Davet v. City of Cleveland

• Decision Date: 01 August 2006
• Docket Number: No. 05-3832.,05-3832.
• Parties: Richard F. DAVET, Plaintiff-Appellant, v. CITY OF CLEVELAND, Robert Vilkas and City of Cleveland Department of Building & Housing, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

456 F.3d 549

Richard F. DAVET, Plaintiff-Appellant, v. CITY OF CLEVELAND, Robert Vilkas and City of Cleveland Department of Building & Housing, Defendants-Appellees.

No. 05-3832.

United States Court of Appeals, Sixth Circuit.

Submitted: April 19, 2006.

Decided and Filed: August 1, 2006.

ON BRIEF: David P. Bertsch, Buckingham, Doolittle & Burroughs, Akron, Ohio, Walter A. Lucas, Buckingham, Doolittle & Burroughs, Cleveland, Ohio, for Appellant. Michael F. Cosgrove, City of Cleveland Law Department, Cleveland, Ohio, for Appellees.

Before: BOGGS, Chief Judge; SUTTON, Circuit Judge; SCHWARZER, District Judge.^*

AMENDED OPINION

SUTTON, Circuit Judge.

In 2003, the City of Cleveland condemned, then partially demolished, a building owned by Richard Davet. In response, Davet filed a lawsuit in state court against the city and several other defendants, alleging that the demolition violated the Takings, the Due Process and the Equal Protection Clauses of the United States Constitution. The defendants filed a counterclaim seeking an injunction (compelling Davet to remedy the code violations or complete the demolition) and over $16,000 in damages for the cost of the partial demolition. The defendants removed the case to federal court and eventually filed a motion for summary judgment. The district court granted the defendants' motion, and Davet appealed. We affirm.

I.

On March 6, 2003, City of Cleveland building inspectors examined a building owned by Richard Davet in Cleveland, Ohio. The inspectors found numerous violations of the Cleveland Building and Housing Code, including "deteriorated" roofing, walls, floor and stairs. As a result, the city posted a condemnation notice on the front door of the building that same day, giving Davet until the following day, March 7, 2003, to remedy the code violations or face the risk that the city would demolish the building. Davet discovered the notice on March 10, 2003, and promptly filed an appeal with the city's Board of Building Standards. The appeal triggered an automatic stay, which prevented the city from demolishing the building until the Board had decided the appeal.

The city, however, asked the Board to lift the automatic stay because the building posed an "immediate peril to life [and/or] property." JA 131-34. The Board agreed and lifted the stay, finding that the building indeed posed an "immediate danger to the community." D. Ct. Op. at 4.

On March 12, 2003, Davet responded by seeking, then receiving, a temporary restraining order from the Court of Common Pleas of Cuyahoga County. The restraining order prevented the city from taking any further action pending a preliminary-injunction hearing. The court held the required hearing the following day but at that point Davet withdrew his injunction request.

On March 14, 2003, the city demolished the front of the building, and that April it filed a counterclaim in state court (which it amended in September 2003) seeking reimbursement for the cost of the partial demolition (roughly $16,000) and an injunction compelling Davet either to fix the rest of the building or to allow the city to demolish it.

On April 23, 2003, and again on May 7, 2003, the Board of Building Standards heard Davet's appeal of the condemnation order. Represented by counsel, Davet testified at the hearings and was given an opportunity to introduce evidence and to present and cross-examine witnesses. On May 7, 2003, the Board upheld the condemnation order and informed Davet of his right to appeal the Board's decision. Davet did not appeal.

After the hearing, the parties tried to resolve the dispute. The city sent Davet's attorney a letter detailing the steps needed to remedy the code violations. Davet responded with a proposal of his own, which the city rejected (in bad faith according to Davet) because it failed to address the issues underlying the condemnation order and the requirements listed in the city's letter. When the city told Davet that it planned to demolish a second portion of the building, Davet sought another temporary restraining order from the Court of Common Pleas of Cuyahoga County. The state court rejected Davet's request, noting that he had failed to show "by clear and convincing evidence that he [was] likely to succeed" in demonstrating that the building did "not pose an immediate peril," that he would suffer "irreparable injury" if no injunction were granted and that "the public interest [would be] served by allowing the building to remain in its [then-current] condition." Id. at 6. The city demolished a second portion of the building on June 11.

On July 3, 2003, Davet filed an amended complaint in state court, seeking relief under 42 U.S.C. § 1983 against the city and its chief building official, Robert Vilkas, for violating Davet's equal protection and (substantive and procedural) due process rights. Davet also claimed that the city's actions amounted to a "taking without public purpose and without just compensation." JA 16. The city removed the case to federal court and sought summary judgment on all of Davet's claims.

In granting the city's summary-judgment motion, the district court noted that the administrative hearings before the Board established that the city had properly condemned the building and that Davet's failure to appeal that conclusion rendered it an "established legal fact" entitled to "preclusive effect." D. Ct. Op. at 11. As a result, the court reasoned, Davet's "argument that the structure posed no danger to the community[] and [that it] did not constitute a public nuisance subject to condemnation" could not be relitigated. Id. at 10. Given the state administrative conclusion that the building posed a danger to the community and given the process afforded Davet, the court rejected each of his constitutional claims as a matter of law. Roughly three months later, the court exercised supplemental jurisdiction over the counterclaim (seeking reimbursement of the demolition costs and an injunction compelling Davet to fix the building or to demolish it) and ruled in the city's favor.

II.

Davet raises three arguments on appeal: (1) the district court erred in granting the city summary judgment on Davet's claims; (2) the district court erred in exercising supplemental jurisdiction over the city's counterclaim; and (3) even if the district court properly retained jurisdiction to hear the counterclaim, it erred in granting the city's motion for summary judgment on that claim. We give fresh review to the district court's summary-judgment decisions, Harajli v. Huron Twp., 365 F.3d 501, 505 (6th Cir.2004), fresh review to its assessment of the scope of its jurisdiction, Friends of Crystal River v. EPA, 35 F.3d 1073, 1077 (6th Cir.1994), and abuse-of-discretion review to its decision to exercise supplemental jurisdiction over ancillary state-law claims, Campanella v. Commerce Exch. Bank, 137 F.3d 885, 892 (6th Cir. 1998).

A.

In challenging the court's summary disposition of his claims, Davet argues that it incorrectly concluded that he had failed to exhaust his administrative remedies. But that is not what the court did. Because Davet did not appeal the Board's ruling on the validity of the condemnation order, the district court reasoned that the order became final and precluded further argument in a collateral proceeding about whether the structure posed a "danger to the community[] and did not constitute a public nuisance subject to condemnation." D. Ct. Op. at 10-11.

Davet as an initial matter does not challenge that reasoning, and it is not clear how he could. "[W]hen a state agency acting in a judicial capacity resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." Univ. of Tenn. v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (internal quotation marks, ellipses and citation omitted). Under Ohio law, "res judicata, whether claim preclusion or issue preclusion, applies to administrative proceedings that are of a judicial nature and where the parties have had an ample opportunity to litigate the issues involved in the proceeding." Grava v. Parkman Twp. Bd. of Zoning Appeals, 73 Ohio St.3d 379, 653 N.E.2d 226, 228 (1995) (internal quotation marks omitted); see Crow v. City of Springfield, 15 Fed. Appx. 219 (6th Cir.2001) ("While it is true that as a general principle, parties may litigate constitutional deprivation claims in federal court regardless of whether they took advantage of a State court or State administrative procedure, . . . that is not the principle being applied in this case. . . . The finding by an administrative body that Crow's property constituted a public nuisance is an established legal fact, which was not appealed. Thus, the district court gave the finding preclusive effect as the finding was an unreviewed final decision of a State administrative body . . . ."); Flis v. Voinovich, No. 96-4369, 1998 WL 552865, at *4 (6th Cir. Aug.13, 1998) (per curiam).

Once the district court established the validity of the condemnation order and the preclusive effect of the Board's ruling on it, the court permissibly addressed and rejected each of Davet's claims as a matter of law: (1) The procedural due process claim failed because the Board had given him ample notice and an opportunity to be heard; (2) the substantive due process claim failed because he could not establish that the city's actions (taken pursuant to a valid condemnation order and in accordance with the procedures mandated by city and state law) "shock[ed] the conscience" or were "arbitrary and capricious," D. Ct. Op. at 12-13 (internal quotation marks omitted); (3) the equal protection claim failed because he could not establish that demolishing a dangerous building as to this "class of one" (and dilapidated building of...