O. 3103.09(k)(2). But there would be no reason
for this court to apply R.C. 2307.22 to the city’s debt collection actions for demolition
costs because R.C. 2307.22 applies only to tort actions. Furthermore, both
Whitmore and CapitalSource Bank implicitly rejected any application of R.C.
2307.22 by holding that under C.C.O. 3103.09(k), the city may recover all of its costs
related to the demolition from any owner in the chain of title. Thus, they held that
“jointly and severally responsible” under C.C.O. 3103.09(k)(2) means that each
owner can be found to be 100 percent liable for the demolition costs.
Such an interpretation of joint and several liability for purposes of
C.C.O. 3103.09(k)(2) only makes sense. Because the city should not be forced to
bear the costs of demolishing privately-owned abandoned and dilapidated buildings
that leave neighborhoods blighted and their residents unsafe, this court has
appropriately interpreted C.C.O. 3103.09(k) to mean that the city may collect 100
percent of its demolition costs from any owner that appears in the chain of title
between the notice of violation and the time of demolition.
The trial court correctly determined that appellant could be held 100
percent liable under C.C.O. 3103.09(k)(2) for all of the city’s costs associated with
demolition of the Property. Accordingly, the second assignment of error is
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cleveland Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR