Miller v. Wayne Twp. Bd. of Trs.

• Decision Date: 11 August 2011
• Docket Number: Case No. 3:10-cv-172
• Parties: MARCUS MILLER, Plaintiff, v. WAYNE TOWNSHIP BOARD OF TRUSTEES, et al, Defendants.
• Court: U.S. District Court — Southern District of Ohio

MARCUS MILLER, Plaintiff,

v.WAYNE TOWNSHIP BOARD OF TRUSTEES, et al, Defendants.

Case No. 3:10-cv-172

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Dated: August 11, 2011

Judge Timothy S. Black

DECISION AND ENTRY GRANTING DEFENDANTS' MOTIONS FOR

SUMMARY JUDGMENT (DOCS. 28, 29, 32)

This civil case is before the Court on the Defendants' Motions for Summary Judgment. (Docs. 28, 29, 32). Plaintiff failed to file any memoranda opposing the Motions and the time for doing so has expired.¹ The Motions are now ripe for decision.

I. FACTS

This case involves of years of contentious litigation over cleaning up "junk" that has accumulated on Plaintiff's property in Wayne Township, Champaign County, Ohio. Recently, the Ohio Second District Court of Appeals set forth a succinct background and procedural history of this dispute, which Defendants all cite substantially in their Motions.² The Ohio Court of Appeals summarized the background and procedural history of this case as follows:

{¶ 5} The case before us involves cleanup proceedings that occurred in connection with a property owned by Marcus Miller. The Wayne Township Zoning Inspector originally filed suit against Miller in 2001, but cleanup of the premises did not begin until April 2008. The record currently before us consists of pleadings beginning in June 2008, when Miller filed a motion for protective order, a motion for contempt, and a motion for a damages hearing. Miller claimed in the motions that a prior court order in the case had only authorized the removal of "junk" from Miller's premises, as ascertained by collaboration between Miller and the designated zoning inspector. Miller alleged that representatives of the zoning inspector had improperly removed items from his premises, and had damaged him in an amount in excess of $30,000.

{¶ 6} The trial court held evidentiary hearings in August and September 2008, and the transcripts of the hearings are part of the record. According to the evidence presented at these hearings, the Wayne Township Trustees received several complaints about debris and junk that had accumulated on property located at 6558 State Route 245. The zoning inspector at the time, Richard Tillman, viewed the premises and found debris, unlicensed vehicles, and several pieces of unusable junk. Tillman attempted to talk to the owner, Marcus Miller, but Miller would not talk to him. Tillman then filed the current action in common pleas court in 2001, to attempt to get the property cleaned up.

{¶ 7} A default judgment was issued against Miller in July 2003. In the journal entry, the trial court granted default judgment to Tillman (the then-current zoning inspector), and awarded injunctive relief. The court permanently enjoined Miller from maintaining infractions listed in the complaint for injunctive relief. In addition, the court ordered Miller to bring his property into full compliance with zoning regulations, and to remove junk and unlicensed vehicles from the property. Finally, the court stated that if Miller failed to bring his property into compliance by early September 2003, Tillman, through the Trustees, and with the aid of the Champaign County Sheriff, could abate the violations by removing any unlicensed vehicles that were not in a completely enclosed building, and by removing junk visible from the public highway or neighboring property, at Miller's cost. The court authorized the costs to be assessed to the Champaign County Auditor, for collection as taxes, if Miller failed to pay.

{¶ 8} Miller failed to appeal from the June 2003 court order. He also did not clean up his property, which became progressively worse. Wayne Township did not take action for some time to enforce the court order, because engaging in the type of cleanup operation involved would be a huge undertaking for a small rural township.

{¶ 9} The record of proceedings between 2005 and June 2008 is not before us. Both parties agree that the Zoning Inspector filed a show cause order in May 2005,³ asking that Miller be held in contempt for failing to comply with the judgment and injunction that had been entered. The parties agree that the trial court entered a further order in June 2005, setting a timetable for compliance with its order. That order is not part of the record before us, but the parties agree that the court ordered Miller to allow access to his property for identification of items to be removed. Miller was also ordered to remove all identified items by late October 2005.⁴ Miller failed to appeal from this order, as well.

{¶ 10} Tillman resigned in 2005, and the new Zoning Inspector, Jene Gaver, was substituted as party plaintiff. The parties agree that the Zoning Inspector filed a motion to reaffirm the judgment in February 2006, and that Miller failed to attend the hearing held on this motion. In addition, the parties agree that the trial court issued an order in March 2006, reaffirming its 2003 order.⁵ Miller again failed to appeal.

{¶ 11} In May or June 2007, Phillip Hisnay was appointed as the Wayne Township Zoning Inspector. The Trustees subsequently sent Miller a letter indicating that the Trustees, in conjunction with the Champaign County Health Department, would begin cleaning up theproperty on April 28, 2008, at 8:00 a.m.⁶ The township retained OMAC Hauling (OMAC) to clean up the property. Due to magnitude of the job, the Trustees appointed Tillman as an alternate zoning inspector.

{¶ 12} The cleanup began as scheduled. Because of the amount of waste and materials in the apron just off the road, the first day was spent trying to clear off a work area and a path so that OMAC could get its equipment on the property. Hisnay, Tillman, and John Doty, one of the Trustees, then compiled a list and pictures of 142 items of unused, junk equipment scattered over 100 acres. The list did not include general junk, trash, batteries, tire, and debris, but did include unused equipment and property in view of adjoining residential areas and the public roadway.

{¶ 13} Hisnay, Tillman, and Doty jointly decided what items should be on the list Each item was spray-painted with a number, and a picture was taken. The directive was that if the item was not operable and did not pertain to Miller's operation, it would be considered junk. If any item was deemed questionable, or was an item for which Miller might have a use, Miller was given the benefit of the doubt, and the item was not marked as scrap. Miller was allowed to keep anything he wanted to keep and that he identified.

{¶ 14} Miller arrived at the cleanup site at around 3:00 p.m. on the first day. Miller began removing things himself from the property on the second or third day. Miller and his people began at the back of the property and started working forward, while OMAC was cleaning up solid waste around the house that was located on the site. OMAC had about five or six people working, and it took four weeks for the cleanup to be completed. Miller also hauled items away during the four-week period. OMAC's total charge for the work was $39,838.75, and $16,913.95 was credited against that for steel that was salvaged and sold. OMAC's owner did indicate at the hearings that one of Miller's licensed vehicles was being stored at OMAC's premises and had not yet been removed by Miller.

{¶ 15} As was noted, Miller filed motions for contempt, for a protective order, and for damages in June 2008. After meeting with the parties, the trial court filed a journal entry in June 2009, setting an evidentiary hearing in July 2009. The court noted that the purpose of the hearing would be to determine what items had been removed and whether any removal exceeded court orders. The court also referred to its prior entries, and noted that nothing in the orders required "collaboration" by the parties.

{¶ 16} In a further entry filed after the July 2009 hearing, the trial court noted that the parties had appeared with counsel. After counsel made statements, the court determined that the request for protective order was moot, because no personal property had been removed from Miller's house. The court then scheduled a further hearing for early August 2009.

{¶ 17} In early August 2009, the court filed another journal entry indicating that both parties appeared with counsel, and that plaintiff had moved to substitute the current Zoning Inspector, Phillip Hisnay, as party plaintiff. The court noted that Miller did not object and that Hisnay was, therefore, substituted as plaintiff. Finally, the court noted that defendant had presented testimony and evidence, and that the hearing would be continued until early September 2009, to receive further testimony. Two more hearings were held in September, and the trial court then issued a decision. The court held that Miller's contempt motion was without merit, and that the Zoning Inspector had not violated prior court orders. The court specifically stated that it found the Zoning Inspector's witnesses more credible than Miller's witnesses. The court gave Miller thirty days to remove his truck from the OMAC lot or to make other arrangements. In addition, the court declined to void the contract with OMAC, and concluded that Miller's request for damages was moot.

Gaver v. Miller, No. 09-CA-46, 2010 WL 3516679, at * 1-3 (Ohio App. Sept. 10, 2010).

On April 28, 2010, Plaintiff filed this action naming the following Defendants: Wayne Township; Township Trustees Doug Doty, Glenn Gregg and Grant Johnson, in their official and individual capacities; Township Zoning Inspectors Richard Tillman,Jene Gaver and Phil Hisnay, in their official and individual capacities; Barbara Moore individually and in her official capacity as Wayne Township Clerk; Russell Wellman, individually and in his official capacity as a Champaign County Health Inspector; OMAC Hauling, LLC and its representative Dustin Owens; Kermit Russell, in his official capacity as Treasurer of Champaign County and individually; and Nick...