Annexation of Territory of Riveredge Tp. to City of Fairview Park, In re

Decision Date01 February 1988
Docket Number52722,Nos. 52721,s. 52721
Citation46 Ohio App.3d 29,545 N.E.2d 1287
PartiesIn re Annexation of the TERRITORY OF RIVEREDGE TOWNSHIP TO THE CITY OF FAIRVIEW PARK. * CITY OF CLEVELAND, Appellant, v. CITY OF FAIRVIEW PARK, Appellee.*
CourtOhio Court of Appeals

Syllabus by the Court

1. A stay granted pursuant to App.R. 7 in an appeal from a ruling by a trial court affirming the board of county commissioners' decision to allow annexation (R.C. 709.033) prevents the municipality to which annexation is proposed from thereafter accepting the annexation pursuant to R.C. 709.04.

2. No appeal may be taken from a voluntary or stipulated dismissal.

3. Each tenant in a tenancy-in-common interest in fee simple of a parcel of real estate is entitled to sign an R.C. 709.02 petition for annexation in his own right.

4. An application for annexation filed with the board of county commissioners is valid under R.C. 709.02 so long as a majority of feeholders within the territory to be annexed have signed that petition, regardless of whether any of its signers owned property bordering the municipality to which annexation is proposed.

5. A party opposing the contents of an affidavit presented in an R.C. 709.031-709.032 annexation hearing before the board of county commissioners has no right to cross-examine the affiant until that party (the appellant) brings an R.C. Chapter 2506 appeal. (R.C. 2506.03[A][c] [formerly (B)(3) ], applied.)

Marilyn G. Zack, Director of Law, and Donald F. Black, Cleveland, for appellant city of Cleveland.

Baker & Hostetler, Gary L. Bryenton, Paul P. Eyre and Thomas R. Luchesi, Cleveland, for appellee landowners of Riveredge Tp.

Savage, Zito, O'Malley & Gill and Thomas O'Malley, Cleveland, for appellee City of Fairview Park.

DYKE, Judge.

On November 19, 1984, a petition for the annexation of Riveredge Township was filed with the Board of County Commissioners of Cuyahoga County. This petition was filed by a majority of the landowners in the township, and requested that the township be annexed to the city of Fairview Park.

On February 4, 1985, a hearing was held by the board of county commissioners, and on April 26, 1985, the petition was approved by the board. On May 3, 1985, the appellant, the city of Cleveland, filed a notice of appeal of the board's decision in common pleas court (our case No. 52721). In addition, on June 5, 1985, the appellant filed an action in the same court for a permanent injunction pursuant to R.C. 709.07 (our case No. 52722). In this action, the appellant prayed that the city of Fairview Park be enjoined from taking any action to accept the annexation of Riveredge Township.

On July 9, 1985, the parties in the injunction action stipulated that that case would be dismissed without prejudice on the date a decision was reached in the appeal from the decision of the board of county commissioners.

On August 16, 1985, both cases were consolidated. On September 30, 1986, the trial court affirmed the board's annexation order, and dismissed the injunction action pursuant to the parties' stipulation.

On the same date, the appellant filed notices of appeal in this court as to both cases. Pursuant to a motion of the appellant, on September 30, 1986, this court issued a stay of the trial court's judgment. On October 6, 1986, the city of Fairview Park passed an ordinance which accepted the annexation. Appellee landowners of Riveredge Township have now moved to dismiss both of appellant's appeals.

Appellee landowners first argue that the appeal from the board of commissioner's decision should be dismissed as being moot because Fairview Park has accepted annexation. See State, ex rel. Bd. of Trustees, v. Davis (1982), 2 Ohio St.3d 108, 111, 2 OBR 658, 660, 443 N.E.2d 166, 168 (absent an injunction or order staying further action, the adoption by the city counsel of an ordinance accepting annexation renders moot a case seeking to enjoin annexation). Appellee Fairview Park claims that since it was not a party to the appeal from the decision of the board of county commissioners, it was not bound by the stay issued in that case; and, thus, it properly accepted annexation.

Appellees' arguments are untenable. The breadth of our stay is much greater than the appellees would have it. It is our opinion that a stay issued by this court suspends the force and effect of both the trial court's judgment and any underlying previous order issued in the same case by an inferior tribunal. Holding otherwise would make the issuance of a stay granted in a case such as this meaningless.

Our holding is buttressed by statements made by the Supreme Court in State, ex rel. Bd. of Trustees, v. Davis, supra. In that case, the party aggrieved by the county council's order denying annexation appealed that order to the court of common pleas. After that court reversed the county council's order denying annexation, the party opposing annexation appealed to the court of appeals. The appellant never requested a Civ.R. 62(B) stay pending appeal; a motion for an App.R. 7 stay was denied. Prior to the time the appeal was heard, the annexing municipality accepted the annexation, thus causing the appeal to be moot. In denying a writ of mandamus to the appellant, the Ohio Supreme Court noted that the appellant had several remedies which would have prevented the annexing city from accepting the annexation. Specifically, the court stated:

" * * * Without question, R.C. 2506.04 provides an avenue of appeal by which * * * [appellant] could have obtained appellate review of the judgment of the court of common pleas, prior to this action having become moot.

"We wish to emphasize that subsequent to the final order of the court of common pleas on April 21, 1982, until city council's enactment of the annexation ordinance on June 28, 1982, * * * [appellant] possessed several options. First, under Civ.R. 62(B), a stay was available upon request from the court of common pleas which would have prevented this cause from becoming moot. Second, a timely stay under the provisions of App.R. 7 could have been sought from the court of appeals. * * * " (Footnote omitted and emphasis added.) Id. at 111, 2 OBR at 660-661, 443 N.E.2d at 168-169.

Here, the court recognized that a stay granted under App.R. 7 in an appeal from an order granting annexation would prevent the municipality from accepting the annexation.

Pursuant to the above, we conclude that this court's order of September 30, 1986 stayed the force and effect of both the trial court's judgment and the board of commissioners' order. Hence, the order of the board was not in effect when the city of Fairview Park passed its ordinance accepting annexation on October 6, 1986. Since this order was not in effect, the application for annexation was not properly placed before the Fairview Park City Council under R.C. 709.04. Therefore, that city's attempt to accept the annexation in violation of our stay is void. Appellee landowner's motion to dismiss case No. 52721 is overruled.

Appellee landowners also argue that the appeal of the judgment in the injunction action should be dismissed because the appellant voluntarily stipulated to its dismissal below. " * * * [W]here both parties have agreed, with the court's approval, to enter into stipulations for the record, and no objections to taking this action were made, this court will not consider appellant's objection on appeal." Patterson v. Patterson (July 22, 1982), Cuyahoga App. No. 43707, unreported, at 6, 1982 WL 2494. Further, it is well-established in Ohio that a party may not appeal a judgment to which he has agreed. Jackson v. Jackson (1865), 16 Ohio St. 163. Finally, it is the general rule that no appeal may be taken of a voluntary dismissal. Vic Tanny Internatl. of Cleveland, Inc. v. Carrabine (Apr. 23, 1981), Cuyahoga App. No. 42220, unreported.

Pursuant to the above, since the appellant stipulated to the dismissal of its injunction action, it may not now appeal that decision. Therefore, the motion to dismiss this case is well-taken and is granted. Case No. 52722 is hereby dismissed.

In regard to the merits of case No. 52721, the appellant assigns five errors to the trial court. The appellant's first assignment of error is:

"The trial court erred in finding that the Carneys, as tenants-in-common, have three annexation votes by reason of their undivided one-third interests in a single parcel."

In order for the board of county commissioners to approve a petition for annexation, a majority of landowners within the territory to be annexed must sign the petition for annexation. At the time the petition for annexation was presented to the county commissioners in this case, one of the parcels of property in the township was owned by Jeanette Carney, Virginia Carney, and Estelle Gorsuch as tenants in common. Each of these individuals signed the petition for annexation. As a result of this, the petition was signed by a majority of landowners in the township by a margin of five to three. The appellant argues under this assignment of error that since these individuals only owned one piece of township property amongst them, their three signatures should only have been counted as the signature of one landowner for purposes of the annexation petition. The appellant further argues that if the signatures of the above persons had been counted as that of only one landowner, then the petition for annexation would have been deficient because it would have been signed by only three of the six landowners in the township.

R.C. 709.02 provides in part:

"The owners of real estate adjacent to a municipal corporation may, at their option, cause such territory to be annexed thereto * * *.

" * * *

"As used in sections 709.02 to 709.21 and 709.38 and 709.39 of the Revised Code, 'owner' or 'owners' means any adult individual seized of a freehold estate in land who is legally competent * * *."

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