COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 66912, 66929 : WINFRED H. MACKEY : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION CITY OF CLEVELAND, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 30, 1995 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court Case No. 202913 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: IRL D. RUBIN, ESQ. SHARON SOBOL JORDAN Jacobs, Rubin & Bensing Director of Law 220 Western Reserve Building BARBARA A. LANGHENRY Cleveland, Ohio 44113 RUSSELL R. BROWN, III Assistant Directors of Law For Women's Federal Savings City of Cleveland Bank: Room 106 - City Hall 601 Lakeside Avenue THOMAS J. FREEMAN, ESQ. Cleveland, Ohio 44114 HOWARD A. EISENHARDT, ESQ. 1215 Superior Avenue RICHARD G. WITKOWSKI, ESQ. Cleveland, Ohio 44114 Ulmer & Berne 1300 East Ninth Street 900 Bond Court Building Cleveland, Ohio 44114 - 2 - O'DONNELL, J.: This matter came comes before our court upon the consolidated separate appeals of the property owner, Mr. Winfred Mackey and the mortgagor, Women's Federal Savings Bank from trial court's grant of Summary Judgment in favor of defendants City of Cleveland, Councilmen William Patmon, and Scottsdale Insurance Co. The issues arose on November 9, 1989, when the city notified plaintiff Mackey, as owner, and Women's Federal, as mortgagor, that the property at 9201-03 Parkgate Ave. in Cleveland, violated the Cleveland Housing and Building Code and advised them of the city's intent to demolish the structure. While these notices informed each party of their right to appeal the demolition during the pendency of the notice, neither party undertook such an appeal. Instead, Mackey secured a rehabilitation permit, which gave him five months to make the necessary repairs to the property. Thereafter, on May 10, 1990, the city inspected the property, determined that insufficient progress had been made on correcting the violations, and voided the rehabilitation permit. One month later, on June 18, 1990, Mackey secured a second rehabilitation permit, which again delayed demolition by granting another thirty days to correct the cited violations. On the July 18, 1990 expiration date the city inspected the property and found minimal progress and substandard work. Subsequently, on July 31, 1990, the city voided Mackey's second rehabilitation - 3 - permit for non-compliance and informed Mackey and Women's Federal that the building remained condemned subject to further action, including demolition. In response, on August 10, 1990, Mackey appealed the revocation of the second rehabilitation permit to the City Board of Building Standards and Appeals, but failed to undertake appeal from either the condemnation order or the demolition notice. On August 24, 1990, nine months after first advising Mackey of its intent to demolish and before the revocation hearing, the city demolished the building. On December 28, 1990, plaintiff Mackey filed suit in Common Pleas Court naming the City of Cleveland for wrongful demolition, Councilman William Patmon for allegedly influencing and hastening the demolition, the Scottsdale Insurance Co. for wrongfully denying his homeowner's policy claims for vandalism and malicious mischief, and Women's Federal Savings Bank urging that the mortgage claims be impleaded into the case. The mortgagor answered, counterclaimed against Mackey for breach of a forbearance agreement, and cross-claimed against the city and Patmon alleging wrongful demolition and due process violations, and against Scottsdale Insurance for breach of contract. Women's Federal also filed a third-party complaint against D & S Demolition and Excavating, Inc. for wrongful demolition. In a series of rulings beginning February 3, 1992, the trial court granted summary judgment in favor of Scottsdale Insurance - 4 - Company and Councilman William Patmon. Then, on March 20, 1992 the court granted the city's motion for summary judgment, finding due process had been afforded both Mackey and Women's Federal and further finding the demolition "is not a taking for public use." Finally, on January 19, 1994, the court entered judgment on all remaining claims. Mackey assigns three separate assignments of error contending that summary judgment in favor of 1) City of Cleveland, 2) Councilman Patmon, and 3) Scottsdale Insurance Company was improperly granted. Women's Federal assigns two errors for our review urging that 1) the city is not entitled to immunity pursuant to R.C. 2744.01 and 2) demolition constituted a denial of due process. We consider the issues regarding the City of Cleveland. Mackey argues that the city's demolition of the property violated his rights of procedural due process urging that the city's claim of immunity pursuant to R.C. 2744.02 does not apply to denial of one's constitutional rights. This is essentially the argument advanced by Women's Federal in its brief. R.C. 2744.02 states generally that "[a] political subdivision is not liable in damages in a civil action for *** loss to property *** in connection with a governmental or proprietary function." and R.C. 2744.09 states "This chapter does not apply to, and shall not be construed to apply to (E) Civil claims based upon alleged violations of the constitution ***." - 5 - The essence of Mackey's and the bank's position is that the city is not entitled to immunity because procedural due process rights were denied the property owner when the city demolished the building while his matter was pending before the Board of Building Standards and Appeals. Further, Mackey cites section 367.09 of the ordinances of the city upon which he relied. "Filing of an appeal from any notice of the Commissioner shall suspend action on enforcement of such notice until the appeal is acted upon by the Board of Building Standards and Appeals. (Emphasis added.) Plaintiff believes the city has denied him procedural due process rights. Our analysis however is that plaintiff Mackey and Women's Federal were both advised of the condemnation order, and both were advised of the demolition notice. Here, the city took two actions concerning the same property: one to grant a rehabilitation permit and the other to demolish the property. Neither party ever undertook any appeal or sought any stay from the demolition notice. While it is true the city afforded the owner an opportunity to repair the property, the only issue pending before the Board of Building Standards and Appeals was the revocation of the second rehabilitation permit. Since no party undertook to stay demolition, the city properly took that action. We further find that all rights of procedural due process were afforded both appellants. Each was notified of the original condemnation, and the initial demolition order. Neither took any - 6 - action to stay the demolition. Again, when the second rehabilitation permit was revoked, both parties were again notified. Since no action was taken regarding the demolition, no constitutional rights were violated. We find no merit in these assignments of error. We have reviewed the record regarding allegations of the improper conduct of Councilman William Patmon. As the movant on a motion for summary judgment, Councilman Patmon shifted the burden to Mackey to offer evidence to support a genuine issue of material fact. See Wing v. Anchor Media, Ltd. of Texas, (19910, 59 Ohio st.3d 108. Mackey failed to produce such evidence and cannot overcome the trial court's ruling. This assigned error is without merit. Scottsdale Insurance Company carried a policy of insurance on the property. Following demolition, Mackey claimed that his loss was due to vandalism or malicious mischief, and as such, he was entitled to coverage under his homewner's policy. In this case, the City of Cleveland, in furtherance of enforcement of its building code demolished the property. The language of the policy specifically excludes any "loss resulting directly or indirectly from ordinance or law, meaning enforcement of any ordinance or law regulating the care, construction, repair or demolition of this property ***." - 7 - Hence, the trial court's grant of summary judgment was proper. Judgment affirmed. - 8 - It is ordered that appellees recover of appellant 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 common pleas 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. Exceptions. PATTON, C.J., and NAHRA, J., CONCUR. TERRENCE O'DONNELL JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .