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State ex rel. City of Englewood Director of Law v. Red Carpet Inn

Court of Appeals of Ohio, Second District, Montgomery

March 30, 2018

RED CARPET INN, et al. Defendants-Appellees

          Civil Appeal from Common Pleas Court Trial Court Case No. 2016-CV-5658

          MICHAEL P. MCNAMEE, Atty., CYNTHIA P. MCNAMEE, Atty., GREGORY B. O'CONNOR, Atty., and ALEXANDER W. CLOONAN, Atty., Attorneys for Plaintiff-Appellant

          MATTHEW C. SORG, Atty. Attorney for Defendants-Appellees


          TUCKER, J.

         {¶ 1} Plaintiff-appellant, the City of Englewood Director of Law, appeals from the trial court's final judgment of April 24, 2017, in which the court dismissed his abatement action against Defendants-appellees, Satya Hospitality Corporation and Rajesh Patel. Presenting two assignments of error, Appellant argues essentially that the trial court misinterpreted several sections of R.C. Chapter 3767. We find, however, that the underlying legal controversy has since been rendered moot, and therefore, this appeal is dismissed in accord with the mootness doctrine.

         I. Facts and Procedural History

         {¶ 2} Beginning in 2001, Satya Hospitality Corporation ("SHC") owned and operated a Red Carpet Inn franchise in Englewood, located on the parcel of land it owns at 15 Rockridge Road. Appellant initiated an abatement action against Appellees on November 7, 2016, alleging that Appellees' business qualified as a nuisance under R.C. 3767.01(C)(2) as the result of purportedly significant "illegal and immoral activity [on the premises, ] includ[ing] drug use and prostitution." Appellant's Br. 3.

         {¶ 3} The parties tried the case to the bench on January 26, 2017. On March 8, 2017, the trial court entered a verdict in Appellees' favor and directed the parties to submit proposed findings of fact pursuant to Civ.R. 52. The court thereafter entered its final judgment, captioned "Findings of Fact and Conclusions of Law, " on April 24, 2017, formally dismissing Appellant's complaint with prejudice.

         {¶ 4} Appellant timely filed his notice of appeal on May 18, 2017. Several months afterward, in late September or early October, 2017, Appellees "voluntarily demolished" the building in which the Red Carpet Inn franchise had been operated, leaving only the building's "concrete footers in the ground." Appellant's Br. 2; Appellees' Br. 1-2.

         II. Analysis

         {¶ 5} Appellees raise the prospect of mootness in their brief, though without discussion. Appellees' Br. 1-2. In his reply brief, Appellant acknowledges "that an appellate court lacks jurisdiction to adjudicate moot claims" and concedes that the trial court could, on remand, hardly order the closure of facilities that no longer exist. See Appellant's Br. 2. Nevertheless, Appellant argues that "at least two" exceptions to the mootness doctrine apply to this case. Id. at 3. Specifically, Appellant refers to the exceptions applicable to "appeals [in which] the issues raised are 'capable of repetition, yet evading review, ' " and appeals in which "the matter appealed is one of great public or general interest." State ex rel. Plain Dealer Publ'g Co. v. Barnes, 38 Ohio St.3d 165, 527 N.E.2d 807 (1988), paragraph one of the syllabus, quoting S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911), and Franchise Developers, Inc. v. City of Cincinnati, 30 Ohio St.3d 28, 505 N.E.2d 966 (1987), paragraph one of the syllabus.

         {¶ 6} The "role of courts is to decide adversarial legal cases and to issue judgments that can be carried into effect." Cryan v. Cryan, Ohio Sup. Ct. Slip Opinion No. 2018-Ohio-24, ¶ 9, citing Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). Thus, when the parties to an action " lack a legally cognizable interest in the outcome, ' [the] case becomes moot." Id., quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Conversely, "if an actual controversy exists because [the] court [can] grant the requested relief, [then] the case is not moot, and a consideration of the merits is warranted." State ex rel. Gaylor, Inc. v. Goodenow, 125 Ohio St.3d 407, 2010-Ohio-1844, 928 N.E.2d 728, ¶ 11. An "appellate court need not consider an issue, and will dismiss [an] appeal, when [it] becomes aware of an event that has rendered the issue moot * * *." Cincinnati Gas & Elec. Co. v. Pub. Util. Comm'n, 103 Ohio St.3d 398, 2004-Ohio-5466, 816 N.E.2d 238, ¶ 15, citing Miner v. Witt, 82 Ohio St. 237, 238, 92 N.E. 21 (1910); see also Townsend v. Antioch Univ., 2d Dist. Greene No. 2008-CA-103, 2009-Ohio-2552, ¶ 8, citing Tschantz v. Ferguson, 57 Ohio St.3d 131, 133, 566 N.E.2d 655 (1991).

         {¶ 7} Here, we find that the instant case has been made moot by the demolition of the improvements on Appellees' property. Appellant predicated the abatement action against Appellees on allegations that the facilities of the Red Carpet Inn were used for prostitution and for trafficking in controlled substances, along with allegations that the facilities themselves were structurally unsafe and not maintained in compliance with applicable public health regulations. See Compl. ¶ 16-23, 25-26, 28-32, 35, 44, 48-49 and 51, Nov. 7, 2016. As Appellant recognizes, however, even assuming that Appellees' property qualified as a nuisance for the reasons alleged in the complaint, the demolition of the improvements on the property has effectively accomplished the permanent abatement of the nuisance, leaving no regulatory violations or illegal activity to enjoin. The demolition of the improvements, moreover, would seem to be the result ultimately sought by the City of Englewood itself. See Compl. ¶ 41.

         {¶ 8} Appellant argues that the mootness doctrine should not apply to this appeal because the issues presented are capable of repetition but likely to evade review. Appellant's Br. 4-5. Although Appellant agrees that "the Red Carpet Inn, specifically, is no longer a concern, " he avers that "there are several other hotels in Englewood and the greater Miami Valley" potentially subject to abatement for similar reasons. Id. at 4. Consequently, Appellant claims a "need[] [for ...

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