Huntington Natl. Bank v. CPW Properties, Ltd. , 2018 Ohio 1219 ( 2018 )

[Cite as Huntington Natl. Bank v. CPW Properties, Ltd., 2018-Ohio-1219.]
STATE OF OHIO, CARROLL COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
THE HUNTINGTON NATIONAL BANK, ) CASE NO. 17 CA 0917
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
CPW PROPERTIES, LTD. ET AL., )
)
DEFENDANTS-APPELLEES, )
)
AND )
)
OHIO POWER COMPANY, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Motion to Dismiss Appeal
JUDGMENT: Dismissed.
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 28, 2018
[Cite as Huntington Natl. Bank v. CPW Properties, Ltd., 2018-Ohio-1219.]
APPEARANCES:
For Plaintiff-Appellee: Atty. Alan M. Medvick
Atty. Wade T. Doerr
Atty. Christopher J. Niekamp
Niekamp, Weisensell,
Mutersbaugh & Mastrantonio, LLP
The Nantucket Building, Third Floor
23 South Main Street
Akron, Ohio 44308
For Defendant-Appellant: Atty. Marilyn McConnell
American Electric Supply Power Service
1 Riverside Plaza, 29th Floor
Columbus, Ohio 43215
Atty. R. Leland Evans
Mary McWilliams Dengler
Dickie, McCamey & Chilcote, P.C.
250 Civic Center Drive, Suite 280
Columbus, Ohio 43215
[Cite as Huntington Natl. Bank v. CPW Properties, Ltd., 2018-Ohio-1219.]
PER CURIAM.
{¶1} Appellee Huntington National Bank ("Huntington") has filed a motion to
dismiss this appeal on the grounds that the underlying trial court action has been
voluntarily dismissed, and because the matter under review has become moot due to
the debtor's bankruptcy filing. Appellant has filed a memorandum in opposition. For
the following reasons, Appellee's motion is sustained and the appeal is dismissed.
{¶2} This case began as a foreclosure action between Huntington and CPW
Properties, Ltd. ("CPW"). The trial court then issued an order appointing a receiver
over CPW's property. That order concluded with the words "The Court has
determined there is no just reason for delay. It is so ordered." Appellant Ohio Power
Company ("Ohio Power") filed a motion to intervene based on provisions in the
receivership order that prohibited utility companies from discontinuing service to the
property. The trial court granted the motion to intervene. Ohio Power then filed a
motion to set aside the order appointing receiver. This appeal followed immediately
thereafter.
{¶3} On August 25, 2017, CPW filed for bankruptcy. We placed part of this
appeal under a stay based on the automatic stay provisions of the bankruptcy code,
Section 362(a)(1), Title 11, U.S.Code. We allowed the part of the appeal dealing with
the controversy between non-debtor third parties Huntington and Intervenor-
Appellant Ohio Power to continue. Soon after we issued that order, Huntington
voluntarily dismissed the trial court action and filed the motion to dismiss this appeal.
{¶4} Appellee argues that we no longer have jurisdiction to hear this appeal
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because the underlying trial court action has been voluntarily dismissed under Civ.R.
41(A)(1). Had the voluntary dismissal been filed before the appeal was filed, we
would likely agree with Appellee. In this case, though, the voluntary dismissal was
filed while this appeal was pending. We agree with the Sixth District Court of
Appeals in its conclusion that "[t]his court is unaware of any Ohio case finding a
voluntary dismissal filed after a timely notice of appeal divests the appellate court of
jurisdiction." Huntington National Bank v. Syroka, 6th Dist. No. L-09-1240, 2010-
Ohio-1358, ¶ 7. Voluntary dismissal of an appeal by the appellant or by agreement
of all parties is governed by App.R. 28. There is no method under App.R. 28 for an
appellee to voluntarily dismiss an appeal, and we are not persuaded that Civ.R. 41
can be used to bypass the procedure established by App.R. 28.
{¶5} There seems to be little doubt, though, that the actual dispute between
the parties is moot. The foreclosure action has been dismissed and the reason for
the receivership, as well as the receivership itself, dissolved with the debtor's filing of
the bankruptcy petition. " '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, 84 Ohio App. 373, 393,
83 N.E.2d 82, 91 (7th Dist.1948).
{¶6} "The duty of a court of appeals is to decide controversies between
parties by a judgment that can be carried into effect, and the court need not render
an advisory opinion on a moot question or a question of law that cannot affect the
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issues in a case. Thus, when circumstances prevent an appellate court from granting
relief in a case, the mootness doctrine precludes consideration of those issues."
Schwab v. Lattimore, 1st Dist. No. C-050874, 166 Ohio App. 3d 12, 2006-Ohio-1372,
848 N.E.2d 912, ¶ 10 (internal citations omitted).
{¶7} Courts have long-recognized a few narrow exceptions to the mootness
doctrine. "Although a case may be moot, a court may hear the appeal where the
issues raised are 'capable of repetition, yet evading review.' " State ex rel. Plain
Dealer Pub. Co. v. Barnes, 38 Ohio St. 3d 165, 527 N.E.2d 807 (1988), paragraph
one of the syllabus.
{¶8} “This exception applies when the challenged action is too short in
duration to be fully litigated before its cessation or expiration, and there is a
reasonable expectation that the same complaining party will be subject to the same
action again.” State ex rel. Dispatch Printing Co. v. Louden, 91 Ohio St. 3d 61, 64,
741 N.E.2d 517 (2001).
{¶9} This exception does not apply to the present case. Appellant cites
State of Ohio ex rel. Smith v. Amin Hotels, Ltd., 10th Dist. No. 11AP-663, 2012-Ohio-
1317, as being similar to the situation in this appeal, and yet, the foreclosure action in
that case (involving Huntington as the mortgagor and an electric power utility as the
intervenor) was ongoing, the matter was resolved in favor of the public utility, and the
case was remanded to the trial court for further proceedings. Appellant, it would
seem, is asking us to apply an exception to the mootness doctrine simply to reinforce
the conclusion in Amin Hotels, Ltd. We are not convinced by Appellant's argument
that the issues in this appeal will evade review when it cites to a very recent and
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uncannily similar case in which the matter did not evade review.
{¶10} The other exception to the mootness doctrine is where there remains a
debatable constitutional question to resolve, or where the matter appealed is one of
great public or general interest. Franchise Developers, Inc. v. City of Cincinnati, 30
Ohio St. 3d 28, 29, 505 N.E.2d 966 (1987), paragraph one of the syllabus. We
hesitate to even consider this exception because “such an action should be taken
only by the highest court in the state, rather than an intermediate appellate court.” In
re Brown, 10th Dist. No. 03AP-1205, 2005-Ohio-2425, ¶ 18. The question of whether
a public utility can be ordered to provide services in a receivership would likely
involve statutory or administrative law long before any constitutional issues might
arise. The Amin Hotels, Ltd. case cited by Appellant bears this out. We find that no
other appellate court has cited Amin Hotels, Ltd., and there are no facts in the record
that could possibly lead us to conclude that the matter is of great public or general
interest.
{¶11} Appellee Huntington's motion to dismiss is sustained. Appeal
dismissed. It is so ordered.
{¶12} Final order. Clerk to service notice as provided by Civil Rules. Costs
taxed to Appellant Ohio Power Company.
Robb, P.J., concurs.
Donofrio, J., concurs.
Waite, J., concurs