Vlcek v. Chodkowski

• Decision Date: 15 May 2015
• Docket Number: No. 26078.,26078.
• Citation: 34 N.E.3d 446
• Parties: Kevin VLCEK, Plaintiff–Appellee/Cross–Appellant v. Bryan R. CHODKOWSKI, et al., Defendants–Appellants/Cross–Appellees.
• Court: Ohio Court of Appeals

34 N.E.3d 446

Kevin VLCEK, Plaintiff–Appellee/Cross–Appellant

v.Bryan R. CHODKOWSKI, et al., Defendants–Appellants/Cross–Appellees.

No. 26078.

Court of Appeals of Ohio, Second District, Montgomery County.

May 15, 2015.

Konrad Kuczak, Dayton, OH, Attorney for Plaintiff–Appellee/Cross–Appellant, Kevin Vlcek.

Edward J. Dowd, and Joshua R. Schierloh, Surdyk, Dowd & Turner Co., L.P.A., Dayton, OH, Attorneys for Defendants–Appellants/Cross–Appellees, Bryan R. Chodkowski, et al.

OPINION

FAIN

, J.

{¶ 1} Defendants-appellants Bryan R.H. Chodkowski, Mark L. Reiss, Daniel Brodnick, Voncile DuBose, Dan Gentry, David Schmidt, Kolby Watson, and Peter Williams are all officials or employees of the City of Riverside. They appeal from an order of the trial court denying summary judgment on the issues of qualified immunity and statutory immunity in favor of Williams and DuBose. Defendants-appellants contend that the court erred in finding that Vlcek has proven a violation of his constitutional right to due process, based on errors of law regarding Vlcek's failure to exhaust administrative remedies and the right to written notice of his right to appeal. Plaintiff-appellee Kevin Vlcek cross-appeals from an order of the trial court granting summary judgment on the issue of immunity in favor of the police officers, Brodnick, Gentry, Schmidt, and Watson. We will only address the issues as they relate to the order of the trial court denying summary judgment in favor of Williams and DuBose on the issue of immunity; all the other orders appealed from are not final appealable orders.

{¶ 2} We conclude that the trial court did not err in rendering summary judgment on the issue of immunity with respect to the Riverside officials, Williams and DuBose. Accordingly, that order is Affirmed. The appeals from the other orders are Dismissed, for lack of a final appealable order.

I. The Course of Proceedings

{¶ 3} An adversarial relationship between the parties began in 1996 when the City of Riverside began its enforcement of a city ordinance prohibiting the storage of inoperable and unlicensed motor vehicles on Vlcek's property, and Vlcek filed a lawsuit to stop the enforcement. The 1996 lawsuit ended with the filing of a written settlement agreement, in which Vlcek agreed to remove any unlicensed vehicle on his premises, and not to park or store any unlicensed motor vehicle outside of an enclosed structure on his property that was not parked or stored on the premises as of February 6, 1997. The final dismissal entry specifically stated that the court retained jurisdiction to enforce the terms of the settlement agreement.

{¶ 4} On three occasions between July, 2010 and September, 2011, the City of Riverside, through its officials, posted notices of violation on Vlcek's property, and caused the removal of several vehicles and trailers through its contractor, Sid's Towing. The City did not return to the common pleas court to seek an enforcement of the settlement agreement or to seek a contempt order against Vlcek as a way to obtain a court order to mandate the removal of vehicles or trailers. Instead, citations or notices of violation were issued to Vlcek to enforce two different City of Riverside ordinances: (1) Section 1331 of the Exterior Property Maintenance Code, which prohibits the outside storage of inoperable and unlicensed motor vehicles, and the outside storage of debris; and (2) Section 1173.25 of the Zoning Code, which prohibits outside storage of commercial vehicles and heavy equipment.

{¶ 5} On July 23, 2010, five separate parking violation warnings were affixed to three cars and two trailers that were stored outside on Vlcek's property. The notices identify violations of Section 1331 and Section 1173.25, but the forms do not indicate a particular subsection of the law, there are no references to the source of the law (Riverside Code of General Ordinances, hereinafter referred to as R.C.G.O.), and no specific remedies, action or appeal rights are identified other than “to move the vehicle immediately to avoid the possibility of further action being taken by the city by means of abatement and cost recovery, fines and/or court proceedings against the owner.” A phone number was provided on the form for questions.

{¶ 6} In response to the first set of violation notices, Vlcek sent a letter on July 26, in which he disputed the violations and raised the issue of the prior court settlement. Williams called Vlcek to confirm that he wanted a hearing before the property maintenance appeals board, and agreed to set the matter for a hearing before the board. When the hearing was set for August 24, 2010, Vlcek verbally informed Williams, and then confirmed in writing, pursuant to a letter dated August 19, that he was not available on August 24 because of his commitment to report for temporary duty with the Air Force.¹ On August 25, 2010, action was taken to tow two of the vehicles and one trailer from Vlcek's property. A new hearing date was set for November 2, 2010. Prior to the hearing, the seized vehicles and trailer were returned to Vlcek, which he alleged were damaged in the process. A hearing was conducted on November 2, 2010, before the Exterior Property Maintenance Appeals Board. The Board Chairman issued “Findings of Fact” on November 23, 2010, concluding that the Board had no authority over three of the violations, because they were zoning code violations. The board report “sustained” the three violations of the property maintenance code and stated that Vlcek had 10 days to remove three specific vehicles from his property or to bring them into compliance, but did not state that the City would remove the property if Vlcek did not comply. The report did not contain any language regarding the right to challenge the decision or appeal, and did not contain any notification that the findings of the chairman would be presented to the board for adoption at a board meeting. On the same day the chairman's report was issued, November 23, 2010, the minutes of the board meeting reflect that the chairman's finding of facts were adopted. The minutes of the meeting also reflect that Williams explained to the board that they would send the decision to Vlcek by certified mail, wait ten days, then the city would remove the vehicles. Vlcek was not present at this meeting, and no record verifies that he was sent a copy of the minutes, which were not signed by the chair until February 14, 2012.

{¶ 7} On December 2, 2010, the City Manager issued a directive to the code enforcement officers suspending any enforcement of vehicle violations, including seizure and impoundment, until the spring of 2011. On December 15, 2010, Sid's Towing removed, from Vlcek's property, two of the three vehicles identified in the board's decision.

{¶ 8} On February 23, 2011, two notice of violations from the City of Riverside were prepared by the code enforcement officer and affixed to a vehicle and a trailer on Vlcek's property. In the second set of violation notices, the City of Riverside utilized a different form, which did specify that if the vehicle was not brought into compliance within ten days, it may be towed at the expense of the vehicle owner. The new notice form now contained four specific subsections of the law, but only the box identifying a violation of Section 1331.14 was checked, which applies to unlicensed or inoperable motor vehicles. The trailer that was tagged as a violation is not a motor vehicle. The notice of violation did not check any one of the three boxes for violations of R.C.G.O. Chapter 1173, which apply to commercial vehicles and heavy equipment. The new notice also stated that Vlcek had 10 days from the violation date to file a written appeal to the Property Maintenance Appeals Board at City Hall. On March 3, 2011, Vlcek sent a letter to the board, challenging the violations, but it was not treated as an appeal or request for hearing. No hearing was scheduled or conducted on the second set of violation notices. On March 10, 2011, Sid's Towing removed from Vlcek's property the vehicle and trailer that were cited in the second set of violation notices. No administrative order or court order was obtained prior to the seizure of the motor vehicle and the non-motorized trailer.

{¶ 9} On April 4, 2011, the City Manager issued three written policies directed to the code enforcement officers, Williams and DuBose, outlining the procedural steps that must be taken to issue notice of code violations, including the obligation to provide a notice of appeal right, a definitive compliance date, and a statement that if the property is not brought into compliance, “the city will seek corrective action through the abatement process, including reimbursement of funds to abate the violation or proceed with legal action through Municipal Court of Montgomery County, Eastern Division.”

{¶ 10} On September 7, 2011, a notice of violation was issued to notify Vlcek of the city's intent to enforce “Section 1331.12(D)(6) of the codified ordinances of the City of Riverside, Ohio,” which prohibited all outside storage and debris. The notice stated, “Please remove all outside storage and debris.” The notice provided a phone number to schedule a bulk pick-up. It specifically stated that Vlcek was being given five days from receipt of the notice to bring the property into compliance. The notice informed Vlcek that the City was empowered to perform the necessary work to make the property compliant. The notice did not contain any specifics about the type of storage or debris under scrutiny and contained no statement about Vlcek's right to a hearing, any pre- or post-deprivation remedy or appeal right.

{¶ 11} On October 17, 2011, a summons was issued by the Montgomery County Municipal Court, informing Vlcek that a criminal complaint had been filed against him by the City of Riverside for a violation of Section 1331.12(D)(6), a minor misdemeanor, for failing to keep the exterior of his property...