[Cite as Cardinal Joint Fire Dist. v. Kalan , 2020-Ohio-3609.]

Atty. David Comstock, Jr., Bonezzi Switzer Polito & Hupp Co., LPA, 4137 BoardmanCanfield Road, Suite 101, Canfield, Ohio 44406, and Atty. Mark R. Fortunado, 3296 Stones Throw Avenue, Poland, Ohio 44514, for Plaintiffs-Appelle es and
Frank Kalan, Pro Se, 20-1 Montgomery Drive, Canfield, Ohio 44406, DefendantAppellant. 

## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT MAHONING COUNTY

CARDINAL JOINT FIRE DISTRICT ET AL., Plaintiffs-Appellees,

v. FRANK KALAN ET AL.,

Defendants-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 19 MA 0051

Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 16-CV-2787

BEFORE: David A. D’Apolito, Cher y l L. Waite, Carol Ann Robb, Jud g es.

JUDGMENT: Affirmed.– 2 –

Case No. 19 MA 0051 Dated: June 30, 2020

D’Apolito, J. {¶1} Pro se Appellant, Frank Kalan, appeals from the March 27, 2019 judgment of the Mahoning County Court of Common Pleas adopting a magistr ate’s decision determining that his property is a nuisance and ordering that i t be demolished. On appeal, Appellant asserts the trial court abused its discretion in adop ting the magistrate’s decision. Appellant alleges he was denied “meaningful access t o the courts” and his due process rights were violated. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

{¶2} Appellant is the owner of real property located at 514 Hickory Hollow Drive, Canfield, Mahoning County, Ohio (“property”). The property has been in disrepair for some time. As a result, Appellees, Cardinal Joint Fire Distric t and City of Canfield, conducted several inspections beginning in April 2013. Photogr aphs were taken and numerous deficiencies and ordinance violations were noted. Fol lowing a second inspection in March 2016, Appellant was convicted in Canfield M ayor’s Court with violating multiple ordinances related to the unsafe nature of h is property. {¶3} On October 17, 2016, Appellees filed a complaint against Appell ant to authorize the demolition of his property. The complaint allege s the property is not in a habitable condition, is not able to be brought up to code, and is a nuisance. Appellant filed an answer denying the allegations. {¶4} Thereafter, Appellees filed an amended complaint on August 24, 2017 against Appellant and added as a defendant the mortgagee of the property, Home Savings and Loan Company of Youngstown, Ohio (“Home Savings”). 1 The complaint specifically alleges that Appellant failed to abate the violati ons of City of Canfield Ordinances 1387.030, 1387.070, 1387.080, 1387.100, 1387.110, 13 87.130, and 1387.180, and that he has continued to maintain his property in an unsafe manner, i.e., a nuisance under 1313.01. The complaint sought an order for th e property to be brought

1 Home Savings is not a named party in this appeal.– 3 –

Case No. 19 MA 0051 up to code within 60 days. Home Savings filed an answer admitt ing its interest in the property but denying the allegations. {¶5} On September 26, 2017, Fire Chief Donald Hutchison filed an aff idavit averring the following:

8. During the [July 2017] inspe ction, the following deficiencie s were noted:

a. The exits, aisles, corridors and stairways were obstructed o r blocked by household trash and miscellaneous items. All exit doorways were specifically blocked.

b. There were holes in the attic ceiling and scuttle covers wer e closed. There was water damage on every story of the home, including th e ceiling and floors, making the floors flex to the point of being unsafe to walk upon.

c. There were holes present throughout the building which would permit rapid fire spread.

d. The top plate of the first floor and floor joist were rotted away allowing a direct opening into the basement just inside the front door ent ryway. This poses a significant hazard to anyone entering the building, inc luding guests or firefighters.

e. Every basement window has been removed, allowing pests and a nimals to inhabit the building. During the inspection, a cat was obser ved running from the exterior [of] the home into the basement.

f. An extreme amount of miscellaneous household furnishings, tr ash, and used material was stacked to a height greater than the windows which would not permit an individual to escape from the home in the e vent of an emergency. Likewise, it would not permit the rescue of any indi viduals within the dwelling from the exterior by first responders.– 4 –

Case No. 19 MA 0051 g. Miscellaneous waste and oily rags were found loose within th e home; they were not maintained in metal containers to prevent spontan eous combustion. This pre[s]ents an immediate fire hazard.

h. The electrical panel did not have a cover. In addition, the panel is exposed to rain water which continually runs into the basement through the conduit. This condition makes it impossible for the electrical company t o re-establish power to the dwelling. The electrical system must be updated an d made compliant with current code.

9. * * * [Appellant] has been instructed to make repairs on num erous prior occasions, but has failed to do so. * * *

10. * * * [N]ot only has [Appellant] failed to comply with prio r orders but the conditions of the house have continued to deteriorate. In Affia nt’s opinion,
the home is in the worst condition it has been since the initia tion of the inspections at the subject premises.

11. Affiant has observed no improvement or correction to any of the previously issued citations.

12. In Affiant’s opinion, the home poses an immediate life and health hazard to not only occupant but to any visitor to the dwelling.

13. The conditions of the house warrant either immediate correc tion or demolition in order to abate the life hazards.

14. The hazards are such that this Court should order that the “Do Not Enter” signs remain in place and that only certified constructi on personnel be permitted to enter the premises. Furthermore, this Court sho uld require that the property * * * remain uninhabited until all improvemen ts are made *
* *

15. Without repairs being initiated and substantially completed immediately, Affiant believes that the only reasonable alternative to protec t life safety is– 5 –

Case No. 19 MA 0051 the demolition of the structure. Affiant would ask that this Co urt order the demolition of the structure if the repairs are not substantiall y * * * completed within 60 days.

(9/26/2017 Affidavit of Fire Chief Hutchison) {¶6} Attached to Fire Chief Hutchison’s affidavit are photographs in dicating the “failed” status of the inspection and revealing the deplorable condition of Appellant’s property. {¶7} On December 15, 2017, Appellees filed a motion for summary judg ment. On April 16, 2018, Appellant filed an opposition. About a week later, the trial court overruled Appellees’ motion for summary judgment. {¶8} A bench trial was held before a magistrate on July 16, 2018. {¶9} Fire Chief Hutchison testified that Appellant’s property was in spected on multiple occasions, beginning in 2013, and has a number of defe cts. (Plaintiffs’ Exhibits 4, 6, 7, 9-11, 13-24). Appellees issued orders to Appellant to abate the defects. (Plaintiffs’ Exhibits 3, 7, and 12). However, none of the violations were c orrected. Fire Chief Hutchison noted several areas of the property that need to be r epaired, made safe, and brought into code compliance, including the roof, electrical sy stem, and flooring. He further noted other problem areas of the property, including ac cumulations of trash, open windows, and impeded means of ingress and egress. The property has no electric, gas, or heat services. The violations constitute fire, safety, and health hazards. {¶10} City of Canfield Zoning Inspector Michael Cook also testified r egarding the unsafe conditions of the property. He focused on various areas , including the roof and debris throughout the house, as well as court records of ordina nce violations. {¶11} Appellant testified he was under a guardianship imposed by the Mahoning County Probate Court when the inspections first began in 2013. All notices and reports were also sent to the guardian. The guardianship was converted to a limited guardianship in December 2015 and was later terminated by the court in May 2 017. (Defendant’s Exhibit A). Appellant indicated he was not currently living at his property but was instead residing in one of his automobiles. He confirmed that the roof was in bad condition and that the doorways were blocked by debris. Appellant also testi fied about his plans to– 6 –

Case No. 19 MA 0051 repair the property. Appellant indicated he has the financial and physical means to make the necessary repairs but has not done so. {¶12} On August 7, 2018, the magistrate filed a decision determining Appellant’s property to be a nuisance and ordering him to make repairs. A re-inspection of the property was ordered to be done on October 30, 2018. No object ions were filed. On August 23, 2018, the trial court adopted the magistrate’s decis ion. {¶13} A status hearing was held before the magistrate on November 13, 2018. {¶14} Fire Chief Hutchinson testified that on re-inspection, the roof had still not been repaired and its condition was in fact worse; the accumula tion of trash throughout the house was worse; the amount of trash impeded ingress and eg ress; the windows remained open; and the utilities remained disconnected. Zoning Inspector Cook testified that the property was in far worse condition after the re-inspe ction. Photographs showing the condition of the property were admitted into evidence witho ut objection. (Plaintiffs’ Exhibit 26 A-M). Appellees’ inspection report revealing the vi olations was also admitted without objection. (Plaintiffs’ Exhibit 27). {¶15} Appellant did not attend the re-inspection. Appellant testifie d he intended to make repairs on his own in July 2018 but was unable to becau se he hurt his back. Appellant admitted, however, that he had no documentation from a physician regarding his claimed medical condition. Appellant also stated he did no t have the full amount of funds to hire a contractor. Although he had $3,000 available t o buy roofing shingles, Appellant testified he did not purchase any. Appellant admitte d that he failed to perform any work on his property. {¶16} On January 2, 2019, the magistrate filed a decision again findi ng Appellant’s property to be a nuisance and ordering that it be demolished. Appellant filed objections two weeks later. Appellees filed a reply on February 4, 2019. The trial court adopted the magistrate’s decision on March 27, 2019. 2 {¶17} Appellant filed a timely pro se notice of appeal and raises two assignments of error. 3

2 The trial court noted that Appellant failed to follow the mand ates of Civ.R. 53(D)(3)(b)(ii) and (iii). Nevertheless, the court reviewed the magistrate’s decision and found no error of law or other defect.

3 The trial court granted Appellant’s motion for stay.– 7 –

Case No. 19 MA 0051 ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT 1)
ACCEPTED THE DECISION OF THE MAGISTRATE AND FOUND FOR THE PLAINTIFFS WHEN THE PROCEEDINGS BELOW FAILED TO
PROVIDE THE DEFENDANT/APPELLANT HIS CONSTITUTIONALLY REQUIRED, MEANINGFUL ACCESS TO THE COURTS.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO APPLY THE LAW AND EQUITY TO THE PARTICULAR FACTS OF THE CASE SUB JUDICE AND IN SO DOING, DENIED THE
DEFENDANT/APPELLANT HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.

{¶18} In his brief, Appellant sets forth both assignments of error in a combined fashion. Thus, for ease of discussion and because his assignme nts are interrelated, we will also consider them together. {¶19} “An appellate court reviews the trial court’s adoption of a magistrate’s decision under an abuse of discretion standard. Proctor v. Proctor , 48 Ohio App.3d 55, 548 N.E.2d 287 (3d Dist.1988). The trial court’ s determination will only be reversed where it appears the trial court’s action was unrea sonable or arbitrary. Id. ” Kurilla v. Basista Holdings, LLC , 7th Dist. Mahoning No. 16 MA 0101, 2017-Ohio-9370, ¶
17. {¶20} Appellant first maintains the trial court erred in adopting the magistrate’s decision because he was denied “meaningful access to the courts .” The record, however, does not support Appellant’s contention. {¶21} Appellant blames his prior guardian alleging that she had deple ted all of his funds and then “bolted” from the proceedings. (11/27/2019 Appe llant’s Brief p. 5). Thus, Appellant asserts that because he lacked the monetary funds, he was unable to make the necessary repairs to his property. At the July 16, 2018 bench trial, however, Appellant indicated that he in fact did have the financial and physical m eans to make the necessary– 8 –

Case No. 19 MA 0051 repairs but had still not done so. The trial court granted him more time and scheduled a re-inspection of the property to take place on October 30, 2018

. {¶22} The re-inspection revealed that Appellant still made no repairs and his property was actually in worse condition. At the November 13, 2018 status hearing, Appellant claimed he had a back injury. Appellant admitted, ho wever, that he had no documentation from a physician regarding his claimed medical co ndition. Appellant also admitted that he failed to perform any work on his property. A ppellant presented no
evidence that he bough t any necessary supplies or entered into any construction contracts in order to remedy the violations. {¶23} The record further establishes that Appellees and the trial cou rt took Appellant’s prior situation into account and addressed his issu es. The court considered Appellant’s prior guardianship, his monetary and personal injur y claims, and the fact that he made no efforts to remedy his nuisance property. Appellant’ s assertion that he was denied “meaningful access to the courts” is unfounded. {¶24} Appellant also maintains the trial court erred in determining h is property is a nuisance and issuing an order of demolition, thereby violatin g his due process rights.

[T]he due-process rights provided by the Fourteenth Amendment a nd those provided by Article I, Section 16 of the Ohio Constitution are
coextensive. Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540, 544- 545, 38 N.E.2d 70 (1941). The fundamental requisites of due pro cess of law in any proceeding are notice and the opportunity to be heard. Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

In re B.C. , 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 17. {¶25} City of Canfield Ordinance 1313.01 defines “nuisance” as:

All buildings or structures which are structurally unsafe or no t provided with adequate egress, or which constitute a fire hazard, or are othe rwise dangerous to human life or which in relation to existing use co nstitute a– 9 –

Case No. 19 MA 0051 hazard to health by reason of inadequate maintenance, dilapidat ion, or obsolescence, are, for purposes of this chapter, “unsafe buildi ngs.” All such unsafe buildings are declared to be public nuisances and shall be abated by repair and rehabilitation or by demolition in accordance wit h the procedure of this chapter.

{¶26} Ordinance 1313.02 states in part:

The Fire Chief shall examine or cause to be examined every buil ding or structure or portion thereof reported as or believed to be an u nsafe building as defined in Section 1313.01 and shall give written notice to the owner or owners of record * * *. Written notice shall specifically state the defects that cause the building to be unsafe and shall state that the work s hall commence within thirty days and be continued either to complete the specified repairs or improvements or to demolish and remove the building or structure or portion thereof, leaving the premises in a clea n, safe and sanitary condition, subject to the approval of the Fire Chief[. ]

{¶27} Ordinance 1313.03 provides in part: “Proper service of such not ices shall be by personal service, residence service or by registered mail * * * [.]”

{¶28} Ordinance 1313.06 states in part:

In case the owner of record or the purchaser under a land contr act shall fail, neglect or refuse to comply with the notice to repair, rehabili tate or demolish and remove such building or structure or portion thereof, such party shall be subject to penal provisions herein and the Fire Chief shall proceed to have the building or structure or portion thereof demolished an d removed from the premises, leaving the premises in a clean, safe and sa nitary condition * * *[.]

{¶29} The record before us, including the inspection reports and test imony of Fire Chief Hutchison and Zoning Inspector Cook, support the finding that Appellant’s property is a nuisance, i.e., “structurally unsafe,” “not provided with adequate egress,” “constitute– 10 –

Case No. 19 MA 0051 a fire hazard,” “dangerous,” and “hazard to health.” See Ordinance 1313.01. The record shows that Appellees complied with all of the notice requiremen ts, beginning in 2013, and gave Appellant ample periods of time, including additional time , to make and complete the necessary repairs in order to avoid an order of demolition. See Ordinance 1313.02,
1313.03 and 1313.06. {¶30} In addition to the notices, Appellant was also provided an oppo rtunity to be involved in the litigation due to the filing of Appellees’ comp laint in 2016, and amended complaint in 2017. Appellant was represented by counsel and pa rticipated in all aspects of the litigation, including testifying at both the bench trial and status hearing in 2018, as well as filing objections to the magistrate’s decision. {¶31} Accordingly, the record does not support Appellant’s argument t hat his due process rights were violated as he was given notice and an oppo rtunity to be heard prior to the trial court’s order to have his property demolished for violating the requisite Canfield Ordinances. See In re B.C.
, supra, at ¶ 17. {¶32} Appellant’s first and second assignments of error are without m erit.

CONCLUSION

{¶33} For the foregoing reasons, Appellant’s assignments of error are not welltaken. The judgment of the Mahoning County Court of Common Ple as adopting the magistrate’s decision determining that Appellant’s property is a nuisance and ordering that it be demolished is affirmed.

Waite, P.J., concurs.
Robb, J., concurs.[Cite as Cardinal Joint Fire Dist. v. Kalan , 2020-Ohio-3609.]

For the reasons stated in the Opinion rendered herein, the assi gnments of error are overruled and it is the final judgment and order of this Co urt that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed . Costs to be taxed against the Appellant. A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Proc edure. It is ordered that a certified copy be sent by the clerk to the trial court to car ry this judgment into
execution.

NOTICE TO COUNSEL
This document constitutes a final judgment entry.