[Cite as Alliance v. Baker, 195 Ohio App.3d 186, 2011-Ohio-3810]


                                 COURT OF APPEALS
                                STARK COUNTY, OHIO
                             FIFTH APPELLATE DISTRICT




CITY OF ALLIANCE ET AL.,

                       Appellees and
                    Cross-Appellants.

v.

BAKER ET AL.,

                       Appellants and
                     Cross-Appellees.

     JUDGES:
:    Hon. W. Scott Gwin, P.J.
:    Hon. John W. Wise, J.
:    Hon. Julie A. Edwards, J.
:
:
:    Case No. 2010-CA-00324
:
:
:    OPINION




CHARACTER OF PROCEEDING:                      Civil appeal from the Stark County Court of
                                              Common Pleas, Case No. 2010CV1582


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                       August 1, 2011
Stark County, Case No. 2010-CA-00324                                                      3



APPEARANCES:

Robert R. Hunter Jr.,                         Robert Cyperski and James R. Vaughn,
for appellees.                                for appellants.




                GWIN, Presiding Judge.

         {¶1}   Defendants-appellants, Del R. Baker, D&K Properties, D&K Properties

L.L.C., and D&K Capital Investments L.L.C., appeal a judgment of the Court of Common

Pleas of Stark County, Ohio. Plaintiffs-appellees, the city of Alliance; William T. Hawley,

the city zoning inspector; William Robinson Jr., the city housing inspector; Randall M.

Flint, the city health commissioner; and Guy Aumend, the city fire inspector, have filed a

cross-appeal from the same judgment.          Appellants-cross-appellees assign a single

error:

         {¶2}   “I. The trial court erred in reaching the decision that the appellants must

pay eighty percent of the demolition costs of 544 East Main Street and the appellees

must pay twenty percent of the demolition costs, because the cost splitting is not

supported by the law and is an arbitrary determination by the court.”

         {¶3}   Appellees-cross-appellants also assign a single error:

         {¶4}   “I. The trial court erred in reaching the decision that the appellees must

pay any demolition costs because cost splitting is not valid.”

         {¶5}   Both assigned errors raise the same issue: whether the court erred in

splitting the cost of demolition between the parties as it did. For the reasons that follow,

we find that the court did not abuse its discretion.
Stark County, Case No. 2010-CA-00324                                                        4


       {¶6}   The record indicates that appellants acquired title to a parcel of real estate

at 544 East Main Street on or about January 23, 2009. On the property was a building

known as the “dry-cleaner” property. Prior to 1979, there was a building on the parcel

abutting the dry-cleaner property to the east (the “parking lot”). This building shared a

common wall with the dry-cleaner building. However, in 1979, the adjacent building was

demolished, leaving the common wall standing. The common wall was then attached

only to the dry-cleaner building, but was actually situated on the parking-lot property, not

on the dry-cleaner lot.

       {¶7}   Appellees’ predecessor-in-interest installed blue-ribbed metal siding on

the common wall, presumably to strengthen it and protect it from damage. In 1994, the

city of Alliance acquired the lot and converted it to a parking lot. The common wall has

deteriorated, and both parties agree that the dry-cleaner property has become a hazard

and must be repaired or demolished because it poses an imminent risk.

       {¶8}   Appellants argue that when the dry-cleaner building was first erected, it

was built between buildings on either side and shared a side wall with each. Appellants

argue that their dry-cleaner building was dependent upon the pre-existing buildings east

and west of it for its structural integrity, and demolition of the building on the parking lot

impaired the structural integrity of the dry-cleaner building and created the hazard.

       {¶9}   Appellant Baker testified that a surveyor surveyed his property and found

that the wall in question was not on his property. Baker testified thathe believed it was

against the law for him to repair the wall because it did not belong to him.

       {¶10} Appellees’ cross-appeal argues that when the city acquired the parking lot,

it was already vacant, and the city never had any common-law obligation to maintain the
Stark County, Case No. 2010-CA-00324                                                  5


common wall. Appellees urge that because appellants knew of the problem with the

east wall prior to purchasing the dry-cleaner property in 2009, they had assumed any

loss caused by what proved to be a poor business decision.

       {¶11} The trial court correctly found that each party to a common wall owes a

duty to the other party to maintain the common wall and not take any action to damage

the integrity of the other party’s portion of the common wall.

       {¶12} In Halflinger v. Tuscarawas Cty. Convention & Visitors Bur., 180 Ohio

App.3d 420, 2009-Ohio-101, 905 N.E.2d 720, this court reviewed a situation in which as

part of remodeling and renovating, a business removed the upper floors of its building,

which shared a wall with the adjacent building. While the business did not remove any

part of the common wall, when its project was completed, there were exposed pockets

where the floor joists of the second and third floors had connected to the common wall.

The common wall had formerly been under a roof, but the upper portion was now

exposed to the elements. We cited Zaras v. Findlay (1960), 112 Ohio App. 367, 176

N.E.2d 451, which held that the owner of a building with a common wall, with suitable

notice and using due and proper care to prevent injury to the other property, may

remove his portion of the wall or make changes in his own building. Id. at 368. In

Haflinger, we held that reasonable minds could differ on the questions of advance

notice and whether the property owner had used due and proper care to prevent injury

to its neighbor. Id. at ¶ 9.

       {¶13} The trial court held, “Rather than engaging in an exercise of attempting to

ascertain how many pieces of rubble fall on the property to the east of 544 East Main

Street, versus the rubble to be removed from 544 East Main Street, the court finds
Stark County, Case No. 2010-CA-00324                                                       6


eighty percent (80%) of the demolition costs should be borne by the owner of the

property at 544 East Main Street and twenty percent (20%) of the demolition cost by the

owner of the property to the east of 544 East Main Street.”

       {¶14} A suit to abate a nuisance sounds in equity. State ex rel. Spies v. Lent,

Tuscarawas App. No. 2008AP050033, 2009-Ohio-3844, at ¶ 99, citing R.C. 3767.03. It

is clear to this court that the trial court invoked its equitable authority to determine that

neither property owner should bear the full cost of the demolition. Appellants own a

higher portion of the building to be demolished, and the court calculated their equitable

share as 80 percent.

       {¶15} We review a trial court's exercise of its equitable authority using the

abuse-of-discretion standard. Sandusky Properties v. Aveni (1984), 15 Ohio St.3d 273,

274-275, 473 N.E.2d 798. A court's judgment will not be reversed on appeal unless it

was arbitrary, unreasonable, or unconscionable. Id.

       {¶16} We find that the trial court did not abuse its discretion in determining that

appellants should be responsible for 80 percent of the cost of demolition of the entire

building, including the wall, and appellees should pay the remaining 20 percent.

        {¶17} The assignment of error is overruled; the cross-assignment of error is

overruled.

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

Stark County, Ohio, is affirmed.



                                                                        Judgment affirmed.

Wise and Edwards, JJ., concur.
[Cite as Alliance v. Baker, 195 Ohio App.3d 186, 2011-Ohio-3810]
