Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cleveland Municipal Court Housing Division
Case No. 2016 CVH 018280
Douglass & Associates Co., L.P.A., Sean F. Berney, David
M. Douglass, Sandra A. Prebil, Michael E. Reardon, and Daniel
J. Wodarczyk, for appellee.
F. Spears, pro se.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, PRESIDING JUDGE
1} 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.
2} 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."
3} 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.
4} 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.
5} 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
6} 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. Further complicating the procedural
posture of this 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.
7} 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, ¶
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.
9} 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. 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.
10} The ...