Haueisen v. Worthington , 2019 Ohio 5085 ( 2019 )


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  • [Cite as Haueisen v. Worthington, 
    2019-Ohio-5085
    .]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    Steffanie and John Haueisen,                         :
    Appellants-Appellants,               :
    v.                                                   :       No. 19AP-253
    (C.P.C. No. 18CV-479)
    City of Worthington, Ohio et al.,                    :
    (REGULAR CALENDAR)
    Appellees-Appellees,                 :
    [Robert and Deborah Tucker,                          :
    Intervenors].                        :
    D E C I S I O N
    Rendered on December 10, 2019
    On brief: Sandra J. Dickinson, for appellants. Argued:
    Sandra J. Dickinson.
    On brief: BakerHostetler, and Robert J. Tucker, for
    appellees. Argued: Robert J. Tucker.
    On brief: Plank Law Firm, LPA, David Watkins, for
    intervenors. Argued: David Watkins.
    APPEAL from the Franklin County Court of Common Pleas
    DORRIAN, J.
    {¶ 1} Appellants Steffanie and John Haueisen (collectively, "the Haueisens")
    appeal from a judgment of the Franklin County Court of Common Pleas dismissing as moot
    their appeal from a decision of appellee Board of Zoning Appeals for the city of Worthington
    ("BZA") related to property owned by intervenors-appellees Robert and Deborah Tucker
    (collectively, "the Tuckers"). For the following reasons, we deny the Tuckers' motion to
    No. 19AP-253                                                                              2
    dismiss the Haueisens' appeal to this court as moot, grant the Tuckers' motion to strike the
    Haueisens' supplemental reply brief, and affirm the judgment of the common pleas court.
    I. Facts and Procedural History
    {¶ 2} The dispute giving rise to this appeal involves construction of a single-family
    residence at 595 Fox Lane, Worthington, Ohio ("the Property") and the proximity of that
    residence to the neighboring parcel to the south.
    {¶ 3} The Tuckers purchased the Property in February 2017. In July 2017, a
    building permit was issued for construction of a single-family residence on the Property.
    On September 7, 2017, the BZA granted variances for three window wells encroaching into
    the north side yard of the Property and an attached garage exceeding the square footage
    permitted under the Worthington zoning ordinance. That same date, the BZA found that
    the Property was an "existing lot of record" under the Worthington zoning ordinance, with
    a minimum side yard requirement of six feet.
    {¶ 4} The Haueisens own 587 Fox Lane, which borders the Property to the south.
    On September 28, 2017, Steffanie Haueisen contacted the Worthington Chief Building
    Inspector ("Inspector") to assert the Property was not an existing lot of record and that an
    eight-foot side yard was required. She claimed the foundation for the residence was being
    constructed 70 inches (or five feet and ten inches) from the southern boundary of the
    Property. On October 2, 2017, the Inspector issued a decision that the Property was an
    "existing lot of record" when the Worthington zoning ordinance was adopted in 1971 and,
    therefore, was subject to a six-foot side yard requirement. The Inspector further decided
    the construction on the Property was in substantial compliance with this requirement
    because the foundation wall was being constructed 76.8 inches (or six feet and almost five
    inches) from the southern boundary of the Property.          The Haueisens appealed the
    Inspector's decision to the BZA, asserting the Property was not an existing lot of record
    when the zoning ordinance was adopted because it was held in common ownership with
    two other parcels; therefore, the Haueisens argued, the Property was subject to an eight-
    foot side yard requirement.
    {¶ 5} Based on the information contained in the Haueisens' appeal to the BZA, the
    Inspector revoked the building permit. The Tuckers then appealed the revocation of the
    building permit to the BZA. Both appeals were scheduled to be heard at the BZA's regular
    meeting on December 7, 2017. The BZA considered the Haueisens' appeal first, taking
    No. 19AP-253                                                                              3
    statements from the Haueisens, their attorney, the Tuckers' attorney, the Worthington Law
    Director, and neighboring property owners. The BZA voted to deny the Haueisens' appeal
    and affirm the Inspector's decision that the Property was an existing lot of record with a
    six-foot side yard requirement. The Inspector then wrote the Tuckers a letter informing
    them of the BZA's denial of the Haueisens' appeal and that he "hereby restore[d] Permit
    23526 to construct a single-family dwelling" at 595 Fox Lane. (Feb. 18, 2019 Reply in
    Support, Ex. 2.) The Tuckers then withdrew their appeal of the Inspector's revocation of
    the building permit.
    {¶ 6} The Haueisens appealed to the common pleas court pursuant to R.C. Chapter
    2506, naming the BZA and the city of Worthington as appellees. The Tuckers moved to
    intervene as appellees before the common pleas court. The court granted the Tuckers'
    motion, finding they had an interest in the matter as owners of the Property, they were so
    situated that disposition of the action might impair or impede their ability to protect that
    interest, and their interest was not adequately represented by the BZA and the city of
    Worthington.
    {¶ 7} The parties filed briefs in the common pleas court addressing the merits of
    the Haueisens' appeal. The Tuckers also filed a motion to dismiss, arguing the appeal was
    moot because the Haueisens failed to obtain a stay or injunction of the BZA's decision and
    construction of the Tuckers' residence was substantially complete. The Haueisens filed a
    memorandum in opposition, asserting the BZA decision they appealed would not have been
    subject to a stay or injunction and that the appeal was not moot because it presented
    matters of great public concern. The common pleas court dismissed the appeal, finding it
    was moot because it involved construction and the Haueisens had failed to obtain a stay or
    injunction pending appeal. The court further held the appeal did not present an issue of
    great public importance.
    II. Assignments of Error
    {¶ 8} The Haueisens appeal and assign the following four assignments of error for
    our review:
    I. This appeal should not be dismissed as moot because the
    legal issues presented regarding administration and
    enforcement of zoning ordinances are a matter of great public
    interest and importance.
    No. 19AP-253                                                                             4
    II. Appellant should not be required to address other possible
    exceptions to mootness and a court should not dismiss based
    on its assumptions about why other possible exceptions were
    not addressed.
    III. The BZA decision made and appealed from in this case
    could not be stayed or enjoined because it was an interpretation
    of the zoning ordinances, was not a decision that directly
    allowed construction to proceed, and was not executable.
    IV. The reason why the BZA made no executable decision that
    could be stayed was the fault of property owner Tucker because
    he withdrew his appeal to the BZA of revocation of the building
    permit.
    III. Analysis
    {¶ 9} Before we consider the Haueisens' appeal of the common pleas court's
    decision, we must address two preliminary matters. First, the Tuckers have moved to
    dismiss the present appeal as moot. Second, the Tuckers have also moved to strike a
    supplemental reply brief filed by the Haueisens following oral argument.
    A. Motion to Dismiss Appeal
    {¶ 10} The Tuckers moved to dismiss the Haueisens' appeal to this court as moot,
    reiterating the argument they made in the common pleas court—i.e., that the appeal from
    the BZA decision is moot because it involved construction and the Haueisens failed to
    obtain a stay or injunction pending appeal. In support of their motion, the Tuckers cite
    several of the decisions relied on by the common pleas court in dismissing the BZA decision
    as moot. The Tuckers' motion to dismiss this appeal misconstrues the meaning of those
    decisions. As discussed below, this court has held that an appeal involving construction is
    rendered moot when construction commences and the appellant fails to obtain a stay of
    execution of the trial court's ruling or an injunction pending appeal. TP Mechanical
    Contrs., Inc. v. Franklin Cty. Bd. of Commrs., 10th Dist. No. 08AP-108, 
    2008-Ohio-6824
    ,
    ¶ 20. However, the cases applying that principle have involved situations where the
    common pleas court issued a decision on the underlying administrative appeal rather than
    dismissing the appeal as moot; therefore, the dismissal due to mootness occurred on appeal
    to this court. By contrast, in the present case, the common pleas court concluded the
    Haueisens' appeal from the BZA decision was moot and dismissed the appeal on that basis.
    No. 19AP-253                                                                                5
    Under those circumstances, we have jurisdiction to review the common pleas court's
    determination that the Haueisens' appeal was moot.
    {¶ 11} Accordingly, we deny the Tuckers' motion to dismiss this appeal.
    B. Motion to Strike Supplemental Reply Brief
    {¶ 12} Next, we turn to the Tuckers' motion to strike the Haueisens' supplemental
    reply brief. After oral argument, the Haueisens moved for leave to file a supplemental brief
    instanter on October 4, 2019, and this court granted the motion. The entry granting the
    Haueisens' motion also authorized the Tuckers and the BZA to file supplemental response
    briefs. The Tuckers filed a supplemental response brief on October 15, 2019. The Haueisens
    then filed a reply to the Tuckers' supplemental response brief. The Tuckers moved to strike
    the Haueisens' reply to their supplemental response brief, asserting the issues were fully
    briefed and the Haueisens did not request leave to file a reply brief. The Haueisens filed a
    memorandum in opposition, asserting a reply brief was permitted under the Rules of
    Appellate Procedure and that they were entitled to file a reply brief because the Tuckers
    raised a new legal argument in their supplemental response brief.
    {¶ 13} The Haueisens argue they were entitled to file a reply brief pursuant to App.R.
    16, which provides for the filing of an appellant's brief, an appellee's brief, and an
    appellant's reply brief. The Haueisens assert this structure also applies to supplemental
    briefs—i.e., an appellant's supplemental brief, an appellee's supplemental brief, and an
    appellant's supplemental reply brief. However, after designating aforementioned briefing
    structure, App.R. 16(C) states that "[n]o further briefs may be filed except with leave of
    court." The entry granting the Haueisens' motion to file a supplemental brief stated the
    Haueisens' motion to file the supplemental brief instanter was granted and authorized any
    of the appellees to file a supplemental response brief.         The entry did not permit
    supplemental reply briefs by any party. Further, to the extent the Haueisens argue they
    were entitled to file a reply brief because the Tuckers asserted a new legal argument in their
    supplemental response brief, we reject that argument. In the Haueisens' supplemental
    brief, they asserted there was no legal mechanism under Worthington ordinances or Ohio
    law for them to obtain a stay or injunction of the Tuckers' construction. The Tuckers'
    supplemental response brief notes that the Worthington zoning ordinance provides for a
    remedy of injunction. This was responsive to the Haueisens' assertion and does not
    constitute a new legal argument.
    No. 19AP-253                                                                               6
    {¶ 14} Accordingly, we grant the motion to strike the Haueisens' supplemental reply
    brief, and the contents of that brief will not be considered in this appeal.
    C. Review of Common Pleas Court's Decision
    {¶ 15} The Haueisens appealed the common pleas court's decision pursuant to R.C.
    2506.04, which provides that "[t]he judgment of the [common pleas] court may be
    appealed by any party on questions of law." In this case, the common pleas court did not
    reach the merits of the Haueisens' appeal because it concluded the appeal was moot.
    Whether a case or appeal is moot is a question of law, which we review de novo. Tucker v.
    Leadership Academy for Math & Science of Columbus, 10th Dist. No. 14AP-100, 2014-
    Ohio-3307, ¶ 7. See also Wedgewood, Ltd. Partnership I v. Liberty Twp. Bd. of Zoning
    Appeals, 
    187 Ohio App.3d 24
    , 
    2010-Ohio-2068
    , ¶ 22 (5th Dist.) (applying de novo standard
    of review to common pleas court's dismissal of appeal of Liberty Township Board of Zoning
    Appeals' ruling as moot).
    {¶ 16} The Haueisens' four assignments of error all relate to their underlying claim
    that the common pleas court erred by dismissing their appeal as moot. Accordingly, we will
    address all four of the Haueisens' assignments of error together.
    {¶ 17} As the common pleas court noted, "[t]his court has consistently held that,
    where an appeal involves construction, the appellant fails to obtain a stay of execution of a
    trial court's ruling or an injunction pending appeal, and construction commences, the
    appeal is rendered moot." TP Mechanical at ¶ 20. See also Dublin v. Friedman, 10th Dist.
    No. 16AP-516, 
    2017-Ohio-9127
    , ¶ 19; Meccon, Inc. v. Univ. of Akron, 
    182 Ohio App.3d 85
    ,
    
    2009-Ohio-1700
    , ¶ 28 (10th Dist.); Redmon v. City Council of the City of Columbus, 10th
    Dist. No. 05AP-466, 
    2006-Ohio-2199
    , ¶ 6; Nextel W. Corp. v. Franklin Cty. Bd. of Zoning
    Appeals, 10th Dist. No. 03AP-625, 
    2004-Ohio-2943
    , ¶ 13. The BZA denied the Haueisens'
    appeal on December 7, 2017, and the Haueisens filed their appeal in the common pleas
    court on January 16, 2018. The Tuckers did not move for leave to file a motion to dismiss
    until April 3, 2018. The Haueisens did not move for a stay of the BZA's decision pending
    their appeal in the common pleas court or otherwise seek an injunction to stop construction
    of the Tuckers' home pending appeal at any time prior to the filing of the motion to dismiss.
    The first affidavit submitted by Robert Tucker in support of the Tuckers' motion to dismiss
    in the common pleas court stated that, as of April 2018, significant construction had taken
    place on the Property. A second affidavit submitted by Robert in the common pleas court
    No. 19AP-253                                                                                                 7
    stated that construction on the Property was nearing completion as of February 2019 and
    the Tuckers intended to occupy the house in April 2019.
    {¶ 18} The Haueisens assert the BZA's decision was not subject to a stay or
    injunction because it involved an interpretation of the Worthington zoning ordinance and
    did not directly allow construction on the Property to proceed. The Haueisens argue this is
    distinguishable from the type of decision that would directly allow construction to proceed,
    such as a grant of a variance, issuance of a building permit, or award of a construction
    contract.
    {¶ 19} In Nextel, the Franklin County Board of Zoning Appeals ("board") denied a
    conditional use request to construct a telecommunications facility on property located in
    Madison Township. Nextel at ¶ 1. Nextel appealed to the common pleas court, arguing in
    part that the board lacked authority to regulate public utilities in the rural zoning district
    where the property was located. Id. at ¶ 2. The common pleas court found the board lacked
    jurisdiction to require a conditional use permit for construction of the facility because the
    property was not zoned solely for residential use. Id. The board appealed to this court, but
    Nextel filed a motion to dismiss as moot because the telecommunications facility had
    already been constructed. Id. at ¶ 3-4. This court granted the motion to dismiss, finding
    the board did not even move for a stay of the common pleas court's decision pending its
    appeal. Id. at ¶ 13. Although the underlying board decision in Nextel involved denial of a
    conditional-use permit, the common pleas court's decision turned on interpretation of
    statutes defining the board's jurisdiction. Thus, this was the same type of interpretative
    decision involved in the present appeal. As in Nextel, it appears the Haueisens did not even
    attempt to obtain a stay of the BZA's decision or an injunction to prevent continued
    construction while their appeal was pending.1 Under these circumstances, we conclude the
    common pleas court did not err by concluding the Haueisens' appeal was moot because it
    1 We note the Haueisens also assert that mootness must not result from the action or inaction of a party and
    argue that the Tuckers' withdrawal of their appeal of the Inspector's revocation of the building permit
    prevented the BZA from making a decision that would have been subject to a stay or injunction. In support of
    this argument, the Haueisens cite Roberts v. Put-in-Bay Planning Comm., 6th Dist. No. 93OT040 (July 15,
    1994), and the cases relied on by that decision. However, the dissenting judge in Nextel cited these same cases
    and advocated for the same rationale, but the majority declined to adopt it. See Nextel at ¶ 26-29 (Sadler, J.,
    dissenting). Because this court has continued to apply the majority opinion in Nextel and has not adopted the
    rationale of the dissenting opinion in that case, we decline to do so here.
    No. 19AP-253                                                                                  8
    involved construction on the Property, and the Haueisens failed to obtain a stay of
    execution or injunction pending appeal.
    {¶ 20} The Haueisens further argue their appeal should not have been deemed moot
    because it involved a matter of great public interest and importance. " ' "[A]lthough a case
    may be moot with respect to one of the litigants, the court may hear the appeal where there
    remains a debatable constitutional question to resolve, or where the matter appealed is one
    of great public or general interest." ' " Nextel at ¶ 15, quoting State ex rel. White v. Koch,
    
    96 Ohio St.3d 395
    , 
    2002-Ohio-4848
    , ¶ 16, quoting Franchise Developers, Inc. v.
    Cincinnati, 
    30 Ohio St.3d 28
     (1987), paragraph one of the syllabus. This court has noted
    this is a rare exception to the mootness doctrine, ordinarily only applied by the Supreme
    Court of Ohio. Nextel at ¶ 15. In Nextel, this court rejected application of the "public or
    general interest" exception to the mootness doctrine, noting the underlying issue was
    whether the rural zoning district at question was an area zoned for residential use. Id. at
    ¶ 16. Likewise, in the present case, the issue before the BZA was whether the Property was
    an existing lot of record when the Worthington zoning ordinance was adopted, for purposes
    of determining the appropriate side yard setback requirement. We do not find that to
    constitute an issue of great public or general interest such that the common pleas court
    should decide an otherwise moot issue.
    {¶ 21} Accordingly, we overrule the Haueisens' four assignments of error.
    IV. Conclusion
    {¶ 22} For the foregoing reasons, we deny the Tuckers' motion to dismiss, we grant
    the Tuckers' motion to strike the Haueisens' supplemental reply brief, and we overrule the
    Haueisens' four assignments of error and affirm the judgment of the Franklin County Court
    of Common Pleas.
    Judgment affirmed.
    BRUNNER, J., concurs.
    NELSON, J., concurs in judgment.
    NELSON, J., concurring in judgment.
    {¶ 23} I fully agree that the trial court correctly and necessarily dismissed this action
    as moot, that we have jurisdiction to review that decision on appeal, and that we are well
    No. 19AP-253                                                                                 9
    past the time by which briefing in this matter should have ended. I join in the judgment of
    the court and in its rulings on the Tuckers' motions.
    {¶ 24} I write separately just to underscore that the trial court had no discretion in
    the matter: as it recognized, "[c]ourts will not decide moot cases." Decision and Final
    Judgment Entry Granting Motion to Dismiss Appeal as Moot at 5, quoting Dublin v.
    Friedman, 10th Dist. No. 16AP-516, 
    2017-Ohio-9127
    , ¶ 18. The trial court was right that we
    have long and repeatedly held that " '[w]hen a case is deemed moot, the defending party is
    entitled to a dismissal as a matter of right.' " Dublin at ¶ 20, quoting Lund v. Portsmouth
    Local Air Agency, 10th Dist. No. 14AP-60, 
    2014-Ohio-2741
    , ¶ 6, citing United States v. W.T.
    Grant Co., 
    345 U.S. 629
    , 632 (1953). (Under controlling precedents, a claim "is not moot"
    under certain exceptional circumstances when the challenged action is too short to allow
    remedy before its expiration and the same complaining party is likely to be subject to the
    same action again. See, e.g., State ex rel. Dispatch Printing Co. v. Greer, 
    114 Ohio St.3d 511
    , 513, 
    2007-Ohio-4643
    .)
    {¶ 25} That rule is not limited to the common pleas courts, but is consistent with
    constraints on the judicial power more generally. "That an appellate court * * * will dismiss
    the appeal when the court becomes aware of an event that has rendered the issue moot is a
    proposition of law that harks back" a long time. Cincinnati Gas & Elec. Co. v. Pub. Util.
    Comm., 
    103 Ohio St.3d 398
    , 401, 
    2004-Ohio-5466
    . The judicial power is limited to live
    controversies. Again, "we do not decide moot cases." State v. Cupp, 
    156 Ohio St.3d 207
    ,
    210, 
    2018-Ohio-5211
     (citations omitted) (distinguishing certified conflict questions). Any
    rare " 'public or general interest' exception" tends to be within the exclusive preserve of the
    Supreme Court of Ohio rather than for "a court whose decision does not have binding effect
    over the entire state." Harshaw v. Farrell, 
    55 Ohio App.2d 246
    , 251 (10th Dist.1977). Thus,
    as the majority opinion says at ¶ 20, we (regularly) have "rejected application of the 'public
    or general interest' exception to the mootness doctrine * * *." See also, e.g., State ex rel.
    Yost v. Buechel, 5th Dist. No. 03CAH12071, 
    2004-Ohio-2828
    , ¶ 12 ("We find the issue to
    be moot and not justiciable despite appellant's argument that this case strikes 'at the
    essence of democracy' ").
    {¶ 26} That is not to say that we are precluded from reviewing decisions of the trial
    courts that adjudicate mootness concerns. Absent some development that renders a case
    newly moot at the appellate level, we appropriately exercise appellate review. We have
    No. 19AP-253                                                                    10
    undertaken such review here, affirming the judgment of the Franklin County Court of
    Common Pleas.
    {¶ 27} I very much concur in the judgment of this court.
    _________________
    

Document Info

Docket Number: 19AP-253

Citation Numbers: 2019 Ohio 5085

Judges: Dorrian, J.

Filed Date: 12/10/2019

Precedential Status: Precedential

Modified Date: 12/10/2019