COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69915 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION W. E. DAVIS COMPANY : and : SUPERIOR DEMOLITION & EXCAVATING : CO. : : Defendants-appellants : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 18, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 263,949 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: DENNIS A. MATEJKA Assistant Law Director City of Cleveland Room 106 City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 For defendant-appellant CHRISTOPHER L. GIBBON W. E. Davis Company: Attorney at Law 1300 Terminal Tower Cleveland, Ohio 44113 (Cont.) APPEARANCES: (Continued) For defendant-appellant GREGORY W. HAPP Superior Demolition Attorney at Law & Excavating Co. : 238 West Liberty Street Medina, Ohio 44256 TIMOTHY E. McMONAGLE, J.: Defendant W. E. Davis Company (hereafter referred to as "Davis") appeals from the order of the trial court which awarded summary judgment to plaintiff City of Cleveland in the city's action for recovery of emergency demolition costs. Davis also appeals from the order of the trial court which granted summary judgment to the city and third-party defendant Superior Demolition and Excavating, Inc. (hereafter referred to as "Superior") on Davis's claims against them for conversion and other causes of action. For the reasons set forth below, we affirm both orders. On January 11, 1994, the city filed this action against Davis seeking recovery of $56,381.97, plus administrative costs, which it paid to Superior for the emergency demolition of part of a structure located at 2464 West 27th Street. The city alleged that in February, 1990, it determined that the structure constituted a public nuisance. It issued Notices of Condemnation Demolition to Davis in compliance with the Codified Ordinances of the City of Cleveland. Thereafter, on September 25, 1993, a fire occurred at the property. The city then determined that the site presented an immediate danger to the community, and it retained Superior to demolish part of the structure. For its answer, Davis maintained that in 1987, it entered into a land installment contract for the sale of the property and that it was, therefore, not responsible for payment of demolition costs. - 4 - Davis also asserted a counterclaim against the city and a third- party complaint against Superior, alleging that they removed steel and other salvageable materials from the premises and that such conduct constituted an unlawful taking, conversion and waste upon the premises. In its reply to the counterclaim, the city asserted, inter alia, that Davis had failed to exhaust administrative remedies and that it was immune from liability under R.C. Chapter 2744. In its answer to the third-party complaint, Superior asserted that Davis was fully compensated for all salvageable property since there was a set-off for the value of such property from the demolition costs. On May 23, 1995, the city moved for summary judgment and demonstrated that the property was condemned in February, 1990, pursuant to the requirements of the Cleveland Codified Ordinances. Davis was given notice of the condemnation but failed to appeal the condemnation order to the Board of Building Standards and Appeals. Following the 1993 fire at the premises, the fire department requested assistance from the city in removing a por-tion of the structure which then presented a hazard. Davis was then notified that the city intended to proceed with demolition of part of the structure, but it did not file an administrative appeal or other action to prevent the partial demolition. Superior also moved for summary judgment, asserting that it did remove salvage steel from the premises in the demolition process. It established, however, that it gave Davis a credit of - 5 - $31,582.84 for the salvaged steel in calculating its demolition costs, less the costs of sorting the steel from other debris and transporting it. In opposition, Davis maintained that it was not liable to the city for the demolition costs since it had entered into a land installment contract sale for the property. Wilfred E. Davis, President of Davis, averred that the steel which Superior removed from the property was valued at $100,000, or almost twice the cost of demolition. On August 1, 1995, the trial court granted the city's motion for summary judgment on its claim but reserved ruling on Davis's counterclaim and its third-party claim against Superior. Thereaf- ter, the city and Superior moved for reconsideration. The court granted these motions and entered final judgment for the city and Superior on November 3, 1995. Davis now appeals and assigns four errors for our review. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN GRANTING CLEVELAND'S AND SUPERIOR'S MOTIONS FOR RECONSIDERATION (NOVEMBER 3, 1995 ORDER). Within this assignment of error, Davis maintains that the motions for reconsideration should have been denied because they did not bring to the court's attention an obvious error or any - 6 - factual or legal issue that was not previously presented to the court. This claim lacks merit. In Pitts v. Department of Transportation (1981), 67 Ohio St.2d 378, 379-380, the supreme court noted that pursuant to Civ.R. 54(B), interlocutory orders "are subject to revision at any time before the entry of judgment adjudicating the claims and the rights and liabilities of all the parties" and that a motion for reconsideration is the proper vehicle for obtaining relief after interlocutory orders. See, also, 2 Baldwin's Ohio Civil Practice (1988), 17, T 47.03 ("[I]t is well settled that a trial court has considerable discretion in deciding whether to reconsider its decision prior to the filing of a journal entry or judgment.") Accord Gill v. Justice (Oct. 22, 1981), Franklin App. No. 81AP- 413, unreported. In short, a trial court may reconsider its prior interlocutory orders at any time before the entry of final judg- ment, either sua sponte or upon motion. Fidelity & Guaranty Underwriters, Inc. v. Aetna Casualty & Surety Co. (June 30, 1993), Lucas App. No. L-92-024, unreported. Davis maintains, however, that the city and Superior were required to demonstrate that there was an obvious error in the trial court's initial denial of its motion or to present a new legal or factual issue to the trial court in order to obtain reconsideration. This claim is without merit. In Fidelity & Guaranty Ins. Underwriters, Inc. v. Aetna Casualty & Surety Co., supra, the court explained: - 7 - The cases on which appellants rely in fash- ioning such a test are cases interpreting App.R. 26. Although there is no counterpart to App.R. 26 in the Civil Rules that expressly recognizes a motion for reconsideration, its viability as a procedural vehicle for obtaining relief in the trial court from interlocutory orders is recognized in Ohio *** and requests for reconsideration of interlocutory orders in the trial court "*** may be entertained at the discretion of the court ***." LaBarbera v. Batsch (1962), 117 Ohio App. 273, 276, 182 N.E.2d 632. (Citations omitted). The first assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN GRANTING CLEVELAND'S AND SUPERIOR'S MOTIONS FOR SUMMARY JUDGMENT BECAUSE SUBSTANTIAL ISSUES OF MATERIAL FACT EXISTED (NOVEMBER 3, 1995 ORDER). Here, Davis asserts that there were genuine issues of materi- al fact regarding: (1) whether it, as vendor of the property under a land installment contract, had an opportunity to appeal the 1990 condemnation order or the 1993 order for emergency demolition; and (2) the value of the property removed from the premises. As to the first of these issues, R.C. 715.26 provides in relevant part as follows: Any municipal corporation may: * * * (B) Provide for the inspection of build- ings or other structures and for the removal and repair of insecure, unsafe, or structurally defective buildings or other structures. At least thirty days prior to - 8 - the removal or repair of any insecure, unsafe, or structurally defective building, the municipal corporation 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 of record of such property. The owners of record of such property or the holders of liens of record upon such property may enter into an agreement with the municipal corporation to perform the removal or repair of the insecure, unsafe, or structurally defective building. If an emergency exists, as determined by the municipal corporation, notice may be given other than by certified mail and less than thirty days prior to such removal or repair. ***. (Emphasis added.) Section 3103.08(f) of the Cleveland Building Code provides for the following notice where demolition is planned within the city: The Commissioner [of Building] shall further give written notice informing the owner or agent, mortgagee of record, and lien holders of record of the city's intention to repair or rehabilitate or demolish and remove the unsafe building or structure, at least 30 days prior to such intended action by the City. However, in cases of emergency *** less than 30 days notice may be given. In Solly v. Toledo (1967), 7 Ohio St.2d 16, the supreme court set forth the standards that must be met before a building may be razed as a public nuisance. Paragraphs three and four of the syllabus of Solly, supra, provide: 3. Anyone who destroys or injures private property in abating what legislative or ad- ministrative officials have determined to be a public nuisance does so at his peril, where there has been neither a previous judicial determination that such supposed nuisance is a public nuisance nor even an opportunity - 9 - provided to the owner for an administrative hearing (with a judicial review thereof) on the question as to whether there is a public nuisance. 4. In such an instance, when sued by the owner, the one destroying the property may be held liable for damages caused by its de- struction unless he alleges and proves and the trier of the facts finds that what he destroyed was a public nuisance and that its destruction was reasonably necessary for abatement of that nuisance. See, also, Shimola v. Cleveland (1989), 65 Ohio App.3d 457, 460- 461. Finally, it is a well-established principle of Ohio law that prior to seeking court action in an administrative matter, the party must exhaust the available avenues of administrative relief through administrative appeal. See, generally, Noernberg v. Brook Park (1980), 63 Ohio St. 2d 26, 29. In this instance, it is undisputed that following the 1990 condemnation order, there was prior notice to Davis with opportu- nity for an administrative hearing under Chapter 3103 of the Codified Ordinances. It is also undisputed that following the fire at the property in 1993, Davis was again given notice of the city's intention to have a portion of the property demolished as an emergency measure. Finally, it is undisputed that after being charged with the demolition costs, Davis could have pursued any administrative remedies under Section 3103 of the Cleveland Codified Ordinances but failed to do so. Davis does not deny receiving notice of the 1990 condemnation order and does not deny - 10 - receiving at least two days' advance notice of the partial demoli- tion. In his affidavit, Wilfred E. Davis asserted that he did not appeal the initial condemnation order "because it was Mr. Staten's responsibility under the land contract." (Emphasis added). A dispute regarding responsibility for demolition costs does not create a genuine issue of material fact regarding lack of opportunity to contest the demolition order. The city clearly gave Davis notice of the demolition order and the planned emergency demolition of part of the structure, as required by R.C. 715.26 and Section 3103.08(f) of the Cleveland Codified Ordinances. Davis, therefore, had ample opportunity to file proceedings to challenge the city's determinations. Further, under the codified ordinances, it had a legal right to do so and, in light of Davis's retention of steel and other items at the property, it had an incentive to do so. In short, there was no failure of reasonable notice in this instance, only a failure to act upon that notice. Accordingly, the trial court correctly determined that Davis's action against the city cannot be maintained. Davis further asserts that the city waited only forty-eight hours to perform the emergency demolition, yet had promised that it would wait seventy-two hours. It is well settled, however, that estoppel will not lie as against a municipality in the exercise of its governmental functions. Westerville v. Kuehnert (1988), 50 Ohio App.3d 77, 83. This portion of the assigned error lacks merit. - 11 - Proceeding to the issue of the value of the property, it is clear that summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judg- ment as a matter of law. Civ. R. 56(C); Bram v. Cleveland (1993), 97 Ohio App.3d 718, 722. In this instance, Wilfred E. Davis averred that the steel which Superior removed was valued at approximately $100,000 and that other personalty was removed during the demolition. While Davis's assertion here is suspect in light of language in the land installment contract which contemplates the purchaser disposing of Davis's scrap and personalty if not removed after April, 1988, we consider it as we must in light of the summary judgment standard. Superior's evidentiary materials indicated that the steel was valued at $31,582.84, less $20,800 for trucking costs, and that this amount was given as a credit against the demolition costs. Although these conflicting values appear to create a genuine issue of material fact, it is clear that Wilfred Davis's estimate of value did not address any of the costs of recovery of the steel, separation from the other debris, and costs of transportation to a salvage yard. In addition, he rendered no opinion regarding the actual costs of the partial demolition. Davis, therefore, failed to create a genuine issue of material fact regarding whether he was given proper credit for the steel in relation to the demolition costs. - 12 - In any event, it is undisputed that Davis did not file any administrative proceedings to dispute the costs of demolition. Under Section 3103.20(e)(1) of the codified ordinances, however, Davis was a "person aggrieved" and could have appealed the cost in the administrative appeal process. Failure to do so precludes this action. This portion of the assigned error lacks merit. The second assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO CLEVELAND ON ITS CLAIM FOR DEMO- LITION COSTS BECAUSE AS A MATTER OF LAW DAVIS WAS NOT RESPONSIBLE FOR THE DEMOLITION COSTS AS IT WAS MERELY THE VENDOR OF A LAND INSTALLMENT CONTRACT (AUGUST 1, 1995 AND NOVEMBER 3, 1995 ORDERS). Davis next complains that as the vendor under a land install- ment contract, it is not responsible for the costs of demolition. R.C. 715.261 authorizes a municipality to recover the costs of demolition and provides: (B) A municipal corporation may collect the total cost of removing, repairing, or securing insecure, unsafe, structurally defective, abandoned, deserted, or open and vacant buildings or other structures, of making emergency corrections of hazardous conditions, or of abating any nuisance by any of the following methods: (1) The clerk of the legislative authority of the municipal corporation may certify the total costs, together with a - 13 - proper description of the lands to the county auditor who shall place the costs upon the tax duplicate. The costs are a lien upon such lands from and after the date of entry. The costs shall be collected as other taxes and returned to the municipal corporation. (2) The municipal corporation may com- mence a civil action to recover the total costs from the owner. (Emphasis added.) Similarly, Section 3103.09(j) provides as follows: Any and all expenses or costs incurred under this section for the removal, repair, alter- ation, securing or boarding of a building or structure shall be paid by the owner of such building or structure ***. Notwithstanding the method of collection set forth in this subsection, the Director of Law may take any action necessary to collect the costs of demolition or boarding from the owner or other responsible party. Thus, pursuant to this statute, the city is authorized to recover demolition costs from the owner of record. Springfield v. O'Sesco, Inc. (Dec. 28, 1994), Clark App. No. 94-CA-45, unreport- ed; Williams v. Lorain (Mar. 19, 1975), Lorain App. No. 2261, un- reported. In this instance, it is undisputed that Davis is the owner of record. Further, in accordance with the land installment con- tract, Davis is not required to convey title until the purchaser has fulfilled all of its obligations under the contract, and counsel for Davis acknowledges that the purchaser did, in fact, default upon its obligations under the land contract. Recovery is therefore proper as against Davis. - 14 - This assignment of error is without merit. IV. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED IN GRANTING CLEVELAND'S AND SUPERIOR'S MOTIONS FOR SUMMARY JUDGMENT BECAUSE AS A MATTER OF LAW DAVIS' CLAIM FOR DEPRIVATION OF PROPERTY WITHOUT COMPENSATION AND WITHOUT DUE PROCESS IS NOT BARRED BY THE IMMUNITY DEFENSES OF CHAPTER 2744. (NOVEMBER 3, 1995 ORDER). In this assignment of error, Davis maintains that its coun- terclaim against the city alleged violations of its constitutional rights and the city was, therefore, not entitled to immunity under R.C. 2744. In this matter, Davis asserted that the city's action was a taking without just compensation. Section I, Article 19 of the Ohio Constitution and the Fifth Amendment to the United States Constitution prohibit the taking of private property for public use except upon payment of just com- pensation. State v. Penrod (1992), 81 Ohio App.3d 654, 662. Just compensation is not mandated in each instance where an owner's property rights are impaired; the constitutional requirement of just compensation is associated with the state's use of its powers of eminent domain. Id. The Penrod court explained: Recognizing the distinction between the police and emiment domain powers, the Supreme Court has long held that laws enacted in the proper exercise of the police power, even though they - 15 - result in the impairment of the full use of property by the owner thereof, do not constitute a "taking of private property" requiring compensation. State ex rel. Taylor v. Whitehead (1982), 70 Ohio St.2d 37, 40, 24 O.O.2d 88, 89, 434 N.E.2d 732, 734; Pritz v. Messer (1925), 112 Ohio St. 628, 149 N.E. 30, at paragraph one of the syllabus. Id. at 663 (holding seizure of property pursuant to forfeiture statute enacted under state's police power does not give rise to a constitutional right to compensation). Similarly, it is well settled that municipal ordinances enacted pursuant to R.C. 715.26 are a valid exercise of police power. See State ex rel. Eaton v. Price (1957), 105 Ohio App. 376, 388. Accordingly, Davis's taking claim does not invoke the constitutional requirements of just compensation. We hasten to add, however, that where a city has failed to provide a property owner with an opportunity for hearing or appeal prior to the razing of property, the city has denied the owner due process of law. See Superior Sav. Ass'n. v. Cleveland (N.D.Ohio 1980), 501 F.Supp. 1244, 1250; Bancplus Mortgage Corp. v. Cleve- land (Dec. 29, 1992), Cuyahoga C.P. No. 167189, unreported, aff'd. (June 9, 1994), Cuyahoga App. No. 65011, unreported. In such instance, there is no immunity under R.C. Chapter 2744. See R.C. 2744.09(E). In addition, the city will be precluded from receiv- ing its demolition costs. Bancplus, supra. Here, there is no genuine dispute regarding Davis's opportu- nities to be heard prior to the demolition of the property. A cause of action for constitutional violations will not lie herein, - 16 - and Davis, in any event, did not assert a constitutional claim. Judgment affirmed. - 17 - It is ordered that appellee recover of appellants its 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. JAMES D. SWEENEY, P.J. and PATRICIA BLACKMON, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .