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




             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, Cheryl L. Waite, Carol Ann Robb, Judges.


                                               JUDGMENT:
                                                 Affirmed.


 Atty. David Comstock, Jr., Bonezzi Switzer Polito & Hupp Co., LPA, 4137 Boardman-
 Canfield Road, Suite 101, Canfield, Ohio 44406, and Atty. Mark R. Fortunado, 3296
 Stones Throw Avenue, Poland, Ohio 44514, for Plaintiffs-Appellees and

 Frank Kalan, Pro Se, 20-1 Montgomery Drive, Canfield, Ohio 44406, Defendant-
 Appellant.
                                                                                        –2–


                                        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 magistrate’s decision
determining that his property is a nuisance and ordering that it be demolished. On appeal,
Appellant asserts the trial court abused its discretion in adopting the magistrate’s
decision. Appellant alleges he was denied “meaningful access to 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 District and City of Canfield,
conducted several inspections beginning in April 2013. Photographs were taken and
numerous deficiencies and ordinance violations were noted.             Following a second
inspection in March 2016, Appellant was convicted in Canfield Mayor’s Court with
violating multiple ordinances related to the unsafe nature of his property.
         {¶3}    On October 17, 2016, Appellees filed a complaint against Appellant to
authorize the demolition of his property. The complaint alleges 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 violations of City of Canfield
Ordinances 1387.030, 1387.070, 1387.080, 1387.100, 1387.110, 1387.130, 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 the property to be brought



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


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

       8. During the [July 2017] inspection, the following deficiencies were noted:

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

       b. There were holes in the attic ceiling and scuttle covers were closed.
       There was water damage on every story of the home, including the 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 entryway. This
       poses a significant hazard to anyone entering the building, including guests
       or firefighters.

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

       f. An extreme amount of miscellaneous household furnishings, trash, 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 event of an
       emergency. Likewise, it would not permit the rescue of any individuals within
       the dwelling from the exterior by first responders.




Case No. 19 MA 0051
                                                                                        –4–


      g. Miscellaneous waste and oily rags were found loose within the home;
      they were not maintained in metal containers to prevent spontaneous
      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 to re-establish
      power to the dwelling. The electrical system must be updated and made
      compliant with current code.

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

      10. * * * [N]ot only has [Appellant] failed to comply with prior orders but the
      conditions of the house have continued to deteriorate. In Affiant’s opinion,
      the home is in the worst condition it has been since the initiation 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 correction 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 construction personnel
      be permitted to enter the premises. Furthermore, this Court should require
      that the property * * * remain uninhabited until all improvements are made *
      **

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


Case No. 19 MA 0051
                                                                                          –5–


       the demolition of the structure. Affiant would ask that this Court order the
       demolition of the structure if the repairs are not substantially * * * completed
       within 60 days.

(9/26/2017 Affidavit of Fire Chief Hutchison)

       {¶6}   Attached to Fire Chief Hutchison’s affidavit are photographs indicating 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 judgment.
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 inspected on
multiple occasions, beginning in 2013, and has a number of defects. (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 corrected. Fire Chief
Hutchison noted several areas of the property that need to be repaired, made safe, and
brought into code compliance, including the roof, electrical system, and flooring. He
further noted other problem areas of the property, including accumulations 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 regarding 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 ordinance 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 2017. (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 testified about his plans to



Case No. 19 MA 0051
                                                                                                   –6–


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 objections were filed. On
August 23, 2018, the trial court adopted the magistrate’s decision.
          {¶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 accumulation of trash throughout
the house was worse; the amount of trash impeded ingress and egress; the windows
remained open; and the utilities remained disconnected. Zoning Inspector Cook testified
that the property was in far worse condition after the re-inspection. Photographs showing
the condition of the property were admitted into evidence without objection. (Plaintiffs’
Exhibit 26 A-M). Appellees’ inspection report revealing the violations was also admitted
without objection. (Plaintiffs’ Exhibit 27).
          {¶15} Appellant did not attend the re-inspection. Appellant testified he intended
to make repairs on his own in July 2018 but was unable to because 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 not have the full amount of
funds to hire a contractor. Although he had $3,000 available to buy roofing shingles,
Appellant testified he did not purchase any. Appellant admitted that he failed to perform
any work on his property.
          {¶16} On January 2, 2019, the magistrate filed a decision again finding 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 mandates 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.


Case No. 19 MA 0051
                                                                                    –7–


                           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 assignments 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 unreasonable 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 depleted all of his
funds and then “bolted” from the proceedings. (11/27/2019 Appellant’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 means to make the necessary


Case No. 19 MA 0051
                                                                                       –8–


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, however, that he had no
documentation from a physician regarding his claimed medical condition. Appellant also
admitted that he failed to perform any work on his property. Appellant presented no
evidence that he bought 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 court took
Appellant’s prior situation into account and addressed his issues. The court considered
Appellant’s prior guardianship, his monetary and personal injury 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 his property is
a nuisance and issuing an order of demolition, thereby violating his due process rights.

      [T]he due-process rights provided by the Fourteenth Amendment and 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 process 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 not provided with
      adequate egress, or which constitute a fire hazard, or are otherwise
      dangerous to human life or which in relation to existing use constitute a



Case No. 19 MA 0051
                                                                                          –9–


       hazard to health by reason of inadequate maintenance, dilapidation, or
       obsolescence, are, for purposes of this chapter, “unsafe buildings.” All such
       unsafe buildings are declared to be public nuisances and shall be abated
       by repair and rehabilitation or by demolition in accordance with the
       procedure of this chapter.

       {¶26} Ordinance 1313.02 states in part:

       The Fire Chief shall examine or cause to be examined every building or
       structure or portion thereof reported as or believed to be an unsafe 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 shall
       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 clean, safe and
       sanitary condition, subject to the approval of the Fire Chief[.]

       {¶27} Ordinance 1313.03 provides in part: “Proper service of such notices 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 contract shall fail,
       neglect or refuse to comply with the notice to repair, rehabilitate 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 and removed
       from the premises, leaving the premises in a clean, safe and sanitary
       condition * * *[.]

       {¶29} The record before us, including the inspection reports and testimony 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


Case No. 19 MA 0051
                                                                                        – 10 –


a fire hazard,” “dangerous,” and “hazard to health.” See Ordinance 1313.01. The record
shows that Appellees complied with all of the notice requirements, 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 opportunity to be
involved in the litigation due to the filing of Appellees’ complaint in 2016, and amended
complaint in 2017. Appellant was represented by counsel and participated 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 that his due
process rights were violated as he was given notice and an opportunity 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 merit.

                                       CONCLUSION

       {¶33} For the foregoing reasons, Appellant’s assignments of error are not well-
taken. The judgment of the Mahoning County Court of Common Pleas 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.




Case No. 19 MA 0051
[Cite as Cardinal Joint Fire Dist. v. Kalan, 2020-Ohio-3609.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court 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 constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                         NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
