Two Bridges, LLC v. City of Youngstown, Ohio ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0279n.06
Case No. 22-3506
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Jun 15, 2023
TWO BRIDGES, LLC, DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
CITY OF YOUNGSTOWN, OHIO, ) DISTRICT OF OHIO
Defendant-Appellant. )
) OPINION
Before: CLAY, GRIFFIN, and DAVIS, Circuit Judges.
DAVIS, Circuit Judge. Two Bridges, LLC owned a building in Youngstown, Ohio that
had fallen into serious disrepair. Youngstown deemed the property unsafe pursuant to a city
ordinance and had it demolished. Two Bridges did not receive notice of the demolition before it
occurred. It sued the city claiming that the city’s actions violated its due process rights under the
Fourteenth Amendment to the United States Constitution. Youngstown moved for summary
judgment on Two Bridges’s due process claim, claiming it was protected by statutory immunity
under Ohio state law. The district court denied the city’s motion, finding that a state-law provision
exempting federal claims from statutory immunity applies. Youngstown now brings this appeal.
For the reasons that follow, we AFFIRM the judgment of the district court.
Case No. 22-3506, Two Bridges, LLC v. City of Youngstown
I.
Two Bridges bought property, including land and a building, at 15 Oak Hill in
Youngstown, Ohio in 2018. The building had been vacant for about four years when Two Bridges
bought it, and by 2020, several municipal code violations and related complaints had been lodged
against it. The city mailed multiple notices to Two Bridges in the spring and summer of 2019
advising that the building was in unacceptable condition—but it sent the notices directly to the
vacant building.1 No one at Two Bridges received the notices.
The Fire Chief and the city’s Code Enforcement Superintendent inspected the building on
June 12, 2020, to determine whether it posed a fire hazard. Among other things, they observed
that the roof apparently had sunk around 6 to 12 inches on all four sides of the building. From his
inspection, the Fire Chief concluded that the building posed a fire hazard and danger to human
life; he therefore considered the building an unsafe structure as defined by City Ord. § 1525.01(a)–
(b). Under § 1525.01(a)–(b), an “unsafe structure” is, among other things, one that presents a fire
hazard or is “otherwise dangerous to human life.” And § 1525.01(c) authorizes the local Fire Chief
to order the demolition of any unsafe structure in the case of an emergency. Due to “the extreme
deterioration of the property and the risk that it posed to potential vagrants . . . and first responders,”
the Fire Chief ordered an emergency demolition of the building under § 1525.01(c). (R. 27: Barry
Finley Affidavit, at PageID 420 ¶ 7; see also R. 25-1: Barry Finley Deposition Transcript, at
PageID 207 (Emergency Demolition Order)). A little over two months later, on August 22, 2020,
Youngstown demolished the building at 15 Oak Hill.
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Youngstown also attempted to mail notices directly to the property owner at two of his other business addresses.
But the mailings were returned by the U.S. Postal Services unclaimed.
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Case No. 22-3506, Two Bridges, LLC v. City of Youngstown
Two Bridges filed suit in Ohio state court after the demolition. In its two-count complaint,
Two Bridges brought one claim challenging the city’s emergency demolition ordinance as
violative of Ohio’s constitution and a second claim under 42 U.S.C. § 1983, asserting that
Youngstown deprived it of its property without due process of law, in violation of the Fourteenth
Amendment. Notably, Youngstown removed the case to federal court, acknowledging that Two
Bridges sought recovery pursuant to a federal statute, namely 42 U.S.C. § 1983. After the parties
completed discovery, Youngstown moved for summary judgment on both counts of the complaint.
Relevant here, as to Count 2—the § 1983 claim—the city argued that it was entitled to statutory
immunity. The district court granted summary judgment on count one—the state constitutional
claim—but denied it as to count two, finding that Two Bridges properly pleaded a federal cause
of action which is exempted from immunity under the Ohio Political Subdivision Tort Liability
Act, Ohio Rev. Code Ann. §§ 2744.01, et seq. Youngstown brought this timely appeal.
II.
In reviewing actions involving questions of state law, generally we apply state substantive
law and federal procedural law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78–79 (1938). This
principal has some application here where Youngstown seeks to invoke state statutory immunity
against Two Bridges’s claim—which also, at least according to the city, arises under Ohio law.
The first procedural issue we must address is one of jurisdiction. Youngstown asserts that we have
jurisdiction by virtue of Ohio Rev. Code Ann. § 2744.02(C), which provides that orders
determining the applicability of statutory immunity under the Act are treated as final decisions.
But we are governed by federal procedural law on the issue of jurisdiction over an interlocutory
appeal, not state law. Chesher v. Neyer, 477 F.3d 784, 793 (6th Cir. 2007). And ordinarily, orders
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Case No. 22-3506, Two Bridges, LLC v. City of Youngstown
denying summary judgment do not qualify as final orders over which we may exercise appellate
jurisdiction. Id.; see also 28 U.S.C. § 1291.
There are a few exceptions to this general rule under the collateral-order doctrine of Cohen
v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Under this doctrine, a district court’s
summary judgment decision is subject to interlocutory review by this court if it “(1) conclusively
determines the disputed question, (2) resolves an important issue completely separate from the
merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.” Sell v.
United States, 539 U.S. 166, 176 (2003) (cleaned up). Cases where a party has invoked an
immunity-from-suit defense, such as sovereign immunity, absolute immunity, or qualified
immunity, frequently fall into this category. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 147 (1993) (sovereign immunity); Nixon v. Fitzgerald, 457 U.S. 731, 742
(1982) (absolute immunity); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (qualified immunity to
the extent that it turns on a question of law). Both Youngstown and Two Bridges have cited cases
involving interlocutory appeals on decisions of qualified immunity to support our jurisdiction. But
we are not faced with such a claim here, and the analysis we would apply if we were—whether
the question of immunity rests solely upon a question of law—is inapt here. All is not lost,
however. As we explained in Black v. Dixie Consumer Products LLC, a party who loses on
summary judgment based on the court’s rejection of an immunity defense may immediately appeal
since “the core point of ‘immunity is its possessor’s entitlement not to have to answer for [its]
conduct in a civil damages action.’” 835 F.3d 579, 582 (6th Cir. 2016) (quoting Mitchell, 472 U.S.
at 525). Key to the equation is whether the immunity at issue would otherwise bar the opponent’s
claim. Thus, if the immunity in question provides protection from suit, rather than simply
protection from liability, then a decision rejecting that immunity satisfies Cohen’s call for
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Case No. 22-3506, Two Bridges, LLC v. City of Youngstown
conclusiveness, separateness and unreviewability and it is appropriate for our appellate review.
Pertinent here, Ohio Rev. Code Ann. § 2744 provides Ohio municipalities with a complete defense
from suit. See Range v. Douglas, 763 F.3d 573, 581 (6th Cir. 2014) (observing in relation to claim
for immunity under Ohio Rev. Code Ann. § 2744, that “[s]ince 2003, Ohio statutory immunity has
provided complete immunity from suit, which means there is interlocutory jurisdiction”); see also
Chesher, 477 F.3d at 793–94. We are thus satisfied that we have jurisdiction to consider this
appeal.
III.
We review the district court’s denial of Youngstown’s summary judgment motion de
novo. Render v. FCA US, LLC, 53 F.4th 905, 913 (6th Cir. 2022). Summary judgment is proper
only when there is no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) (citing FED. R. CIV. P.
56(c)). “A dispute of a material fact is genuine so long as ‘the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’” Render, 53 F.4th at 913 (quoting Kirilenko-
Ison v. Bd. of Educ. of Danville Indep. Schs., 974 F.3d 652, 660 (6th Cir. 2020)); see also Anderson
v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). We construe the evidence and afford “all
reasonable inferences” in favor of the nonmoving party in our review. Jackson v. City of
Cleveland, 925 F.3d 793, 806 (6th Cir. 2019) (quoting Burgess v. Fischer, 735 F.3d 462, 471 (6th
Cir. 2013)).
IV.
The Act provides that municipalities like Youngstown generally enjoy immunity from tort
liability. Id. § 2744.02(A)(1) (limiting liability for “political subdivisions”); see also id. §
2744.01(F) (broadly defining a political subdivision as a municipality or any entity “responsible
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Case No. 22-3506, Two Bridges, LLC v. City of Youngstown
for governmental activities in a geographic area smaller than that of the state”). But the law is
subject to certain exceptions. Several exceptions are found in § 2744.02(B) and apply in the
context of certain state-law claims. A separate exception applies to federal claims: municipalities
are not immune from “[c]ivil claims based upon alleged violations of the constitution or statutes
of the United States.” Id. § 2744.09(E). This carve-out applies to claims brought pursuant to 42
U.S.C. § 1983. See, e.g., Summerville v. City of Forest Park, 943 N.E.2d 522, 527 (Ohio 2010);
Patton v. Wood Cnty. Humane Soc’y, 798 N.E.2d 676, 681 (Ohio Ct. App. 2003); see also
Longstreth v. Franklin Cnty. Child. Servs., 14 F.3d 601 (Table), 601 (6th Cir. 1993) (per curiam)
(noting that political subdivisions are not immune from suits raising federal claims under § 1983).
Even so, a plaintiff who nominally brings a § 1983 claim that is, in substance, an action in tort is
not permitted to invoke § 2744.09(E). Instead, Ohio courts look to the “essential nature” of a
plaintiff’s civil action to determine whether the provision applies to a particular claim. Campbell
v. City of Youngstown, No. 06 MA 184, 2007 WL 4696963, at *3 (Ohio Ct. App. Dec. 31, 2007)
(citing Bram v. Cleveland, 647 N.E.2d 523, 525 (Ohio Ct. App. 1993)).
In arguing that the § 2744.09(E) carve-out does not apply here, Youngstown’s argument is
twofold, but based on a singular premise—that Two Bridges’s claim sounds in state tort law rather
than federal law, so the city is protected by statutory immunity. To reach this result, Youngstown
first posits that Two Bridges has made out a wrongful demolition claim under state law. Therefore,
the only exceptions from statutory immunity are those included in § 2744.02(B)(1)–(5). And since
none of those exceptions apply, the city is immune from suit. Its second argument, to the extent
that it is a separate argument, is a slight variation of the first: wrongful demolition claims that
involve allegations of federal constitutional violations are insufficient to escape the immunity
afforded by the statute. Under Youngstown’s analysis, § 2744.09(E), which exempts federal
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claims from the reach of statutory immunity, simply does not come into play. But bypassing the
applicability of § 2744.09(E) gets us nowhere. The central question of this appeal is whether the
district court erred in concluding that Two Bridges’s claim qualifies as a federal claim and is thus
exempt from statutory immunity.
We therefore start with the requirements for a procedural due process claim. We have
previously explained that a plaintiff can obtain relief under § 1983 for a violation of procedural
due process rights by showing that (1) he possesses a life, liberty or property interest protected by
the Due Process Clause, (2) he was deprived of this protected interest within the meaning of the
Due Process Clause, and (3) the state did not provide adequate procedural rights before depriving
him of his protected interest. See Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999); see also
Eaton v. Charter Twp. of Emmett, 317 F. App’x 444, 447 (6th Cir. 2008) (recognizing same in the
context of such a § 1983 claim arising from township’s demolition of a building without proper
notice). And “[g]enerally, the process that is due before the state may deprive an owner of property
includes notice to the owner prior to the deprivation and an opportunity for a predeprivation
hearing.” Harris v. City of Akron, 20 F.3d 1396, 1401 (6th Cir. 1994). The record shows that the
thrust of Two Bridges’s claim—that is, its “essential nature”—concerns these very elements.
Count 2 of the complaint specifically cites 42 U.S.C. § 1983 as the source of its claim and goes on
to allege facts to demonstrate that the city’s application of its demolition ordinance deprived Two
Bridges of its right to due process. For example, the complaint asserts that (1) municipal law
“requires no notice to a property owner” prior to an emergency demolition; yet (2) the federal
Constitution provides that “no person . . . shall be deprived of property without due process of
law”; and (3) “plaintiff was given no notice” before the emergency demolition of its building.
(R. 1-2: Complaint, at PageID 7 ¶ 8, 8 ¶¶ 22, 26). Viewing these allegations in context, it is
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Case No. 22-3506, Two Bridges, LLC v. City of Youngstown
apparent that the claim focuses on Youngstown’s alleged failure to afford Two Bridges appropriate
procedural safeguards before destroying its property. Indeed, Two Bridges expressly asserts that
the city’s actions “violate[d] its rights pursuant to the [Fourteenth] Amendment of the Constitution
of the United States.” And with respect to relief, Two Bridges seeks a declaration that the relevant
city ordinance is “unconstitutional under the [Fourteenth] Amendment.” Add to that, the
complaint follows the basic contours of a § 1983 claim; it avers that, as a result of Youngstown’s
application of its city ordinance, Two Bridges suffered a “deprivation of a right secured under the
Constitution or federal law” which was “caused by a person acting under color of state law.” Alkire
v. Irving, 330 F.3d 802, 813 (6th Cir. 2003) (citing Brock v. McWherter, 94 F.3d 242, 244 (6th Cir.
1996)). Such allegations are part and parcel to actions brought under § 1983. Id.
While Two Bridges’s pleadings consistently emphasize its deprivation of due process
under federal law, neither in this court nor before the district court has Youngstown pointed to any
evidence in the record that the company has invoked state tort law during this litigation. Thus,
accepting its argument would require us to construe the record in its favor rather than in favor of
the non-movant—something we cannot do. See Jackson, 925 F.3d at 806. And Two Bridges’s
singular reference to a “wrongful taking” in briefing during the proceedings below does not
suggest that it truly pursues a claim for “wrongful demolition” in tort as the city posits. Whatever
evidence may have been developed during discovery in this case, the city points to none supporting
its position. Under these facts, there is no reason to conclude that a tort claim, rather than a
constitutional claim, lies at the heart of Two Bridges’s suit.
Youngstown resists this conclusion, however, insisting that “assertions of constitutional
violations raised within the context of a wrongful demolition claim are insufficient as a matter of
law to invoke [the § 2744.09(E)] exception to immunity.” (Dkt. 30: Appellant Brief (emphasis
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added)). For support, Youngstown relies on a line of mostly unreported state cases in which the
plaintiffs raised federal constitutional issues in their complaints for wrongful demolition but failed
to include sufficient allegations to make out a claim under § 1983. In each of those cases, Ohio
courts found the § 2744.09(E) exception inapplicable solely because the pleadings contained scant
indicia that the plaintiffs truly sought relief under federal law—not because there exists a blanket
rule that claims relating to demolitions always sound in tort, as Youngstown seems to suggest. For
instance, in Campbell v. City of Youngstown, the appellate court found that the plaintiff’s complaint
was missing essential elements of a § 1983 action so there was no federal claim to which
§ 2744.09(E) should be applied. 2007 WL 4696963, at *4. And in Bram v. Cleveland, which
involved the emergency demolition of a property in Cleveland, the court found that the plaintiff’s
“vague assertion” of constitutional rights as a “general proposition” in a second amended
complaint failed to raise anything but a tort claim. 647 N.E.2d at 525. See also Broadview
Mortgage Company v. City of Cleveland, No. 61939, 1993 WL 76884, at *3 (Ohio Ct. App. Mar.
18, 1993). It is perhaps telling that, unlike defendant here, none of the defendants in those state
court actions removed the plaintiffs’ claims to federal court under federal question jurisdiction.
The plaintiffs’ claims in each of those cases, at their core, simply did not arise from federal law.
That is not the case here for reasons already explained.
In sum, whether a plaintiff can invoke the federal exception to statutory immunity depends
on the substance of his claim. Properly pleaded due process claims under the federal Constitution
are not transformed into tort actions simply because they are raised in the wake of a demolition.
See, e.g., Leath v. Cleveland, No. 102715, 2016 WL 193370, at *2–3 (Ohio Ct. App. Jan. 14, 2016)
(treating plaintiff’s demolition-related due process claims as constitutional rather than tortious in
nature); Bancplus Mortg. Corp. v. City of Cleveland, No. 65011, 1994 WL 258644, at *4 (Ohio
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Case No. 22-3506, Two Bridges, LLC v. City of Youngstown
Ct. App. June 9, 1994) (same); Pioneer Sav. & Loan Co. v. City of Cleveland, 479 F.2d 595, 598
(6th Cir. 1973) (same); Superior Sav. Ass’n v. City of Cleveland, 501 F. Supp. 1244, 1250 (N.D.
Ohio 1980) (same).
V.
The district court properly denied summary judgment to Youngstown because the
§ 2744.09(E) federal claim exclusion from immunity applies to Two Bridges’s § 1983 claim. We
therefore AFFIRM.
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