Cleary v. Cincinnati, 2007 Ohio 2797 (Ohio App. 6/8/2007)

Page 1

2007 Ohio 2797

Michael R. Cleary, Plaintiff-Appellant, v. City of Cincinnati, Defendant-Appellee.

Appeal No. C-060410.

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: June 8, 2007

Civil Appeal from Hamilton County Court of Common Pleas. Trial No. A-0007477.

Reversed and Cause Remanded.

Robert B. Newman and Lisa T. Meeks, for Plaintiff-Appellant,

J. Rita McNeil, City Solicitor, and Augustine Giglio, Assistant City Solicitor, for Defendant-Appellee.

OPINION.

CUNNINGHAM, Judge.

{¶1} In the third appeal of this matter, plaintiff-appellant Michael R. Cleary challenges the trial court's May 2, 2006, decision denying his motion for attorney fees under Section 1988, Title 42, U.S.Code, because he was not a prevailing party for purposes of awarding fees. Cleary had brought suit against defendant-appellee, the city of Cincinnati, under Section 1983, Title 42, U.S.Code, state statutes, and municipal ordinances, for damages resulting from the city's failure to provide proper notice of the demolition of Cleary's property located on Eastern Avenue in Cincinnati. In reviewing the extensive prior proceedings in this case, the trial court denied the award of fees, concluding that there had been no finding of a violation of Section 1983 and that "the case was decided on statutory grounds." Because the city had not challenged this court's and the trial court's prior rulings that Cleary had prevailed on his due-process claim, the conclusion that Cleary was a prevailing party for purposes of Section 1988 is now the law of the case.

Cleary I

{¶2} In November 2000, Cleary sued the city for violating his federal constitutional rights, alleging that the city had demolished his building and destroyed its contents without providing adequate notice and an opportunity to be heard on the matter. The city counterclaimed for the cost of the demolition.

{¶3} Cleary moved for partial summary judgment on the issue of liability, claiming that the demolition of his house violated his due-process rights and R.C. 119.09, and that the city's chosen manner of providing notice violated the due-process guarantees of the federal constitution.¹ The city also moved for summary judgment, claiming that Cleary lacked standing to bring the claims, and that he had not been denied due process because he had received actual notice of the proceedings before the Board of Building Appeals.

{¶4} The trial court noted that Cleary had sought partial summary judgment on the question "whether the City violated his constitutional rights with respect to the procedure the City used here regarding the demolition of the building, such that he would be entitled to damages." The trial court found that Cleary lacked standing to bring the damages claim. Thus the city was entitled to summary judgment.

{¶5} On July 31, 2002, the trial court journalized its decision after conducting a bench trial on the remaining claims. The trial court noted its earlier entry of summary judgment on one of Cleary's claims, and concluded that the "Cincinnati Municipal Code provisions here clearly constituted an affirmative legislative duty that requires the City to protect the rights of those who may own or have an interest in premises in the process of being condemned. The record clearly shows that the City failed to comply with the notice requirements" of the code. Therefore, the City's "failure * * * to comply with the [code] bars it from recovering demolition costs."

{¶6} Both parties appealed from this judgment. In Cleary v. Cincinnati (June 11, 2003), 1st Dist. Nos. C-020525 and C-020543 ("Cleary I"), this court held that Cleary had standing and reversed "the trial court's decision granting summary judgment to the city on Cleary's claim for damage to the property itself, and * * * remand[ed] the case to the trial court to consider that claim on the merits."

{¶7} In resolving the city's assignments of error, this court also held that (1) the city had failed to comply with the notice provisions of state statutes and of the Cincinnati Municipal Code; (2) the city's letters to Cleary were "not reasonably calculated" to provide notice of the proceedings because "the city continued to send letters by ordinary mail to an address that it knew was defective"; and (3) "[e]ven if Cleary had actual notice, it did not relieve the city of its burden" to provide proper notice. All of these points were primary allegations of Cleary's original complaint in which he had claimed a violation of his civil rights when the city had demolished his building and destroyed its contents without providing constitutionally adequate notice and an opportunity to be heard on the matter.

Retrial Before the Magistrate

{¶8} On remand to the trial court, Cleary again moved for attorney fees under Section 1988. Cleary argued that this court's holding that the city had failed to provide reasonable notice indicated that he had prevailed on his Section 1983 claims grounded in violations of due process. The trial court referred the entire matter to a magistrate. In his pretrial memorandum, Cleary identified "the question of the value of the house" as the sole issue for trial.

{¶9} At the July 2004 hearing before the magistrate, Cleary again asserted that this was "a civil rights matter," and that, in light of the Cleary I decision, "the notice questions are out of the way, and * * * the only issue before [the magistrate was] the issue of value." Cleary presented evidence that the measure of his damages was at least $7,000, and that the Hamilton County Auditor had valued the building at $5,000.

{¶10} In its September 28, 2004, written decision, the magistrate agreed with Cleary's view of the scope of the hearing. It stated that the case was remanded "to determine the merits of [Cleary's] claim for damages, specifically the value of the real estate. * * * Questions regarding whether Cleary received notice of the demolition are not before this court, only the value of the demolished property." Despite evidence of the value of the buildings and the property, the magistrate concluded that Cleary was not entitled to any damages because the building had "zero value."

{¶11} Cleary filed an objection to the magistrate's decision. In its response to the objection, the city stated that it "reserve[d] any arguments and defenses as to whether [Cleary] submitted a prima facie case as to" his claim for violations of Section 1983. The trial court overruled Cleary's objection and affirmed the magistrate's decision without comment.

Cleary II

{¶12} But only Cleary appealed the trial court's adoption of the magistrate's decision. Despite its contention that the magistrate had improperly concluded that the due-process issue was not before it, the city did not appeal from the trial court's decision or separately assign as error² the magistrate's interpretation of Cleary I.

{¶13} In Cleary v. Cincinnati (Feb. 8, 2006), 1st Dist. No. C-050101 ("Cleary II"), we reversed the trial court's decision on the measure of damages because "[n]o witness ever stated that no one would have ever bought the building or that it had no value." Thus the trial court's judgment was not supported by competent, credible evidence. The case was remanded to the trial court "to determine a value for the building based on the evidence presented." This court did not disturb the magistrate's conclusion, adopted by the trial court, that the constitutional notice elements of Cleary's claim had been definitively determined in Cleary I.

The Fee Hearing

{¶14} On remand from Cleary II, the trial court reviewed the evidence before it and determined the value of Cleary's damages at $7,000. Neither party has appealed from that judgment. Cleary renewed his motion for attorney fees and costs in the amount of $43,786. The trial court held a hearing on the fee petition and reviewed Cleary's evidence concerning the reasonableness of the requested hourly rate and the number of hours expended to prosecute his civil-rights claims. The trial court concluded that "[t]here is very little dispute about the amount and reasonableness of the fees."

{¶15} But in its May 2006 decision, the trial court denied Cleary's motion for attorney fees because it determined that Cleary had prevailed only "on statutory grounds" rather than on the basis of a due-process violation under Section 1983, and that Cleary thus was not a prevailing party for purposes of a fee award. This appeal followed.

Who is a Prevailing Party?

{¶16} Prevailing plaintiffs in Section 1983 actions are entitled to reasonable attorney fees under the Civil Rights Attorney's Fees Awards Act of 1976, which added fee-authorizing language to Section 1988.³ The fee award "ensure[s] effective access to the judicial process to persons with civil-rights grievances."⁴

{¶17} The threshold determination for a court to award attorney fees under Section 1988 is whether the plaintiff is a prevailing party.⁵ This threshold is crossed in various ways. In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Services, the United States Supreme Court summarized its previous case law and held that, to be a prevailing party for fee purposes, a litigant must have obtained a judgment on the merits, a consent decree, or some other judicially sanctioned change in the legal relationship of the parties,⁶ and must have succeeded on any significant issue in the Section 1983 litigation that has achieved some of the benefit the party sought in bringing suit.⁷

{¶18} For example, in Cleveland Constr., Inc. v. Cincinnati, we held that a municipality's failure to follow the mandate of its own ordinance governing the selection of a lowest and best bidder for a construction contract resulted in the unconstitutional deprivation of an unsuccessful bidder's property interest in the contract award.⁸ We upheld the trial court's award of attorney fees because the plaintiff's ...