Charles D. Shimola v. City of Cleveland
| Decision Date | 18 June 1992 |
| Docket Number | 60928,60923,61187,92-LW-3185 |
| Parties | CHARLES D. SHIMOLA, Plaintiff-Appellee and Cross-Appellant (Nos. 60923 and 61187), Plaintiff-Appellant, (No. 60928) v. CITY OF CLEVELAND, Defendant-Appellant and Cross-Appellee (Nos. 60923 and 61187), Defendant-Appellee (No. 60928) |
| Court | Ohio Court of Appeals |
Plaintiff-appellant, Charles Shimola, commenced an action against a number of defendants on August 17, 1981 based upon the August 23, 1980 demolition of a house by the City of Cleveland ("the city").[1] The complaint included nine counts and a conspiracy claim which was set forth in the facts portion of the complaint. The trial court later granted summary judgment in favor of defendants on six (6) of the (10) claims in 1986: counts one 'and two (demolition of property without notice); counts three and seven (defamation); count nine (breach of fiduciary duty); and the conspiracy claim. Shimola appealed the trial court's order but this court was without jurisdiction to review it pursuant to Civ. R. 54(B). See, Shimola v. City of Cleveland (Apr. 4, 1988), Cuyahoga App. No. 53574, unreported. In a subsequent appeal, this court reversed and remanded the action. We concluded that the trial court erred in granting summary judgment in favor of the city on the demolition without notice claim (count two) and in favor of Barbara Pringle, then councilwoman for the city, on the defamation claim (count seven). See, Shimola v. City of Cleveland (Nov. 22, 1989), Cuyahoga App. No. 55667, unreported.
On October 17, 1990, the case proceeded to trial on these two issues, whether the city violated state tort law and the due process clause of the Fourteenth Amendment of the United States Constitution by destroying Shimola's property without notice, without opportunity to contest the demolition, and without compensation. The issue of the city's liability was decided by directed verdict in favor of Shimola. The jury subsequently returned verdicts in favor of Pringle on the defamation claim but against the city in the amount of $72,500 on the demolition without notice claim.
Several post trial motions were filed by the parties. The city filed a "Motion to Deduct Benefits From Collateral Sources" pursuant to R.C. 2744.05(B) on October 26, 1990. The trial court overruled this motion on December 18, 1990. Shimola filed a motion for pre-judgment interest on October 29, 1990, said motion being granted on December 19, 1990 after an evidentiary hearing. Shimola also filed a motion for the imposition of costs which was granted by the trial court on December 17, 1990.
The city now appeals from the initial judgment and the award of prejudument interest. Shimola appeals from the judgment rendered in favor of Pringle. These appeals are consolidated for hearing, review and disposition. A careful review of the record compels affirmance.
In 1979, the State of Ohio sold two houses to Shimola by sealed bid. The state originally purchased the houses to clear the path for the construction of Interstate 480. Shimola purchased one house at 4939 West 13th Street for $25 and another house at 4959 West 13th Street for $111 ("the green house"). Shimola purchased two parcels of land in the City of Cleveland for the relocation of the houses. These parcels were located at 320 South Ridge Drive and 4833 West 14th Street.
Shimola soon after learned that City of Cleveland Codified Ordinance Section 183.11 prohibited the relocation within the city of any dwelling which was purchased to facilitate the construction of any freeway if the relocation required the use of city streets. Shimola sought the assistance of his councilwoman, Pringle, to introduce special legislation that would except him from the ordinance. After an inspection of the houses and the property, Pringle introduced the legislation in council. Council unanimously passed the legislation on February 11, 1980, enabling Shimola to obtain a relocation permit.
Shimola's attempt to obtain the permit, however, was hindered when one time defendant, Joseph Stamps, then the Director of City services, refused to issue the permit. The refusal stemmed from Pringle's desire that the green house he relocated to the lot on South Ridge Drive rather than the lot it was originally intended to be relocated to, the West 14th Street lot. Permits were eventually issued on March 26, 1980 at which time neither structure sustained any damage.
In April, the green house was moved to a state owned lot at 475 West Schaff Road. A fire occurred at the house on or about April 24, 1980. The City Building Inspector, Louis Woodard, inspected and condemned the house the following day. The house sustained minor and repairable fire damage. Shimola received permission to relocate the green house to South Ridge Road and was further directed to repair the fire damage within six months. The house remained on West Schaff Road until August 19, 1980.
Shimola's mover, Mural & Son, Inc. ("Mural"), successfully relocated the house to its South Ridge lot on August 21, 1980. In preparation for the move, the windows of the house were boarded up and the roof was lowered by detaching it and turning it upside down, to allow passage under electrical wires. The house was placed on two steel beams over an excavation since there was no foundation. A news report that same day recounted how the house arrived at its new location. Doug Adair, then anchorman for NBC affiliate WKYC-TV Channel 3, in his report, interviewed Pringle. Pringle's attitude toward the relocation of the houses changed in light of the receipt of complaints by her constituents.
During the night of August 21, vandals set the house on fire. Inspector Woodard arrived at the site the next day along with Assistant Commissioner of the Division of Buildings, Charles Leanza, Shimola and a representative of Mural. An inspection of the house revealed that it was structurally sound and repairable. A report by the city's fire department estimated damage at $250. A permit to replace the roof was obtained that day, August 22. Unfortunately, another fire occurred at the house that night. The Cleveland Fire Department estimated this damage at $2000. On August 23, Pringle contacted Leanza who then discussed the green house situation with the head of the Bureau of Demolition, Lisa Thomas; the Consulting Engineer for the Division of Building, Willibald Pelsoci; and a Senior Engineering Draftsman and Photographer, Warner Thomas. Pelsoci inspected the house and found that the structure was extensively damaged, was in danger of imminent collapse and had neither a roof nor a foundation. His conclusion was that the structure should be razed immediately. This conclusion coincided with Pringle's demand that the house be razed.
The green house was thus demolished pursuant to Cleveland Codified Ordinance Section 3103.08 on August 23, 1980 after Pelsoci contacted Lisa Thomas and Warner Thomas photographed it. The demolition was completed by B & B Wrecking & Excavating Company, the city's subcontractor. Shimola was out of town that day and received no prior notice of the city's intention to demolish the house.
For its first assignment of error, the city contends that:
"THE TRIAL COURT ERRED IN PERMITTING INADMISSIBLE EVIDENCE TO BE PRESENTED AT TRIAL WHICH HAD A PREJUDICIAL EFFECT ON THE JURY."
The city charges that the trial court improperly allowed a line of questioning which dealt with a mandamus action filed against the city by Shimola and settled in 1980. Shimola sought a court order directing the city to issue certain permits to him in that action. The city argues that the testimony concerning the mandamus action and settlement negotiations was inadmissible pursuant to Evid. R. 402[2], 408[3], and 501[4] and denied it a fair trial because the testimony was meant to "shock and enrage the jury with the supposedly improper settlement posture of the City, and the supposedly ulterior political motives of" Pringle.
The trial court has broad discretion in the admission and exclusion of evidence under Evid. R. 403, exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. A reviewing court should be slow to interfere unless the court has clearly abused its discretion and a party has been materially prejudiced thereby. State v. Maurer (1984), 15 Ohio St. 3d 239, 264. The trial court must determine whether the probative value of certain evidence and/or testimony is substantially outweighed by the danger of unfair prejudice, or of confusing or misleading the jury. See, State v. Lyles (1989), 42 Ohio St. 3d 98.
Applying the above cited rules, this court finds that the Cal court did not abuse its discretion in admitting the testimony of the mandamus action and of Pringle. Evid. R. 408 is meant to exclude offers to compromise and of compromises to prove the liability for, or invalidity of, the claim or its amount when liability, invalidity or the amount is at issue. The exclusion does not apply when the evidence is presented for a purpose other than proving liability, invalidity, for the amount of the claim. See Cannell v. Rhodes (1986), 31 Ohio App. 3d 183; Marszal v. Ameritrust (Oct. 27, 1983), Cuyahoga App. No. 46496, unreported; Staff Note to Evid. R. 408. The evidence concerning the mandamus action and of the compromise between the parties which allowed Shimola to relocate his houses to the city, was introduced for reasons other than proving liability, invalidity or the amount of his claims of demolition without notice and defamation. The testimony outlines the history of the green house's move to its new location. Moreover, we...
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