Peter K. Ormond v. City of Solon
| Decision Date | 18 October 2001 |
| Docket Number | 79223,01-LW-4035 |
| Parties | PETER K. ORMOND, Plaintiff-Appellant v. CITY OF SOLON, ET AL., Defendants-Appellees |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court Case No. 403477
For plaintiff-appellant: Jeffrey S. Dunlap, Esq., Bill Gagliano Esq., Ronald H. Isroff, Esq., ULMER & BERNE, 1300 East Ninth Street, 900 Bond Court Building, Cleveland, Ohio 44114-1583
For defendant-appellee, City of Solon: David J. Matty, Esq. Robert C. McClelland, Esq., RADEMAKER, MATTY, McCLELLAND & GREVE, 55 Public Square, Suite 1775, Cleveland, Ohio 44113
For defendant-appellee, Cameratta Properties,et al.: Anthony J. Coyne, Esq., Eli Manos, Esq., Bruce G. Rinker, Esq., MANSOUR, GAVIN, GERLACK & MANOS, 2150 Illuminating Building, 55 Public Square, Cleveland, Ohio 44113-1994
Plaintiff-appellant herein, Peter K. Ormond, appeals from the trial court's denial of his motion for preliminary injunction as well as its grant of summary judgment in favor of defendant- appellee City of Solon (the City ), Camaretta Properties and DiSanto Enterprises, Inc. (the developers ) on appellant's administrative appeal of a grant of certain zoning variances. The administrative appeal was filed with the trial court on February 10, 2000. The motion for temporary restraining order and preliminary injunction was filed on June 28, 2000.
Because we find that the preliminary injunction motion was not timely filed and that the appellant failed to present any evidence in support of his motion which would have entitled him to the relief that he was seeking and because we further find that the administrative appeal was moot at the time that the trial court made its ruling, we affirm the judgment of the trial court.
This appeal arises from two different cases which were eventually consolidated at the trial court level. Both cases are related to a dispute between the appellant, a resident and property owner in the city, and the city concerning the development of a residential subdivision within the city limits. The appellant has asserted that the city, in contravention of the city charter, approved whole scale zoning variances on behalf of the developers of the Sycamore Estates subdivision, which effectively constituted a change in zoning classification, and as such should have been subject to voter approval. The city maintains that the zoning classification was altered as the result of a consent judgment entry which was entered into between the city and another developer who was the predecessor in interest to the current developers of the Sycamore Estates subdivision. The city further asserts that the administrative appeal filed by the appellant was made moot when the city issued new variances for the project which effectively rescinded and replaced the earlier variances which were challenged by the appellant.
By the agreement of the parties, the trial court did not take evidence before making its ruling in the consolidated case, but, rather, based its decision on the existing record, as well as the briefs of the parties. On September 12, 2000, the trial court's decision was journalized. The trial court found that the claim for injunctive relief was time-barred because it was not made until nearly four months after construction on the project had already commenced and would have caused far more harm to the developers than potential benefit to the appellant. In a separate order, which was also journalized on September 12, 2000, the trial court denied the appellant's administrative appeal and affirmed the decision of the city's Board of Zoning Appeals.
The appellant timely filed the within appeal from the decision of the trial court and herein presents three assignments of error for this court's review. The first assignment of error states:
I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR A PRELIMINARY INJUNCTION.
As was stated earlier in this opinion, the trial court expressly found that the appellant waited too long after the subject variances were issued and the construction on the project had started to seek a temporary restraining order and/or preliminary injunction to enjoin the construction efforts at the Sycamore Estates. Our review of the record compels us to reach the same conclusion.
In seeking an injunction, the grant or denial of an injunction is solely within the discretion of the trial court. That decision will not be disturbed upon appeal absent a clear showing of an abuse of discretion. Buck Consultants, Inc. v. Smith (Dec. 7, 2000), Cuyahoga App. Nos. 77845 & 78002, unreported; Garono v. State (1988), 37 Ohio St.3d 171, 173, 524 N.E.2d 496. A preliminary injunction is an extraordinary remedy and, as such, the appellant has a substantial burden to meet in order to be entitled to a preliminary injunction. In ruling on a motion for a preliminary injunction, the court must consider whether: (1) the movant has shown a strong or substantial likelihood or probability of success on the merits; (2) the movant has shown irreparable injury; (3) the preliminary injunction could harm third parties; and (4) the public interest would be served by issuing the preliminary injunction. Gobel v. Laing (1967), 12 Ohio App.2d 93, 231 N.E.2d 341; Frisch's Restaurant, Inc. v. Shoney's, Inc. (1985), 759 F.2d 1261, 1263. See, also, Goodall v. Crofton (1877), 33 Ohio St. 271.
The term "abuse of discretion" implies that the court's ruling was "unreasonable, arbitrary, or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144, 149. Therefore, to find an abuse of discretion we must find that the trial court committed more than an error of judgment. When applying the abuse of discretion standard, a reviewing court is not free merely to substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 566 N.E.2d 1181, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 559 N.E.2d 1301.
There is no compelling evidence in the record that the trial court abused its discretion in denying the appellant's motion for injunctive relief.
The doctrine of laches may prevent injunctive relief where a party has delayed the commencement of an action. U.S. v. American Electric Power Service Corp. (S.D. Ohio 2001), 137 F.Supp.2d 1060, 1067-68. See, also, Holmberg v. Armbrecht (1946), 327 U.S. 392, 396, 90 L.Ed. 743, 66 S.Ct. 582.
Under Ohio law, a party invoking laches, to be successful, must show that the person for whose benefit the doctrine will operate has been materially prejudiced by the delay of the person asserting the claim. State ex rel. Caspar v. Dayton (1990), 53 Ohio St.3d 16, 20, 558 N.E.2d 49; Freed v. Farag (1997), 994 F.Supp. 887, 891.
In AK Steel Corp. v. Chamberlin (1997), 974 F.Supp 1120, 1126, the court provided the following overview of the doctrine of laches:
Finally, the Court notes that the doctrine of laches would militate against granting an injunction here. Laches is an equitable defense which bars injunctive relief where a plaintiff unreasonably delays in commencing an action. Tri-Star Pictures, Inc. v. Leisure Time Productions, B.V. (2d. Cir. 1994), 17 F.3d 38, 44; Minnesota Public Interest Research Group v. Butz (D. Minn. 1973), 358 F. Supp. 584, 619. "The defense of laches 'requires proof of (1)lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.'" Kansas v. Colorado, 514 U.S. 675, 687, 131 L. Ed. 2d 759 at 774, 115 S. Ct. 1733 (1995) (citation omitted); see also Black's Law Dictionary 875 (6th ed. 1990) (...
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