Park Lane Apts. v. Parks

[Cite as Park Lane Apts. v. Parks, 2021-Ohio-3510.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Park Lane Apartments Court of Appeals No. L-20-1208
Appellee Trial Court No. CVG-20-10246
v.
Devon Parks DECISION AND JUDGMENT
Appellant Decided: September 30, 2021
*****
Devon Parks, pro se.
*****
MAYLE, J.
{¶ 1} This matter is before the court on the appeal filed by appellant, Devon Parks,
contesting the trial court’s decision overruling his objections to a magistrate’s decision
that granted a writ of restitution to appellee, Park Lane Apartments. Because the case is
moot, we dismiss Parks’s appeal.
{¶ 2} Mootness is an issue of subject-matter jurisdiction; appellate courts have no
authority to decide moot appeals. In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867
N.E.2d 408, ¶ 9. Thus, mootness can be raised by the appellate court sua sponte. State v.
Feister, 5th Dist. Tuscarawas No. 2018 AP 01 0005, 2018-Ohio-2336, ¶ 18, citing North
Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 92, 30 L.Ed.2d 413 (1971). An issue is
moot when it is or has 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.” (Internal
quotations omitted.) State ex rel. Cincinnati Enquirer v. Hunter, 141 Ohio St.3d 419,
2014-Ohio-5457, 24 N.E.3d 1170, ¶ 4.
{¶ 3} Evidence that a case is moot can come from outside of the record. Darr v.
Livingston, 2017-Ohio-841, 85 N.E.3d 1260, ¶ 16 (10th Dist.), citing State ex rel.
Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 8.
In deciding whether an issue is moot, an appellate court can sua sponte take judicial
notice of “facts capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned,” which include “public records and
government documents available from reliable sources on the internet.” Id. at ¶ 16, 18(finding that county auditor’s online records were sufficient evidence of mootness), citing
Mountaineer Invests., LLC v. Performance Home Buyers, LLC, 2d Dist. Montgomery No.
24173, 2011-Ohio-3614, ¶ 11; Ussher v. Ussher, 2d Dist. Champaign No. 2009-CA-49,
2.
2011-Ohio-1440, ¶ 6, fn. 3; and States Resources Corp. v. Hendy, 9th Dist. Summit No.
25423, 2011-Ohio-1900, ¶ 20.
{¶ 4} In the course of determining this appeal (i.e., Parks’s appeal of Toledo
Municipal Court case No. CVG-20-10246), it came to our attention that Park Lane had
filed a second forcible-entry-and-detainer action against Parks. See In re Disqualification
of Howe, 163 Ohio St.3d 1281, 2021-Ohio-1683, 170 N.E.3d 909. For purposes of
determining whether this appeal is moot, we take judicial notice of the following facts
from the electronic docket maintained by the Toledo Municipal Court clerk in Toledo
Municipal Court case No. CVG-21-01801.
{¶ 5} On February 9, 2021, Park Lane filed its second eviction complaint. On
April 29, 2021, the trial court approved the magistrate’s decision granting possession of
the premises to Park Lane, issuing a writ of restitution, and ordering the bailiff to execute
the writ. The eviction was scheduled for May 28, 2021. On May 28, the bailiff filed a
return of service on the writ of restitution indicating that Park Lane “Took Possession on
Own.” Parks did not file an appeal of the trial court’s April 29, 2021 decision or seek a
stay of execution.
{¶ 6} Because “[a]n action in forcible entry and detainer ‘determines the right to
immediate possession of the property and nothing else[,]’” the appeal of an eviction is
moot when the landlord retakes possession of the property. Tiefenbacher v. Shorter, 6th
Dist. Lucas No. L-20-1186, 2021-Ohio-2624, ¶ 20, quoting Seventh Urban, Inc. v. Univ.
Circle Property Dev., Inc., 67 Ohio St.2d 19, 25, 423 N.E.2d 1070 (1981), fn. 11. This is
3.
because once a landlord retakes the property, “‘there is no further relief that can be
granted.’” Id., quoting Landings at Beckett Ridge v. Holmes, 12th Dist. Butler No.
CA2020-04-050, 2020-Ohio-6900, ¶ 30; Showe Mgt. Corp. v. Hazelbaker, 12th Dist.
Fayette No. CA2006-01-004, 2006-Ohio-6356, ¶ 7. The sole method for the party
appealing a forcible-entry-and-detainer action to avoid mootness is by seeking and
receiving a stay of execution after filing the appeal and posting any required bond. R.C.
1923.14(A); Tiefenbacher at ¶ 21.
{¶ 7} Here, although Parks sought and received from this court a stay of execution
in case No. CVG-20-10246, and our order staying execution did not require him to post
any bond, we nonetheless find that Parks’s appeal is moot. This case is unique because,
even if we were to rule in Parks’s favor and reverse the trial court’s judgment granting
Park Lane a writ of restitution, “‘there is no further relief that can be granted.’” Id. at ¶
20, quoting Landings at Beckett Ridge at ¶ 30. Parks was evicted from the premises in a
separate, unrelated eviction action—case No. CVG-21-01801—which terminated his
right to possession of the property. Nothing this court decides related to case No. CVG-
20-10246 will “definitely affect existing legal relations” between Parks and Park Lane;
thus, the issues Parks raises in his appeal have become “fictitious, colorable, hypothetical,
academic or dead.” (Internal quotations omitted.) Hunter, 141 Ohio St.3d 419, 2014-
Ohio-5457, 24 N.E.3d 1170, at ¶ 4. As such, we have lost subject-matter jurisdiction
over Parks’s appeal, and have no authority to render a decision. S.J.K., 114 Ohio St.3d
23, 2007-Ohio-2621, 867 N.E.2d 408, at ¶ 9.
4.
{¶ 8} Accordingly, we dismiss Parks’s appeal as moot. Parks is ordered to pay the
costs of this appeal pursuant to App.R. 24.
Appeal Dismissed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. _______________________________
JUDGE
Gene A. Zmuda, P.J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
5.