Cleveland v. Spears ( 2019 )

[Cite as Cleveland v. Spears, 2019-Ohio-3041.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 107841
v. :
GILDA F. SPEARS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: July 25, 2019
Civil Appeal from the Cleveland Municipal Court
Housing Division
Case No. 2016 CVH 018280
Appearances:
Douglass & Associates Co., L.P.A., Sean F. Berney,
David M. Douglass, Sandra A. Prebil, Michael E. Reardon,
and Daniel J. Wodarczyk, for appellee.
Gilda F. Spears, pro se.
SEAN C. GALLAGHER, P.J.:
Gilda F. Spears appeals the judgment entered in favor of the city of
Cleveland (“the City”) for the costs associated with the demolition of an unsafe
structure. For the following reasons, the appeal is dismissed.
The City filed a claim against Spears, under R.C. 715.261(B)(2), to
recover the total costs of abating a nuisance on the subject property, in this case the
demolition of a condemned structure that occurred sometime in 2011. Spears
owned the real property at the time of condemnation and demolition, but the
property went through a tax-foreclosure proceeding, ultimately divesting Spears of
her ownership interest in early 2014. After Spears was divested of her ownership
interest, but before the City filed the underlying action, R.C. 715.261(B)(2) was
amended to include language redefining against whom the action could be brought.
By the time the City filed the underlying action, in December 2016, R.C.
715.261(B)(2) permitted the City to commence a civil action to recover the
demolition costs from the “person that held title to the parcel at the time the costs
were incurred.”
Under the previous version of the statute, in effect at the time of the
tax foreclosure and the termination of Spears’s ownership interest, the City was only
authorized to file a civil action to recover the cost of the abatement against “the
owner” of the property. See, e.g., Miller v. Thorndyke, 30 Ohio App. 2d 71, 74, 283
N.E.2d 184 (1st Dist.1971) (owner purchasing property from foreclosure takes the
property subject to the demolition lien only if the lien is perfected before the
foreclosure sale); Orrenmaa v. CTI Audio, Inc., 11th Dist. Ashtabula No.
2007-A-0088, 2008-Ohio-4299, ¶ 126 (purchaser was aware of “pending”
demolition and was the owner at the time the costs were incurred, and the
municipality filed the action to recover the costs under R.C. 715.261). The term
“owner” was not statutorily defined, and Cleveland has presented no authority
providing a definition of “owner” to include the previous owner of the property. See
e.g., Dayton v. Caslin, 68 Ohio App. 3d 312, 315-316, 588 N.E.2d 250 (2d Dist.1990)
(action to recoup abatement costs against the owner of the property permitted after
certifying the demolition costs to the county auditor to be collected as real estate
taxes). Arguably, the legislature’s decision to amend the statute by omitting the term
“owner” and substituting it with the phrase “person that held title to the parcel at
the time the costs were incurred” demonstrates that the term “owner” did not
include a previous owner.
Although Spears alluded to the fact that R.C. 715.261 had been
amended and the version referenced by the magistrate was not effective as to Spears,
she did not present any specific argument regarding whether the amendment of
division (B)(2) determining against whom the municipality may file the civil action,
amending it from “owner” to “person that held title,” impacted the City’s claim
against her. As a result, we simply note the change in the law but cannot address
the impact of the amendment. App.R. 16(A)(7); State v. Tate, 140 Ohio St. 3d 442,
2014-Ohio-3667, 19 N.E.3d 888, ¶ 21.
Nevertheless, the case proceeded to trial before a magistrate. Spears
claimed that the City was precluded from filing the civil action because the costs of
the demolition had been placed as a charge on the tax list and duplicate as permitted
under R.C. 715.261(B)(1). According to Spears, the City was required to intervene in
the tax foreclosure case to recoup the costs or forever be barred from seeking
recovery under the doctrine of res judicata. The magistrate disagreed and found in
favor of the City, which was not a named party in the tax foreclosure case. On the
day the magistrate’s decision was filed, the trial court adopted the decision as
permitted under Civ.R. 53(D)(4)(e)(i). Spears filed objections, but well outside the
14-day period that would have extended the time in which to appeal the final
decision. The trial court summarily denied the belated objections, and it was from
that decision that Spears originally appealed. Spears did not perfect a timely appeal
from the trial court’s judgment adopting the magistrate’s decision. Downtown
Properties v. Haddad, 8th Dist. Cuyahoga No. 96023, 2011-Ohio-4117, ¶ 11
(untimely objections following the court’s adoption of the magistrate’s decision
within the 14-day objection period are moot, and the only recourse is to file a motion
for relief from judgment under Civ.R. 60(B)); Olson v. Olson, 7th Dist. Columbiana
No. 15 CO 2, 2015-Ohio-5550, ¶ 37 (trial court lacks jurisdiction to review untimely
objections if the magistrate’s decision was adopted during the 14-day objection
period).
During the preliminary stages of the appeal, Spears filed a motion for
relief from judgment under Civ.R. 60(B) consistent with Haddad. After the trial
court denied the motion, Spears amended her notice of appeal to include the
decision denying the motion for relief from judgment. It is this judgment that is the
basis of the current appeal.1 Further complicating the procedural posture of this
1 The City did not challenge the process by which the notice of appeal was amended.
Initially, the City asked to dismiss the appeal of the belated objections, claiming that the
decision denying the belated objections was not a final appealable one. That motion to
appeal, however, Spears did not effectuate a stay of the final judgment. The trial
court granted her motion to stay execution of the final judgment but conditioned it
on the posting of a bond. Spears did not post the required bond, and the City
executed on the judgment during this appeal. Through that process, the City
received full satisfaction of the final judgment.
Appellate courts cannot review questions that do not involve live
controversies. Bayview Loan Servicing v. Salem, 9th Dist. Summit No. 27460,
2015-Ohio-2615, ¶ 7. “It is a well-established principle of law that a satisfaction of
judgment renders an appeal from that judgment moot.” Blodgett v. Blodgett, 49
Ohio St. 3d 243, 245, 551 N.E.2d 1249 (1990). As has been recognized, absent fraud,
a timely appeal should be dismissed if the final judgment is voluntarily paid and
satisfied because such payment puts an end to the controversy and takes away from
the defendant the right to appeal or prosecute error. Id., citing Rauch v. Noble, 169
Ohio St. 314, 316, 159 N.E.2d 451 (1959), and Lynch v. Bd. of Edn., 116 Ohio St. 361,
156 N.E. 188 (1927), paragraph three of the syllabus. “Once the rights and
obligations of the parties have been extinguished through satisfaction of the
judgment, a judgment on appeal cannot have any practical effect upon the issues
raised by the pleadings.” Akron Dev. Fund I, Ltd. v. Advanced Coatings Internatl.,
Inc., 9th Dist. Summit No. 25375, 2011-Ohio-3277, ¶ 21.
dismiss the appeal was denied because it was filed after Spears amended her notice of
appeal to reflect her appeal of the trial court’s denial of the motion for relief from
judgment, which is a final appealable order. Colley v. Bazell, 64 Ohio St. 2d 243, 245, 416
N.E.2d 605 (1980). Appellate courts have jurisdiction to review such appeals.
Obtaining satisfaction through garnishment proceedings is
considered a “voluntary” payment. Francis David Corp. v. MAC Auto Mart, Inc.,
8th Dist. Cuyahoga No. 93951, 2010-Ohio-1215, ¶ 12. In order to avoid execution on
the judgment, a stay of execution must be obtained and a supersedeas bond or its
equivalent must be posted. Id. In the event a judgment is satisfied through
garnishment or attachment, any pending appeal is deemed moot and dismissal of
the appeal is the appropriate remedy. Id.; Cleveland v. Embassy Realty Invests.,
Inc., 8th Dist. Cuyahoga No. 105091, 2018-Ohio-4335, ¶ 23. An “‘event that causes
a case to be moot may be proved by extrinsic evidence outside the record.’” State ex
rel. Nelson v. Russo, 89 Ohio St. 3d 227, 228, 2000-Ohio-141, 729 N.E.2d 1181,
quoting Pewitt v. Lorain Corr. Inst., 64 Ohio St. 3d 470, 472, 1992-Ohio-91, 597
N.E.2d 92; Miner v. Witt, 82 Ohio St. 237, 238, 92 N.E. 21 (1910); State v. Hagwood,
8th Dist. Cuyahoga No. 83701, 2004-Ohio-5967, ¶ 5; see also Wizards of Plastic
Recycling, L.L.C. v. R & M Plastic Recycling, L.L.C., 9th Dist. Summit No. 25951,
2012-Ohio-3672, ¶ 4, citing Miner and Mills v. Green, 159 U.S. 651, 653, 16 S. Ct.
132, 40 L. Ed. 293 (1895). Appellate courts are not constrained to resolve the
mootness issue from the appellate record alone.
In this case, the City suggested on the record that it obtained full and
final payment as satisfaction of the outstanding judgment. The City also presented
materials demonstrating that fact of consequence. Spears has not challenged the
City’s factual assertion but instead claims that satisfying the judgment through the
execution that targeted her bank account, from which the moneys were withdrawn,
was not a voluntary act.2 Spears has not presented any argument upon which we
could diverge from the well-settled law that satisfaction through an action in
garnishment or attachment may render an appeal moot based on the appellant’s
failure to obtain a stay of the final judgment. App.R. 16(A)(7). It is the appellant’s
responsibility to ensure the stay is obtained in order to preserve appellate review. In
this case, Spears sought a stay but failed to post the required bond as ordered by the
trial court. The stay never went into effect, and the City obtained moneys satisfying
the entire judgment during the pending appeal. The satisfaction of the judgment
ended the controversy between the parties, and there is no further relief that can be
provided by this court.
The appeal is dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
municipal court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____
SEAN C. GALLAGHER, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MICHELLE J. SHEEHAN, J., CONCUR
2 Spears claims the City’s execution on the judgment was not authorized by law.
Those proceedings occurred in another county and are outside our jurisdiction. Nothing
within our record suggests that Spears has timely challenged the action in that court.