[Cite as AMM Peric Property Invest., Inc. v. Cleveland,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99848

AMM PERIC PROPERTY INVESTMENT, INC., ET AL.

PLAINTIFFS-APPELLANTS

vs.

CITY OF CLEVELAND DEFENDANT-APPELLEE

JUDGMENT: REVERSED AND REMANDED

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 ATTORNEYS FOR APPELLANTS

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 MELODY J. STEWART, P.J.:

{¶1} Plaintiff-appellant AMM Peric Property Investment, Inc. and its principal,

Zvonimir J. Peric 1 (collectively “Peric”), owned an outbuilding located in the city of

Cleveland 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 a 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 peril 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 Appeals (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

Peric is a retired building inspector for the city. 1 resort to that process would not have been a vain act even though the buildings were

demolished. The court also ordered Peric to pay the city’s demolition costs finding that

the city had no requirement to provide him notice of an emergency demolition.

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,

,

(1980), citing State ex rel. Lieux v. Westlake,

,

(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,

,

,

.

{¶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.,

,

(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.,

,

,

, ¶ 24, citing Nemazee v. Mt. Sinai Med. Ctr.,

,

(1990). II

{¶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 Cleveland Codified

Ordinances 3103.20(e)(1), which states that “[a]n appeal may be made by any person

aggrieved, or by the head of any department or division of the City.” Its argument,

essentially, was that the city provided a right of appeal at which the board could have

reviewed the decision to condemn and demolish the buildings, Peric failed to file an

appeal after his buildings had been demolished, so he failed to exhaust his administrative

remedies.

{¶6} The difficulty with the city’s argument is that even if the board determined

that the demolition of Peric’s buildings was unjustified, Cleveland Codified Ordinances

3103.20(e)(1) does not provide the board with any ability to provide a post-deprivation

remedy under the circumstances. An administrative remedy may be inadequate “because

of some doubt as to whether the agency was empowered to grant effective relief.”

Gibson v. Berryhill,

,

,

(1973), fn. 14.

An agency may be competent to adjudicate the issue presented, but still lack authority to

grant the type of relief requested. McNeese v. Bd. of Edn. for Community Unit School

Dist. 187,

,

,

(1963).

{¶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. Peric’s due process claim under 42 U.S.C. 1983 sought monetary relief. Nothing in the

city’s ordinances authorizes the board to grant monetary relief and the city does not argue,

nor did the court find, that the board had the ability to grant monetary relief. It is true

that Cleveland Codified Ordinances 3103.20(g)(2) states that if the board reverses any

decision made by an administrative officer, the administrative officer “shall take action

immediately in accordance with such decision.” But that section says nothing about the

board’s ability to award monetary damages, much less its ability to force the city to pay

such damages when it is not otherwise authorized by ordinance to grant them. The

dissenting opinion recognizes this problem when it says that Peric can file a mandamus

action to seek just compensation, but that very suggestion demonstrates why the

administrative appeal in this case is an inadequate remedy.

{¶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,

(Oct. 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 Cleveland Codified Ordinances 3103.20(e)

constituted an adequate remedy, so we do not consider that opinion persuasive. {¶9} Apart from the court’s failure in Collins to address whether an appeal to the

board constituted an adequate remedy, is the factual distinction that the city’s demolition

of Peric’s property did not appear to have been made on an emergency basis as it was in

Collins. Cleveland Codified Ordinances 3103.09(j) permits its director of building and

housing to act on an emergency basis (i.e., without prior notice) to make safe or remove

any building or structure deemed to “involve immediate danger to human life or health.”

The city argues that this section gave it the right to demolish Peric’s buildings without

prior notice and that it did so on that basis. The undisputed facts show otherwise: the

city determined on April 9, 2009, that the outbuilding constituted an “emminent [sic]

danger and peril to human life,” but waited until April 24, 2009, to demolish it, and only

then after it knew that Peric’s contractor was applying for permits to commence repairs.

By waiting two weeks to demolish the building, the city did not appear to believe that the

building posed such an “immediate” danger to the public safety such that it could be

demolished without prior notice.

{¶10} The city’s argument that it demolished the building on an 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 Cleveland

Codified Ordinances 3103.20(e)(3). Peric disputed whether he had been given prior notice of condemnation, and argued in any event that verbal notification, if given, did not

comply with Cleveland Codified Ordinances 3103.09(e)(1) that requires the director to

give advance, written notice of condemnation.

{¶11} In addition to finding that the board lacked the ability to award monetary

damages, we likewise 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 board

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,

,

(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 Civ.R. 56(C); Dresher v. Burt,

,

(1996). It was thus required to show more than the availability of an administrative appeal — it had to establish for purposes of summary judgment that the

administrative appeal provided by Cleveland Codified Ordinances 3103.20(e) constituted

an adequate remedy; that is, the appeals process could compensate Peric in the event the

city was found to have wrongfully taken Peric’s property. The city failed to carry its

burden of establishing its right to judgment as a matter of law on the affirmative defense

of exhaustion of administrative remedies, so the court erred by granting judgment on that

basis. Likewise, summary judgment in favor of the city for demolition costs must be

reversed.

{¶13} This cause is reversed and 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 appeal.

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

Appellate Procedure.

MELODY J. STEWART, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., CONCURS;

KATHLEEN ANN KEOUGH, J., DISSENTS WITH SEPARATE OPINION KATHLEEN ANN KEOUGH, J., DISSENTING:

{¶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 action. Noernberg v.

Brook Park,

,

(1980), citing State ex rel. Lieux v.

Westlake,

,

(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

disputes without the premature need for judicial intervention. See Nemazee v. Mt. Sinai

Med. Ctr.,

,

(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 disagree 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 aware 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

factual record could have been established before the board, and the board could have made the determination whether the condemnation order and subsequent demolition was

proper and properly declared an emergency. The post-deprivation hearing affords

property owners due process to challenge the condemnation order and demolition of their

property when it is done so on an emergency basis. See generally Collins, N.D.Ohio No.

1:11CV221,

, *15 (Oct. 24, 2012); Babandi v. Allstate

Indemn. Ins. Co., N.D. Ohio No. 1:07CV329,

, *13-14

(Mar. 31, 2008).

{¶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,

, citing Florian v. Bd. of Cty. Commrs. of Hamilton Cty., 1st Dist.

Hamilton No. C-800843 (Aug. 5, 1981), unreported; Huelsmann v. State,

,

(10th Dist. 1977); State ex rel. Levin v. Sheffield Lake,

,

,

; see also Silver v. Franklin Twp.,

(6th Cir. 1992). {¶18} All of these facts could have been established in an administrative appeal

and prior to judicial intervention. Accordingly, I would find that the trial court was

correct in granting summary judgment in favor of the city.