Opinion
Case No. 2018-01437PR
03-24-2021
CITY OF CLEVELAND Plaintiff v. TUZZAN LTD. Defendant/Third-Party Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Third-Party Defendant
DECISION
{¶1} Before the Court are two motions: (1) a motion for summary judgment filed by Plaintiff City of Cleveland (City) and (2) and a motion for summary judgment filed by Third-Party Defendant Ohio Department of Transportation (ODOT). Defendant/Third-Party Plaintiff Tuzzan Ltd. (Tuzzan) opposes both summary-judgment motions.
{¶2} The summary-judgment motions primarily raise these issues: (1) whether the City is entitled to recover damages for nuisance abatement concerning certain property located in Cleveland, Ohio, (2) if the City is entitled to recover damages for nuisance abatement, what is the amount of damages to which the City may be entitled, and (3) if the City may recover damages for nuisance abatement, whether Tuzzan or ODOT, or both, should be held liable for the cost of the abatement.
{¶3} For reasons set forth below, the Court grants a summary judgment in favor of the City on the issue of liability. The Court denies ODOT's summary-judgment motion.
I. Background and Procedural History
{¶4} In May 2016 ODOT petitioned the Cuyahoga County Probate Court for the purpose of appropriating real property located at 3784 East 75th Street, Cleveland, Ohio, and fixing compensation so that ODOT could improve a portion of U.S 10 in Cuyahoga, County. About seven months later—on December 29, 2016—the Cuyahoga County Probate Court issued an Agreed Settlement and Judgment Entry wherein the court made several findings and determinations, including (1) issuing a default judgment against a former tenant of the property, (2) granting ODOT's petition and awarding full compensation in the amount of $22,000, (3) ordering that all right, title and interest, in fee simple was vested in ODOT, (4) ordering that those property interests "are hereby duly vested in the State of Ohio as of September 21, 2016 upon the docket of the Cuyahoga County Probate Court," (5) ordering that ODOT "shall take the property free and clear of all claims of the defendant fee owner and any person or persons having or claiming an interest therein arising prior to September 21 2016," and (5) ordering the county auditor to transmit a certified copy of the entry with proper endorsements to the county recorder for the purpose of promptly recording a certified copy of the entry with proper endorsements in the deeds of the county.
Exhibit A, Tuzzan Response to City's Motion for Summary Judgment.
Exhibit C, Tuzzan Response to City's Motion for Summary Judgment.
Id.
Id.
{¶5} Meanwhile, about September 12, 2016, the City determined that a structure on the property constituted an emergent public nuisance. On September 20, 2016, the City, through a private abatement contractor, performed some abatement work on the structure.
{¶6} Tuzzan's counsel and ODOT's legal counsel were advised of the City's declaration of an emergency public nuisance in early October 2016. On October 7, 2016, the City, through a private demolition contractor, abated the nuisance by demolishing the structure.
Exhibits B-1, and B-2, Tuzzan Response to City's Motion for Summary Judgment.
{¶7} The City issued an invoice to Tuzzan in the amount of $1,800.00 for the abatement work of September 20, 2016. And the City issued an invoice to Tuzzan in the amount of $19,188.73 for the demolition work of October 7, 2016.
{¶8} On May 4, 2018, the City brought a complaint against Tuzzan in the Cleveland Municipal Court, Housing Division, for collection of demolition and other costs. The City sought damages against Tuzzan in the amount of $26,289.91, which the City itemized as follows:
(1) $2,304.00 ($1,800, plus "collection costs/attorney fees" of $504.00, plus interest at the statutory rate from September 20, 2016, and the costs of the action), and
(2) $23,985.91 ($19,188.73, plus "collection costs/attorney fees" of $4,797.18; plus interest at the statutory rate from October 7, 2016, and the costs of this action).
{¶9} After the City sued Tuzzan, Tuzzan counterclaimed against the City. Tuzzan filed a third-party complaint against ODOT. Tuzzan also sought a declaration that Tuzzan bears no liability for any alleged charges related to the Property incurred on or after September 21, 2016.
{¶10} On petition for removal, Tuzzan removed the case to this Court. ODOT moved to strike the removal petition and ODOT moved to dismiss Tuzzan's third-party complaint. The Court denied ODOT's motions.
{¶11} On January 29, 2021, ODOT moved for a summary judgment in its favor as to Tuzzan's claims against ODOT. ODOT maintains that, as a matter of law, it is entitled to a summary judgment (1) because under Ohio law a right to recover contribution applies only to tort actions and Tuzzan's claim does not concern a tort action, and (2) an implied-contract-of-indemnity theory is recognized in circumstances involving related tortfeasors, which in this instance does not apply because the City's right to recover demolition costs is based on a City ordinance—not tort law.
{¶12} A few days after ODOT moved for summary judgment—on February 3, 2021—the City moved for a summary judgment. The City maintains that a summary judgment in its favor is appropriate because (1) Tuzzan was the record owner of the property on the date of demolition, (2) the City issued a violation notice in compliance with certain City ordinances, (3) the City is entitled to attorney fees under R.C. 715.261 and Cleveland Codified Ordinances 367.08, (4) Tuzzan's counterclaim is barred by a two-year statute of limitations, (5) even if Tuzzan had timely filed a counterclaim, Tuzzan fails to state a claim upon which relief may be granted, and (6) the City is statutorily immune from Tuzzan's counterclaim.
{¶13} Tuzzan opposes both summary-judgment motions. Tuzzan does not dispute that it previously owned the property or that the City ultimately demolished the property. However, Tuzzan contends that there are several issues of material fact that, in Tuzzan's view, precludes summary judgment, including an issue whether ODOT agreed to absorb some demolition costs.
{¶14} ODOT has filed a reply wherein ODOT disputes that it agreed to absorb any demolition costs associated with the property and ODOT objects to certain evidence proffered by Tuzzan. On March 18, 2021, the City moved instanter for leave to file a reply brief in support of the City's summary-judgment motion, and, with the motion, the City contemporaneously filed a reply brief. The City re-asserts that it is entitled to a summary judgment in its favor, as a matter of law, in its reply brief.
The Court accepts the City's reply brief filed on March 18, 2021.
II. Law and Analysis
A. Legal Standard
{¶15} A summary judgment terminates litigation to avoid a formal trial in a case where there is nothing to try. Norris v. Ohio Std. Oil Co., 70 Ohio St.2d 1, 2, 433 N.E.2d 615 (1982); Schroeder v. Nationwide Mut. Ins. Co., 10th Dist. Franklin No. 92AP-1728, 1993 Ohio App. LEXIS 2319, *3 (Apr. 27, 1993). Civ.R. 56(C) "provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made." State ex rel. Grady v. State Emp. Rels. Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).
{¶16} Under Civ.R. 56 a party who moves for summary judgment "bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). A party who moves for summary judgment "must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment." Dresher at 292-293. See Civ.R. 56(C). If a party who moves for summary judgment has satisfied its initial burden, then a nonmoving party "has a reciprocal burden outlined in the last sentence of Civ.R. 56(E)." Dresher at 293. See Civ.R. 56(E) ("[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party").
Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule."
Any evidence that is not specifically listed in Civ.R. 56(C) "is only proper if it is incorporated into an appropriate affidavit under Civ.R. 56(E)." Pollard v. Elber, 2018Ohio4538, 123 N.E.3d 359, ¶ 22 (6th Dist.) However, courts "may consider other evidence if there is no objection on this basis." State ex rel. Gilmour Realty, Inc. v. City of Mayfield Hts., 122 Ohio St.3d 260, 2009Ohio2871, 910 N.E.2d 455, ¶ 17; Pollard at ¶ 22.
1. The City is entitled to a summary judgment on its complaint, as to the issue of liability, because, after the evidence is construed in favor of Tuzzan, the evidence shows that Tuzzan was the record owner of the property at the time of the City's abatement of a nuisance.
The City is entitled to a summary judgment on Tuzzan's counterclaim because the City is immune based on political subdivision immunity.
To the extent that Tuzzan suggests that the City violated its due process rights, such a constitutional claim is not cognizable this Court.
{¶17} Under Cleveland Codified Ordinances 367.08(b), "[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." And under Cleveland Codified Ordinances 367.08(a), "[an]y expenses or costs, including but not limited to attorneys fees, costs of inspection, administrative staff and support staff, property maintenance costs, court costs, title search fees, process server fees, skip tracing expenses, and costs of collection or prosecution, including discovery and deposition expenses, incurred under the provisions for demolition or boarding contained in this Housing Code shall be paid by the owner of the dwelling structure or premises."
https://codelibrary.amlegal.com/codes/cleveland/latest/cleveland_oh/0-0-0-16379 (accessed March 12, 2021).
Id.
{¶18} In December 2016, the Cuyahoga County Probate Court determined that all right, title and interest, in fee simple in the property was vested in the state of Ohio as of September 21, 2016. It follows therefore that, before September 21, 2016, all right, title and interest, in fee simple remained vested in Tuzzan. Indeed, Tuzzan does not dispute that it owned the property since 2009.
{¶19} Additionally, at the time that the City abated the nuisance, a record search would have disclosed that Tuzzan was the record owner because the probate court issued its Agreed Settlement and Judgment Entry—wherein it ordered the county auditor to transmit a certified copy of the entry with proper endorsements to the county recorder for the purpose of promptly recording a certified copy of the entry with proper endorsements in the deeds of the county—months after the City abated the nuisance. And, according to the City's evidence in support of support summary judgment, ODOT was listed as the record owner as of January 31, 2017. Thus, even after the evidence is construed in favor of Tuzzan, as required by Civ.R. 56, reasonable minds can only conclude that Tuzzan was the record owner of the property at the time that the City abated the nuisance located on the property. Under Cleveland Codified Ordinances 367.08(a) Tuzzan therefore is liable for expenses and costs, including attorney fees, associated with the abatement of the nuisance on the property that it owned.
Although the recording of a property interest may not be required to pass title in Ohio, see, e.g., Wayne Bldg. & Loan Co. v. Yarborough, 11 Ohio St.2d 195, 212, 228 N.E.2d 841 (1967) (stating that, "[i]n Ohio, a deed does not have to be recorded to pass title"), Ohio law does require the recording of instruments conveying or encumbering lands. See R.C. 5301.25. R.C. 5301.25(A) provides: "All deeds, land contracts referred to in [R.C. 317.08(A)(21)], and instruments of writing properly executed for the conveyance or encumbrance of lands, tenements, or hereditaments, other than as provided in [R.C. 5301.25(C) and R.C. 5301.23(C)], shall be recorded in the office of the county recorder of the county in which the premises are situated. Until so recorded or filed for record, they are fraudulent insofar as they relate to a subsequent bona fide purchaser having, at the time of purchase, no knowledge of the existence of that former deed, land contract, or instrument."
{¶20} Tuzzan asserts in its counterclaim that it incorporates all allegations of its Third-Party Complaint, denials, and affirmative defenses, that it is entitled to a declaration that it bears no liability for any alleged charges of Plaintiff incurred on or after September 21, 2016, and that is entitled to attorney fees incurred defending this action. (Counterclaim filed October 16, 2018.).
{¶21} Under the Political Subdivision Tort Liability Act, codified in R.C. Chapter 2744, subject to exceptions, political subdivisions are not liable generally for injury or death to persons in connection with a political subdivision's performance of a governmental or proprietary function. Glenn v. City of Columbus, 2016-Ohio-7011, 72 N.E.3d 124, ¶ 9 (10th Dist.); see R.C. 2744.02(A)(1). The Ohio Supreme Court has discussed the method of analysis for determining political subdivision immunity, stating:
R.C. Chapter 2744 sets out the method of analysis, which can be viewed as involving three tiers, for determining a political subdivision's immunity from liability. First, R.C. 2744.02(A)(1) sets out a general rule that political subdivisions are not liable in damages. In setting out this rule, R.C. 2744.02(A)(1) classifies the functions of political subdivisions into governmental and proprietary functions and states that the general rule of immunity is not absolute, but is limited by the provisions of R.C. 2744.02(B), which details when a political subdivision is not immune. Thus, the relevant point of analysis (the second tier) then becomes whether any of the exceptions in R.C. 2744.02(B) apply. Furthermore, if any of R.C. 2744.02(B)'s exceptions are found to apply, a consideration of the application of R.C. 2744.03 becomes relevant, as the third tier of analysis.Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141 (2000).
{¶22} Under Ohio law a municipal corporation's abatement of a nuisance is a governmental function. See City of Mansfield v. Bristor, 76 Ohio St. 270, 81 N.E. 631 (1907), paragraph three of the syllabus (holding that the "power given to a municipality to prevent injury or annoyance from anything offensive or unwholesome, and to cause any nuisance to be abated, is governmental"); Oliver v. City of Marysville, 3d Dist. Union No. 14-18-01, 2018-Ohio-1986, ¶ 26. See also R.C. 2744.01(C)(1)(c) (as used in R.C. Chapter 2744, a "governmental function" "means a function of a political subdivision that is specified in [R.C. 2744.01(C)(2)] or that satisfies any of the following: * * * (c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in [R.C. 2744.01(G)(2)] as a proprietary function"). The City thus meets the criteria in the first prong of the three-tiered analysis to establish political subdivision immunity.
{¶23} After reviewing exceptions to governmental immunity set forth in R.C. 2744.02(B), the Court finds that no acceptable immunity exception exists for the City's nuisance abatement in this case. See generally R.C. 2744.02(B); see also Leath v. City of Cleveland, 8th Dist. Cuyahoga No. 102715, 2016-Ohio-105, ¶ 25 (actions in tort that have come to be termed a claim for "wrongful demolition" generally are barred by political subdivision immunity). The City thus meets the criteria in the second prong of the three-tiered analysis to establish political subdivision immunity.
R.C. 2744.02(B) provides:
Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority. The following are full defenses to that liability:
(a) A member of a municipal corporation police department or any other police agency was operating a motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct;
(b) A member of a municipal corporation fire department or any other firefighting agency was operating a motor vehicle while engaged in duty at a fire, proceeding toward a place where a fire is in progress or is believed to be in progress, or answering any other emergency alarm and the operation of the vehicle did not constitute willful or wanton misconduct;
(c) A member of an emergency medical service owned or operated by a political subdivision was operating a motor vehicle while responding to or completing a call for emergency medical care or treatment, the member was holding a valid commercial driver's license issued pursuant to Chapter 4506. or a driver's license issued pursuant to Chapter 4507. of the Revised Code, the operation of the vehicle did not constitute willful or wanton misconduct, and the operation complies with the precautions of section 4511.03 of the Revised Code.
(2) Except as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.
(3) Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads, except that it is a full defense to that liability, when a bridge within a municipal corporation is involved, that the municipal corporation does not have the responsibility for maintaining or inspecting the bridge.
(4) Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code.
(5) In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to person or property when civil liability is expressly imposed upon the political subdivision by a section of the Revised Code, including, but not limited to, sections 2743.02 and 5591.37 of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon a political subdivision, because that section provides for a criminal penalty, because of a general authorization in that section that a political subdivision may sue and be sued, or because that section uses the term "shall" in a provision pertaining to a political subdivision.
{¶24} Because the City meets the criteria set forth in the second prong of the three-tiered analysis to establish political subdivision immunity, it is unnecessary to engage in an analysis of the third tier of the analysis—whether any of R.C. 2744.02(B)'s exceptions contained in R.C. 2744.03 apply in this instance. See generally State ex rel. Luken v. Corp. for Findlay Mkt. of Cincinnati, 135 Ohio St.3d 416, 2013-Ohio-1532, 988 N.E.2d 546, ¶ 25 (cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more—counsels against deciding issues rendered moot); Meyer v. UPS, 122 Ohio St.3d 104, 2009-Ohio-2463, 909 N.E.2d 106, ¶ 53. Accordingly, the Court concludes that the City is immune from Tuzzan's counterclaim based on political subdivision immunity.
{¶25} Moreover, since, as a matter of law, the City is immune based on political subdivision immunity, it is unnecessary for the Court to analyze the City's other arguments in support of the City's request for a summary judgment. See State ex rel. Luken at ¶ 25.
{¶26} Additionally, to the extent that Tuzzan suggests in its responses to the summary-judgment motions that its constitutional right to due process may have been violated based on a lack of notice, such an alleged constitutional violation is not actionable in this Court. See Jackson v. Ohio Dept. of Rehab. & Correction, 10th Dist. Franklin No. 19AP-621, 2020-Ohio-1518, ¶ 12 (determining that the Court of Claims has no subject-matter jurisdictions over alleged violations of constitutional rights); Swaney v. Bur. of Workers' Comp., 10th Dist. Franklin No. 98AP-299, 1998 Ohio App. LEXIS 5415, at *6 (Nov. 10, 1998) (Court of Claims has no jurisdiction over constitutional claims).
{¶27} In sum, the Court determines that the City is entitled to a summary judgment on the issue of liability on its complaint and on Tuzzan's counterclaim.
2. ODOT is not entitled to a summary judgment because a genuine issue of material fact exists whether Tuzzan and ODOT entered into an implied-in-fact contract concerning liability for demolition costs.
{¶28} ODOT maintains that, as a matter of law, Tuzzan is unable to establish ODOT's liability to Tuzzan because Tuzzan's third-party complaint is based on inapplicable legal concepts of contribution and indemnification that arise under tort law. In common usage, contribution may be defined as (1) "[o]ne tortfeasor's right to collect from joint tortfeasors when, and to the extent that, the tortfeasor has paid more than his or her proportionate share to the injured party, the shares being determined as percentages of causal fault," Black's Law Dictionary 416 (11th Ed. 2019), and (2) the "actual payment by a joint tortfeasor of a proportionate share of what is due." Id. And, in common usage, indemnity may be defined as "[r]eimbursement or compensation for loss, damage, or liability in tort; esp., the right of a party who is secondarily liable to recover from the party who is primarily liable for reimbursement of expenditures paid to a third party for injuries resulting from a violation of a common-law duty." Black's Law Dictionary at 918.
{¶29} Notably, the Ohio Supreme Court has discussed the difference between contribution and indemnity in Travelers Indemn. Co. v. Trowbridge, 41 Ohio St.2d 11, 321 N.E.2d 787 (1975). In Travelers Indemnity Company at paragraph two of the syllabus, the Ohio Supreme Court held: "Contribution, when it exists, is the right of a person who has been compelled to pay what another should have paid in part to require partial (usually proportionate) reimbursement and arises from principles of equity and natural justice. Indemnity, on the other hand, arises from contract, express or implied, and is the right of a person, who has been compelled to pay what another should have paid, to require complete reimbursement."
{¶30} Tuzzan contends that "there is sufficient language in the Agreed Settlement and Judgment * * * and sufficient evidence from the parties' dealings, to establish that Defendant and ODOT intended for ODOT to be responsible for any liabilities arising after ODOT took possession of the Property on September 21, 2016. This argument is especially compelling given that ODOT intended to expend its own money to demolish the structure on the Property as part of its project before Plaintiff performed the demolition. It defies logic to argue Defendant should pay for the demolition given that ODOT was prepared to pay to demolish the structure as part of its highway project before Plaintiff took the liberty of doing so. Such a result would only serve to unjustly enrich ODOT to Defendant's detriment."
{¶31} Under Ohio law an implied-in-fact contract is a recognized type of contract. See_Wissler v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 09AP-569, 2010-Ohio-3432, ¶ 31 (stating that under Ohio law there "are three recognized types of contracts: express, implied-in-fact, and implied in law"). In Wissler the Tenth District Court of Appeals explained:
An implied in fact contract arises based upon the conduct of the parties or the circumstances surrounding the transaction, either of which make it clear the parties have entered into a contractual agreement, despite the lack of a formal agreement. Fouty v. Ohio Dept. of Youth Servs., 167 Ohio App. 3d 508, 855 N.E.2d 909, 2006-Ohio-2957, ¶ 56. In order to determine whether an implied-in-fact contract exists, "'[t]he conduct and declarations of the party must be examined to determine the existence of an intent to be bound.'" Id. at ¶ 57, quoting Reali Giampetro & Scott v. Soc. Natl. Bank (1999), 133 Ohio App. 3d 844, 850, 729 N.E.2d 1259.Wissler v. Ohio Dept. of Job & Family Servs., at ¶ 31.
{¶32} Here, in an email dated October 3, 2016 between Tuzzan's counsel and an Assistant Attorney General, Tuzzan's counsel wrote: "I was unaware of this [demolition] until the City called. Is there any way we can call this off by letting them know that you are taking over anyways? I fear that if we are forced to pay for a demo, previously understanding that your client would bear responsibility for all expenses from the date of settlement and thereafter, our deal will be jeopardized."
{¶33} Construing this evidence in favor of Tuzzan, as required by Civ.R. 56, reasonable minds could conclude that a genuine issue of material fact exists whether Tuzzan and ODOT had entered into an implied-in-fact contract whereby ODOT agreed to pay demolition costs arising after September 21, 2016.
A fact "is 'material' if it 'might affect the outcome of the suit under the applicable substantive law.'" Dipenti v. Park Towers Condominium Assn., 10th Dist. Franklin No. 19AP-384, 2020-Ohio-4277, ¶ 16, quoting Mitchell v. Mid-Ohio Emergency Servs., L.L.C., 10th Dist. No. 03AP-981, 2004-Ohio-5264, ¶ 12.
3. The Court defers ruling on the amount of damages to which the City is entitled.
{¶34} In support of the City's claim for damages, the City has submitted copies of invoices sent to Tuzzan. The City also has submitted evidence (1) showing that the City is entitled to collect costs and attorney fees pursuant to R.C. 715.261 and Cleveland Codified Ordinances 3103.09, and (2) showing that legal fees in the amount of $504.00 and $4,797.18 are reasonable and customary for the work performed.
Affidavits of Ayonna Donald, dated May 1, 2018; Affidavits of Daniel J. Wodarczyk, dated April 27, 2018. See R.C. 715.261; Cleveland Codified Ordinances 3103.09.
R.C. 715.261(E) provides:
A municipal corporation may enter into an agreement with a county land reutilization corporation organized under [R.C. Chapter 1724] wherein the county land reutilization corporation agrees to act as the agent of the municipal corporation in connection with removing, repairing, or securing insecure, unsafe, structurally defective, abandoned, deserted, or open and vacant buildings or other structures, making emergency corrections of hazardous conditions, or abating any nuisance, including high weeds, overgrown brush, and trash and debris from vacant lots. The total costs of such actions may be collected by the corporation pursuant to [R.C. 715.261(B)], and shall be paid to the corporation if it paid or incurred such costs and has not been reimbursed by the owner of record at the time of the action or any other party with a recorded interest in the land.
{¶35} Since a genuine issue of material fact exists whether Tuzzan or ODOT, or both, should be held liable for demolition costs arising after September 21, 2016, the Court defers entering a ruling as to the amount of damages to which the City is entitled.
III. Conclusion
{¶36} For reasons set forth above the Court GRANTS a summary judgment in favor of the City on the issue of liability. The Court DENIES ODOT's motion for summary judgment. The Court GRANTS the City's Motion For Leave To File Reply Brief In Support Of Its Motion For Summary Judgment Filed Instanter, which was filed on March 18, 2021.
/s/_________
PATRICK E. SHEERAN
Judge
JUDGMENT ENTRY
{¶37} For the reasons set forth in the decision filed concurrently herewith, the Court GRANTS summary judgment in favor of Plaintiff City of Cleveland on the issue of liability. The Court DENIES Third-Party Defendant Ohio Department of Transportation's motion for summary judgment. The Court GRANTS Plaintiff City of Cleveland's Motion For Leave To File Reply Brief In Support Of Its Motion For Summary Judgment Filed Instanter, which was filed on March 18, 2021.
/s/_________
PATRICK E. SHEERAN
Judge Filed March 24, 2021
Sent to S.C. Reporter 4/30/21
Cleveland Codified Ordinances 3013.09(k) provides:
(1) Any and all expenses or costs, including but not limited to attorneys fees, costs of inspection, administrative staff and support staff, property maintenance costs, court costs, title search fees, process server fees, skip tracing expenses, and costs of collection or prosecution, including discovery and deposition expenses, incurred under this section relating to the demolition, repair, alteration, securing or boarding of a building or structure or for abating any other nuisance shall be paid by the owner of such building or structure, except when such expenses or costs are incurred with respect to a government or school building owned by a governmental entity or political subdivision and are funded by federal money. (2) 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, 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. In the case of a junk motor vehicle, any and all expenses or costs incurred under this section to remove the vehicle shall be paid by the person having the right of possession of the premises where the vehicle is located. https://codelibrary.amlegal.com/codes/cleveland/latest/cleveland_oh/0-0-0-19360 (accessed March 12, 2021).