[Cite as Maluke v. Lake Twp., 2012-Ohio-3661.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

EDWARD MALUKE 

 Plaintiff-Appellant 

-vsLAKE TOWNSHIP, ET AL 

 Defendants-Appellees 

JUDGES: 

: Hon. Patricia A. Delaney, P.J. 

: Hon. W. Scott Gwin, J. 

: Hon. William B. Hoffman, J. 

: 

: 

: Case No. 2012-CA-00001 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of 

Common Pleas, Case No. 2009CV04080 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: August 13, 2012 

APPEARANCES: 

For Plaintiff-Appellant For Defendants-Appellees 

EDWARD GILBERT JOHN LATCHNEY 

One Cascade Plaza, Suite 825 TOMINO & LATCHNEY, LLC, LPA 

Akron, OH 44308 803 E. Washington Street, Suite 200 

 Medina, OH 44256 
[Cite as Maluke v. Lake Twp., 2012-Ohio-3661.]

Gwin, J. 

{¶1} Plaintiff Edward Maluke appeals a summary judgment of the Court of 

Common Pleas of Stark County, Ohio, entered in favor of Lake Township and its 

Trustees Ellis Erb, Galen Stoll, and John Arnold, all named in their official capacity only. 

The trial court found political subdivision immunity barred appellant’s tort claim. 

Appellant assigns two errors to the trial court: 

{¶2} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

BY FAILING TO ADDRESS PLAINTIFF’S ALLEGATION OF VIOLATIONS OF OHIO 

R.C. 4513.61 AND R.C. 2744. 

{¶3} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

BY IMPROPERLY CONSIDERING HEARSAY EVIDENCE AND NOT RECOGNIZE 

[SIC] THE GENUINE DISPUTE OF MATERIAL FACTS.” 

{¶4} Appellant’s statement pursuant to Loc. R. 9 asserts there are genuine 

issues of material fact such that summary judgment was inappropriate. 

{¶5} In 1994, the Court of Common Pleas granted a permanent injunction to 

the Lake Township Zoning Inspector against appellant prohibiting him from storing 

“inoperable, junk, and unlicensed motor vehicles and miscellaneous debris” on his 

premises. In May 2006, the zoning inspector received a complaint regarding nuisance 

conditions. After conducting hearings, the township contracted with a private company 

to remove vehicles and other items on January 18, 2007. Appellant brought suit on 

October 21, 2009, alleging his property was not abandoned, was not on a public street, 

and was operable and properly maintained. 
Stark County, Case No. 2012-CA-00001 3 

{¶6} Appellant originally filed his complaint in Stark County Common Pleas 

Court, alleging violations of R.C. 4513.61 et seq., R.C. 505.173 and 505.871, seizure of 

various items of his personal property without notice, and, violation of his equal 

protection rights. Appellant demanded return of his property. Appellees removed the 

case to Federal Court but when appellant filed a motion to dismiss his constitutional 

claim, the court returned the matter to Stark County Common Pleas Court. 

{¶7} The trial court found summary judgment was appropriate based upon 

political subdivision immunity provided by Chapter 2744 of the Ohio Revised Code. The 

court also found a two-year statute of limitations had run, barring appellant’s claims. 

Civ. R. 56(C) states: 

{¶8} Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, 

transcripts of evidence, and written stipulations of fact, if any, timely filed 

in the action, show that there is no genuine issue as to any material fact 

and that the moving party is entitled to judgment as a matter of law. No 

evidence or stipulation may be considered except as stated in this rule. A 

summary judgment shall not be rendered unless it appears from the 

evidence or stipulation, and only from the evidence or stipulation, that 

reasonable minds can come to but one conclusion and that conclusion is 

adverse to the party against whom the motion for summary judgment is 

made, that party being entitled to have the evidence or stipulation 

construed most strongly in the party's favor. A summary judgment, 
Stark County, Case No. 2012-CA-00001 4 

interlocutory in character, may be rendered on the issue of liability alone 

although there is a genuine issue as to the amount of damages. 

{¶9} A trial court should not enter a summary judgment if it appears a material 

fact is genuinely disputed, nor if, construing the allegations most favorably towards the 

non-moving party, reasonable minds could draw different conclusions from the 

undisputed facts, Houndshell v. American States Insurance Company, 67 Ohio St. 2d 

427 (1981). The court may not resolve ambiguities in the evidence presented, Inland 

Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc., 15 Ohio St. 3d 

321 (1984). A fact is material if it affects the outcome of the case under the applicable 

substantive law, Russell v. Interim Personnel, Inc., 135 Ohio App. 3d 301 (1999). 

{¶10} When reviewing a trial court’s decision to grant summary judgment, an 

appellate court applies the same standard used by the trial court, Smiddy v. The 

Wedding Party, Inc. 30 Ohio St. 3d 35 (1987). This means we review the matter de 

novo, Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186. 

{¶11} The party moving for summary judgment bears the initial burden of 

informing the trial court of the basis of the motion and identifying the portions of the 

record which demonstrate the absence of a genuine issue of fact on a material element 

of the non-moving party’s claim, Drescher v. Burt , 75 Ohio St. 3d 280 (1996). Once the 

moving party meets its initial burden, the burden shifts to the non-moving party to set 

forth specific facts demonstrating a genuine issue of material fact does exist, Id. The 

non-moving party may not rest upon the allegations and denials in the pleadings, but 

instead must submit some evidentiary material showing a genuine dispute over material 

facts, Henkle v. Henkle, 75 Ohio App. 3d 732 (1991). 
Stark County, Case No. 2012-CA-00001 5 

{¶12} In support of their motion for summary judgment, appellees presented the 

affidavit of Stephen Lacey, the Lake Township Zoning Inspector. His affidavit recited 

the facts leading up to the removal of appellant’s property. Attached to the motion were 

various documents pertaining to the progress of the case in federal court, a copy of the 

permanent injunction, letters appellees alleged were sent to appellant at the property 

itself, 916-18 Camelia Street, as well as some sent to 1001 Clara Avenue, in care of 

appellant’s sister. Appellant does not reside on the Camelia Street property and it is 

apparently a vacant duplex. The motion for summary judgment submitted photographs 

of the items stored on the property, a copy of the notice of hearing on the nuisance 

complaint, and notarized transcripts of two hearings appellees held on November 27, 

2006 and December11, 2006. According to the transcripts, appellant appeared at both 

hearings and discussed the matter at some length. 

{¶13} In response to the motion for summary judgment, appellant filed his own 

affidavit, challenging various statements made in Lacey’s affidavit. Appellant’s affidavit 

alleged he did not receive any of the eight notices appellees alleged they mailed to him. 

Appellant challenged the photographs of the property, claiming no proper foundation 

was laid to introduce them, and also stated: “I cannot verify all of these photographs 

were taken on my property.” Affidavit of appellant, paragraph eight. Appellant stated 

the property stored was a 1989 Lincoln, a 1953 Dodge, a 1973 Chevy van, a boat, a 

Honda ATV, and three trailers. His affidavit stated they were operable, working and not 

a nuisance. 

{¶14} Appellant argues the trial court improperly considered hearsay evidence. 

He asserts that although Lacey’s affidavit alleges he is a township inspector, he does 
Stark County, Case No. 2012-CA-00001 6 

not state his duties or that he is the keeper of the records of the township. Lacey’s 

affidavit does not allege he personally took any of the photographs of the property. 

Appellant also asserts the towing company appellees allege they contracted with has no 

record of when the vehicles were removed or where they were taken. 

{¶15} Appellant’s affidavit also stated he has no recollection of appearing at any 

hearings and did not sign the visitor registry. His name is printed rather than written in 

cursive, and appellant asserts anyone could have put his name on the paper. 

{¶16} At issue is whether appellant’s affidavit, challenging most of the 

allegations in Lacey’s affidavit, was sufficient to create a genuine issue of material fact. 

Affidavits which merely set forth legal conclusions or opinions are insufficient to meet 

the requirements of Civ. R. 56. Tolson v. Triangle Real Estate, 10th Dist. No. 03AP715, 2004-Ohio-2640, ¶ 12. “Otherwise, a party could avoid summary judgment under 

all circumstances solely by simply submitting such a self-serving affidavit containing 

nothing more than bare contradictions of the evidence offered by the moving party.” TJX 

Companies, Inc. v. Hall, 183 Ohio App.3d 236, 2009–Ohio–3372, 916 N.E.2d 862, ¶ 30, 

citations deleted. 

{¶17} However, self-serving affidavits may be offered relative to a disputed fact 

rather than a conclusion of law. CityMortgage, Inc. v. Ferguson, 5th Dist. No. 2006-CA00051, 2008-Ohio-556, ¶ 29, citations deleted. In a dispute over actual notice, an 

uncontradicted sworn statement is ordinarily sufficient to overcome a presumption that 

notice was actually received. Id. at paragraph 32. The Ferguson case dealt with an 

allegation the defendant never received one notice from the bank. Here, appellant’s 

affidavit asserts he never received eight notices, some sent to two different addresses. 
Stark County, Case No. 2012-CA-00001 7 

{¶18} Further, the transcripts show appellant appeared at two township hearings 

regarding the property before the appellees removed the items. Appellant does not deny 

appearing at the hearings but only asserts he has no recollection of doing so. 

Appellant’s affidavit does not affirmatively state the photographs are inaccurate, but only 

that he cannot verify they were all taken at his premises. We find appellant’s challenges 

to the authenticity of the notices and photographs are self-serving. 

{¶19} Appellant characterizes Lacey’s affidavit as hearsay. Lacey alleged he 

was the zoning inspector but did not elaborate on his duties, nor did he allege he was 

the keeper of appellee’s records. However, he did allege he had personal knowledge of 

the facts. Lacey’s affidavit did not identify who took the photographs, but alleges the 

photographs are true and complete copies. The transcripts of the hearings showing 

appellant was in attendance and was heard are notarized. We conclude there was 

evidence from which the trial court could find appellant had sufficient notice. 

{¶20} The trial court properly found the abatement of a public nuisance is a 

governmental function as a matter of law, Judgment Entry of December 5, 2011, 

paragraph two, citing Robert Huge v. Columbia Township Board of Trustees 9th Dist. 

90CA004813, 1990WL 136072. 

{¶21} In Colbert v. City of Cleveland, 99 Ohio St. 3d 215, 2003-Ohio-3319, 790 

N.E. 2d 781, the Ohio Supreme Court described the statutory framework of political 

subdivision immunity. Determining whether there is immunity from tort liability involves 

a three-tiered analysis, the starting point being the general rule that a political 

subdivision is immune from liability. The second tier of the analysis requires the court to 

decide if any of the statutory exceptions to political subdivision liability. Thirdly, if there 
Stark County, Case No. 2012-CA-00001 8 

is an exception to immunity, then the court must explore whether the political 

subdivision has a defense. Id. at ¶¶ 7-9, citations deleted. 

{¶22} As for the employees of a political subdivision, they are immune from 

liability unless their acts and omissions were manifestly outside the scope of their 

employment or professional responsibilities, the acts or omissions were made with 

malicious purpose, bad faith, or wanton or recklessly, or if liability is imposed expressly 

on the employee by the Revised Code. Appellant’s complaint names the trustees in 

their official capacity only, and as the trial court correctly found, it does not allege any 

actions which would ascribe personal liability to them. 

{¶23} In his response to the Motion for Summary Judgment, appellant argued 

appellees did not have immunity from liability pursuant to R.C. 2744.02 (B)(5), because 

appellees failed to comply with R.C. 4513.63, 505.173, and 505.871 governing the 

removal, storage, and disposal of junk motor vehicles. The statutes provide for notice to 

the owner of a vehicle removed by law enforcement officers after being abandoned on 

public property or left on private property without the permission of the owner of the 

property. The statutes do not apply here. 

{¶24} Appellees demonstrated there was a permanent injunction prohibiting 

appellant from storing these items on the premises. 

{¶25} The trial court found there were no exceptions to the immunity, and the 

township cannot be held civilly liable for the removal of junk vehicles after it had found 

the vehicles and other property were a public nuisance threatening the public health, 

safety, and welfare. We find no error. 
Stark County, Case No. 2012-CA-00001 9 

{¶26} Because we find the trial court did not err in finding statutory immunity 

applied, we do not reach the issue of the statute of limitations. 

{¶27} The first and second assignments of error are overruled. 

{¶28} For the foregoing reasons, the judgment of the Court of Common Pleas of 

Stark County, Ohio, is affirmed. 

By Gwin, J., 

Delaney, P.J., and 

Hoffman, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

 _________________________________ 

WSG:clw 0723 HON. WILLIAM B. HOFFMAN 
[Cite as Maluke v. Lake Twp., 2012-Ohio-3661.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

EDWARD MALUKE : 

 : 

 Plaintiff-Appellant : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

LAKE TOWNSHIP, ET AL : 

 : 

 : 

 Defendants-Appellees : CASE NO. 2012-CA-00001 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment 

of the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs to appellant. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN