City of Grove City, Ohio v. Ronald J. Clark, 02-LW-3727

• Decision Date: 05 September 2002
• Docket Number: 02-LW-3727,01AP-1369
• Citation: 2002 Ohio 4549
• Parties: City of Grove City, Ohio, Plaintiff-Appellee, v. Ronald J. Clark et al., Defendants-Appellants.
• Court: Ohio Court of Appeals

2002-Ohio-4549

City of Grove City, Ohio Plaintiff-Appellee, v. Ronald J. Clark et al Defendants-Appellants.

No. 01AP-1369

02-LW-3727 (10th)

Court of Appeals of Ohio, Tenth District Franklin

September 5, 2002

Shuler Plank & Brahm, and Franklin E. Eck, Jr., for appellee.

Ronald J. Clark and Anita L. Clark, pro se.

APPEAL from the Franklin County Municipal Court, Environmental Division.

BRYANT J.

{¶1} Defendants-appellants Ronald J. and Anita L. Clark appeal from a judgment of the Franklin County Municipal Court, Environmental Division, granting injunctive relief to plaintiff-appellee, City of Grove City, Ohio ("Grove City"). Because the appeal is moot, we dismiss defendants' appeal.

{¶2} According to evidence in the record, defendants own property in Grove City, Ohio. Although conflicting, the evidence indicates that in October 2001 defendants submitted an application for either a driveway or a parking pad on the rear of their property. During an inspection of the site, a city building inspector discovered remodeling work, including a new roof and new windows, had commenced on a residential structure located on the property, even though defendants had failed to obtain the required permits. Moreover, exposed walls and replacement walls revealed new electrical wiring had been installed, and the presence of a bathtub/shower temporarily stored in the living room suggested plumbing work was being performed. Subsequently, a city building inspector telephoned Anita Clark to inform her that permits were required for work being performed on the residential structure.

{¶3} On October 19, 2001, Grove City issued a stop work order. Later that same day, Ronald Clark obtained and filled out permit applications for the roof and windows. Notwithstanding the stop work order, defendants continued to remodel the residential structure.

{¶4} Grove City filed a complaint on October 24, 2001, seeking a temporary restraining order and injunctive relief. The same day, after holding a hearing, the trial court issued a temporary restraining order and scheduled a hearing to consider Grove City's application for a preliminary injunction. After the temporary restraining order was issued, defendants discontinued remodeling work on the residential structure.

{¶5} On November 5, 2001, the trial court held a hearing to consider Grove City's application for preliminary injunctive relief. At the hearing, Grove City informed the trial court that defendants had never applied for plumbing and electrical permits. Although defendants had submitted applications for roof and window permits, Grove City had not processed them because they were incomplete.

{¶6} Ronald Clark disputed Grove City's representations, and claimed Grove City never informed him prior to the preliminary injunction hearing that the roof and window permit applications were incomplete, despite his many inquiries about the status of his permit applications. Additionally, Ronald Clark denied he performed any electrical or plumbing work on the residential structure. He, however, admitted to performing remodeling work on the structure following receipt of the stop work order, mistakenly believing he was permitted to continue working on the structure during the pendency of his permit applications. At the hearing, the trial court encouraged the parties to settle the matter, but the parties' efforts at settlement were unsuccessful.

{¶7} On November 7, 2001, the trial court found defendants' property to be a public nuisance and ordered defendants (1) to prove by December 4, 2001 they had abated the nuisance by obtaining required roofing, window, electrical and plumbing permits, and (2) to pay court costs. According to the court's order, defendants' failure to comply with the trial court's order would result in a daily fine. Moreover, under the trial court's judgment, Grove City was permitted to reduce any accumulated fines to a judgment and execute on the judgment against defendants' assets. On December 4, 2001, the trial court issued an entry and order indicating defendants had complied with the trial court's November 7, 2001 judgment.

{¶8} Defendants appeal, assigning a single error:

{¶9} "Environmental Division of the Franklin County Court erred by finding that Ronald and Anita Clark, owner of 3981 Irwin Court, was in code violation. Requiring us to obtain roof, window, plumbing, and electric permits [sic]."

{¶10} As clarified at oral argument, defendants contend the trial court erred in requiring them to obtain a permit for electrical work that defendants did not perform. Additionally, in light of Grove City's representations that permits are typically approved within one day, defendants contend Grove City's lack of timely response to defendants' roof and window permit applications contributed to the circumstances that occasioned Grove City's lawsuit against them. Thus, in essence, defendants contend the trial court's judgment not only is against the manifest weight of the evidence, but Grove City should have been estopped from bringing the lawsuit. Grove City contends the trial court's judgment is not against the manifest weight of the evidence, and defendants' compliance with the trial court's judgment renders the present appeal moot.

{¶11} "Actions or opinions are described as 'moot' when they are or have become fictitious, colorable, hypothetical, academic or dead. The distinguishing characteristic of such issues is that they involve no actual genuine, live controversy, the decision of which can definitely affect existing legal relations. * * * 'A moot case is one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason cannot have any practical legal effect upon a then-existing controversy.' " Culver v. City of Warren (1948), 84 Ohio App. 373, 393. (Citations omitted.)

{¶12} "The doctrine of mootness is rooted both in the 'case' or 'controversy' language of Section 2, Article III of the United States Constitution and in the general notion of judicial restraint. * * * While Ohio has no constitutional counterpart to Section2, Article III, the courts of Ohio have long recognized that a court cannot entertain jurisdiction over a moot question. It is not the duty of a court to decide purely academic or abstract questions." James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App.3d 788, 791. (Citations omitted.) "Thus, the ' "duty of * * * every * * * judicial tribunal *** is to decide actual controversies by a * * * judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." ' " Ohio Civ. Serv. Emp. Assn., AFSCME, Local 11, AFL-CIO v. Ohio Dept. of Transp. (1995), 104 Ohio App.3d 340, 343, quoting Miner v. Witt (1910), 82 Ohio St. 237, 238, quoting Mills v. Green (1895), 159 U.S. 651, 653, 16 S.Ct. 132.

{¶13} As exceptions to the mootness doctrine, a court may hear an appeal where the issues are "capable of repetition, yet evading review," State ex rel. Plain Dealer Publishing Co. v. Barnes (1988), 38 Ohio St.3d 165, paragraph one of the syllabus, where a debatable constitutional issue remains to be resolved, or where the matter is of great public or general interest. Franchise Developers, Inc. v. Cincinnati (1987), 30 Ohio St.3d 28, 29, paragraph one of the syllabus. See, also, Deluca v. Aurora (2001), 144 Ohio App.3d 501, 508. The exception for a case that is "capable of repetition, yet evading review" applies only in exceptional circumstances and two factors must be present: "(1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." State ex rel. Calvary v. Upper Arlington (2000), 89 Ohio St.3d 229, 231.

{¶14} Here, Grove City contends defendants' appeal is moot because defendants voluntarily complied with the judgment from which they appeal. "Where the court rendering judgment has jurisdiction of the subject-matter of the action and of the parties, fraud has not intervened, and the judgment is voluntarily paid and satisfied, payment puts an end to the controversy and takes away from the defendant the right to appeal or prosecute error or even to move for a vacation of judgment." Bob Krihwan Pontiac-GMC Truck, Inc. v. Gen. Motors Corp. (2001), 145 Ohio App.3d 671, 675, quoting Lynch v. Lakewood City School Dist. Bd. of Edn. (1927), 116 Ohio St. 361, paragraph three of the syllabus. (Emphasis sic.) Accord Kelm v. Hess (1983), 8 Ohio App.3d 448. See, also, Favret Co. v. West (1970), 21 Ohio App.2d 38, 40 ("If * * * payment was voluntarily made, the issue raised by the appeal is moot and the appeal must of necessity be dismissed. However, if the payment was an involuntary one, then the question raised is not moot"). See, also, Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, 245, quoting Rauch at 316, quoting Lynch at 361, paragraph three of the syllabus.

{¶15} Here, rather than a monetary judgment against defendants, the trial court ordered injunctive relief by requiring defendants to obtain permits, thereby abating a nuisance, and ordering fines for noncompliance with the order. Although defendants risked financial sanction for noncompliance with the trial court's order, the threat of sanctions did not render defendants' satisfaction of the judgment involuntary. See Hagood v. Gail (1995), 105 Ohio App.3d 780, 790, appeal not allowed (1996), 74 Ohio...