COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73153 and 73619 JOHN R. YOUNG, et al. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION ANNETTE M. LINDEN, et al. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT SEPTEMBER 3, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-289792 JUDGMENT: Affirmed in part, Reversed and Remanded in part. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiffs-Appellants: MARLENE N. LALLY, ESQ. 2351 North Park Blvd. Cleveland Heights, Ohio 44106 For Defendant-Appellee CHRISTOPHER R. FORTUNATO, ESQ. Annette M. Linden: 250 Spectrum Building 6060 Rockside Woods Blvd. Cleveland, Ohio 44131 - i - For Appellees: First Financial Ins. Co. MICHELLE J. SHEEHAN, ESQ. BRIAN D. SULLIVAN, ESQ. Reminger and Reminger 113 St. Clair Building Cleveland, Ohio 44114 Deskins, Inc. & Deskins, Inc. THOMAS S. AMZANEC, ESQ. DBA, et al. Mazanec, Raskin & Ryder 100 Franklin's Row 34305 Solon Road Cleveland, Ohio 44139 PATRICIA ANN BLACKMON, A.J.: John and Donna Young appeal a decision by the trial court in favor of appellees Annette Linden, D&S Demolition, and First -2- Financial Insurance Company in their wrongful demolition action. Young assigns the following two errors for our review: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT D&S DEMOLITION AND EXCAVATING CO.'S MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT FIRST FINANCIAL INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court in part and reverse it in part. The apposite facts follow. John and Donna Young were owners of a commercial building located at 5401-5403 Broadway Avenue. The building was the subject of a foreclosure action to collect unpaid back taxes. The building was sold at a judicial action on May 3, 1993. The high bidder at the sale was Annette Linden. The sale was confirmed by the trial court on May 24, 1993. On or about May 24, 1993, the building was razed by D & S Demolition at the request of Dennis Althar, Annette Linden's stepfather. The lot was paved over and converted into a commercial parking lot. A sign was posted designating the lot as parking for several nearby businesses -- Electronic Surplus, Inc., the Cleveland Public Library, C&R Automotive, Inc. and the Broadway School of Music. On April 26, 1994, the trial court vacated the confirmation of the sale of the property when the Youngs' mortgage company alleged it did not receive notification from the county about the foreclosure sale. The trial court also vacated the sale of the property on February 21, 1995. On February 21, 1995, the court -3- redeemed the property to the Youngs and returned the purchase price to Linden. Linden relinquished possession of the property to the Youngs. The property was never deeded to Linden and/or Althar. On May 22, 1995, the Youngs, D.D. & Y. Inc. dba Del's Place and A Better Choice of Music Company filed a complaint against Annette Linden, Dennis Althar, Dennis Althar dba All Tronics Renovation and Construction Company, Dennis Althar dba All Tronics Restoration and Construction Company, Gloria Althar, Gloria Althar dba All Tronics Renovation and Construction Company, Gloria Althar dba All Tronics Restoration and Construction Company, Cleveland Public Library, C&R Auto, Broadway School of Music, Electronic Surplus, D&S Demolition & Excavating Company, and First Financial Insurance Company. The plaintiffs eventually dismissed their claims against the Althars and their corporations, Linden, C&R Auto, Broadway School of Music, and Electronic Surplus.1 Summary judgment was granted in favor of Cleveland Public Library, D&S Demolition, and First Financial Insurance Company. In this appeal, the Youngs challenged the summary judgments entered in favor of D&S Demolition and First Financial Insurance Company. Summary judgment may be granted only if no genuine issue of material fact exists. Civ.R. 56(C). Our standard of review for summary judgment is the same as that of the trial court. Consequently, we review cases de novo. Brown v. Scioto Cty Bd of 1 Linden, Dennis Althar and Gloria Althar agreed to pay the Youngs a total of $65,000 to settle the claims against them. -4- Commrs. (1993), 87 Ohio App.3d 704, citing Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6, appeal dismissed (1988), 39 Ohio St.3d 710. In applying the de novo standard, we review the trial court's decision independently and without deference to the trial court's determination. Brown at 711. Summary judgment is appropriate when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in its favor. Brown, supra, citing Bostic v. Connor (1988), 37 Ohio St.3d 144, 146; cf., also State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14; Civ.R. 56(C). The burden of showing no genuine issue as to any material of fact is on the party who requested the summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, citing Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520. However, the non-moving party has the initial burden of showing a genuine issue of material fact for trial. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. See Dresher v. Burt, supra at 295, (limiting syllabus 3 of Wing v. Anchor Media, Ltd. Of Texas (1991), 59 Ohio St.3d 108.) An issue is genuine only if the evidence is such that a reasonable jury -5- could find for the non-movant. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248. In their first assignment of error, the Youngs argue the trial court erred in granting summary judgment in favor of D&S Demolition on their claims for negligence, trespass, malicious vandalism, conversion and ejectment. In their complaint, the Youngs alleged D&S Demolition wrongfully demolished the building and denied them the free peaceable use of their property since May 24, 1993. They alleged the cost of restoring the building was in excess of Five Hundred Thousand Dollars ($500,000.00), the fair and reasonable rental value of the building was in excess of $2,000 per month and that the replacement value of the building was in excess of Seventy Five Thousand Dollars ($75,000.00.) The Youngs alleged the building contained personal property belonging to the Youngs, D.D. & Y, Inc., and A Better Choice of Music Company which was valued in excess of Ninety Four Thousand Five Hundred Dollars ($94,500). In its motion for summary judgment, D&S Demolition alleged that it complied with all necessary procedures to obtain the demolition permit and was unaware that Dennis Althar was not the true and legal owner of the property. It also argued that it had no duty to independently determine who owned the property. In support of its argument, D&S cited Shimola v. H.B. Lockhart Construction Co. (June 5, 1986), Cuyahoga App. No. 50693, unreported. In Shimola, a property owner filed a trespass action against a contractor after the contractor trespassed on the plaintiff's land while working on a public contract. We found -6- there was insufficient evidence of malice to support a claim for punitive damages where the contractor obtained written and verbal assurances from city officials that a valid easement had been obtained for working on the plaintiff's property. The case before us is different from Shimola in that D&S produced no evidence, other than his self-serving statements, that city officials told him that Althar owned the property. Though D&S claims it was told by responsible city officials that Althar owned the property, D&S owner Robert Deskins failed to name the sources of that information. When asked who told him Althar owned the property, Deskins replied the City of Cleveland entities, and I don't know who they would have been specifically. (Deskins Deposition at 70.) Also, there was no written representation from the city that Althar owned the property. D&S's attempt to use the demolition permit as written evidence from the city that Althar owned the property must be rejected. Deskins also admitted that he did not know who applied for the demolition permit and did not know how the building's owner was determined for the purpose of the permit.2 (Deskins Deposition at 35.) Under the circumstances, D&S' reliance on the permit as evidence that Althar owned the building cannot be held to have been reasonable. Accordingly, Shimola is inapposite. We conclude that D&S had an obligation to verify ownership of the property before demolishing it. Such a responsibility has been 2 In this case, Althar stated that he applied for the permit and submitted the information contained thereon. (Althar Deposition at 43.) -7- imposed upon contractors even in cases where the building destroyed has been administratively determined to be a nuisance. Even a person who destroys or injures private property in abating what legislative or administrative officials have determined to be a public nuisance, does so at his peril, where there has been neither a previous judicial determinationthat such supposed nuisance is a public nuisance nor even an opportunity provided to the owner for an administrative hearing (with a judicial review thereof) on the question as to whether there is a public nuisance. Solly v. Toledo (1966), 7 Ohio St.2d 16, 19. We see no reason to excuse the contractor from its duty to verify its authority to demolish, particularly where there was no administrative determination that a building was a nuisance. Clearly, an owner must be notified before a building is demolished and D&S could not and did not meet this obligation because it had no reliable information about who the owner of the building was. By destroying the building without verifying its ownership, D&S assumed the risk that it would be subject to a wrongful demolition action. The Youngs' first assignment of error is well taken. In their second assignment of error, the Youngs argue the trial court erred in granting summary judgment in favor of First Financial on the Youngs' claim for $56,000 in contractual damages due to First Financial's denial of their insurance claim for vandalism and vehicular damage. In their complaint, the Youngs alleged that the damage to the building was covered under one of the following two policy provisions listing Covered Causes of Loss: Aircraft or Vehicles, meaning only physical contact of an aircraft, a spacecraft, a self- -8- propelled missile, a vehicle or an object thrown up by a vehicle with the described property or with the building or structure containing the described property. Vandalism, meaning willful and malicious damage to, or destruction of, the described property. In its motion for summary judgment, First Financial alleged that the claim was denied pursuant to a policy provision which excluded coverage for loss or damage caused by vandalism if the building had been vacant or unoccupied for more than 30 days and excluded coverage for loss or damage caused by any other covered cause of loss if the building had been vacant or unoccupied for more than 60 days. During his deposition, Young admitted that the building had not been used as a tavern for about a year or two before it was demolished and that its liquor license had been revoked. He also stated that the building was used for the storage of equipment but nothing else. The Youngs' policy with First Financial Insurance Company included the following provisions: (8) Vacancy We will not for any loss or damage if the building where loss or damage occurs has been vacant or unoccupied for more than: a. 30 consecutive days before that loss or damage if caused by vandalism (if it is Covered Cause of Loss); or b. 60 consecutive days before that loss or damage is caused by any other Covered Cause of Loss; whether or not such vacancy or unoccupancy begins before the inception of this policy. But we will pay if the building is -9- unoccupied due to circumstances that are usual or incidental to the described occupancy. The policy defined unoccupied as containing contents pertaining to the occupancy of the building while operations or other customary activities are suspended. The insurance policy described the business as a tavern. By Young's own admission, the building had not been operated as a tavern for a year or two before it was demolished. Because the building contained items pertaining to its former use as a tavern, it was unoccupied as that term was defined by the policy. Young admitted that the building had been used for nothing other than storage since it stopped operating as a tavern. Because the evidence showed that the building had been unoccupied for more than 60 days prior to the date of loss, coverage was excluded under the terms of the policy, regardless of the covered cause of loss. Accordingly, we overrule Young's second assignment of error. Having found that Young's first assignment of error is well taken, we reverse the trial court's grant of summary judgment in favor of D&S Demolition and remand that cause to the trial court for further proceedings. The summary judgment in favor of First Financial Insurance Company is hereby affirmed. Judgment affirmed in part, reversed and remanded in part. This cause is affirmed in part and reversed and remanded in part. It is ordered that appellant and appellee share the 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 Court of Common Pleas, Domestic Relations Division 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. DYKE, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .