MARK ARDIRE, ET AL. PLAINTIFFS-APPELLANTS
CITY OF WESTLAKE CITY COUNCIL, ET AL. DEFENDANTS-APPELLEES
Administrative Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-759816
ATTORNEY FOR APPELLANTS Gerald W. Phillips Phillips & Co., L.P.A.
ATTORNEYS FOR APPELLEES John D. Wheeler Director of Law, Robin R. Leasure Assistant Director of Law
BEFORE: Stewart, A.J., Rocco, J., and E.A. Gallagher, J.
JOURNAL ENTRY AND OPINION
MELODY J. STEWART, ADMINISTRATIVE JUDGE
(¶ 1} Appellants Mark and Colby Ardire filed this administrative appeal against the city of Westlake after the city adopted a development plan for a new middle school that did not make specific proposals for dealing with traffic, noise abatement, and landscaping for a proposed driveway to be located adjacent to their property. The Ardires did not file their assignments of error within 20 days of the record being filed, so the city asked the court to dismiss the appeal. The court granted the Ardires an additional 14 days to file their assignments of error, but stated its "intent to dismiss for want of prosecution" and notified the Ardires that a failure to file their assignments of error "may result in the dismissal of the appeal" within the time ordered. When the deadline for filing their assigned errors arrived, the Ardires sought an extension of time and also objected to the composition of the transcript of proceedings, claiming that the city provided an incomplete record. The city filed a second motion to dismiss, arguing that the Ardires had yet to file their assignments of error. The Ardires did not respond to this motion nor did the court rule on the motion for an extension of time or the objection to the record. Eight months later, the court granted as "unopposed" the motion to dismiss on grounds that the Ardires had yet to comply with the order to file assignments of error.
(¶ 2} The first issue we consider is whether this appeal has been rendered moot by the completion of the driveway. The Ardires did not ask the court to stay construction of the driveway after it dismissed their appeal, and the city now maintains that the driveway has been "substantially constructed." The Ardires maintain that the city has yet to install mandatory buffering, landscaping, and drainage along the property, so construction is not complete.
(¶3} The mootness doctrine has its roots in the idea that courts decide actual controversies, not abstract propositions. If events transpire post-judgment that make it impossible for an appellate court to grant any effectual relief, the appellate court has nothing to decide and the appeal is rendered moot. Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910), syllabus. Our desire to avoid issuing decisions on abstract propositions is so strong that mootness questions are one of the rare times when the parties are allowed to supplement the record on appeal, but only for the purpose of establishing whether an issue is moot. See, e.g., Gajewski v. Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 91101, 2008-Ohio-5270, ¶ 20.
(¶ 4} In construction cases, the courts have held that "where an appeal involves the construction of a building or buildings and the appellant fails to obtain a stay of execution of the trial court's ruling and construction commences, the appeal is rendered moot." Schuster v. Avon Lake, 9th Dist. Lorain No. 03CA008271, 2003-Ohio-6587, ¶ 8. Both sides have supplemented the record on appeal with photographs to document their respective positions on whether the project is complete: the city submitted photographs to show that, as of March 2013, the driveway at the center of the controversy has been substantially completed; the Ardires submitted photographs to show that neither buffering for noise abatement nor drainage had been installed.
(¶ 5} As we understand them, the Ardires' objections to the middle school plan were not based on the driveway itself, but to plans adopted by the city that did not comport with city ordinances requiring the plan to account for traffic flow, landscape buffering to abate noise from vehicles using that driveway, and flooding issues caused by the removal of trees during construction of the driveway. The substantial completion of the driveway is enough for us to find that this appeal is moot as to the construction of the driveway itself, Pinkney v. Southwick Investments, LLC, 8th Dist. Cuyahoga Nos. 85074 and 85075, 2005-Ohio-4167, ¶ 13, but the issues the Ardires raise in this appeal are separate and distinct from the construction of the driveway. The supplemental evidence they offered suggests that the landscaping and water control measures are not complete, so they are not moot.
(¶6} The Ardires raises a total of 11, overlapping assignments of error. The substance of these assigned errors flow from the premise that the court denied them the opportunity to present their evidence before the city council. From this premise they argue that (1) their inability to offer evidence meant that the record was incomplete; (2) with an incomplete record before it, the court was required to hold an evidentiary hearing; and (3) until a complete record was before ...