BRENDA DENEFIELD, et al. Appellants
MANUEL NEMER, et al. Appellees
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV-2016-08-3700
T. LINNEN, JR., Attorney at Law, for Appellants.
E. DICKINSON, Attorney at Law, for Appellees.
R. YORK, Attorney at Law, for Appellees.
M. HENSHAW, Attorney at Law, for Appellees. TANIA T. NEMER,
Attorney at Law, for Appellees.
DECISION AND JOURNAL ENTRY
J. CARR JUDGE.
Plaintiffs-Appellants Brenda Denefield, American Legion,
Inc., and Highland Square Management, Inc., collectively
"Property Owners," appeal from the judgment of the
Summit County Court of Common Pleas. This Court affirms in
part, reverses in part, and remands the matter for
proceedings consistent with this decision.
This matter concerns the development of four parcels of land
in the City of Akron. Those parcels are owned by
Defendant-Appellee Lebo Holdings, LLC. Defendant-Appellee
Manuel Nemer is Lebo Holdings, LLC's managing partner.
Property Owners own property adjacent to one or more of the
In 2013, Mr. Nemer submitted an application to
Defendant-Appellee Akron City Planning Commission seeking a
conditional use permit to construct a retail/apartment
development on one of the parcels: 795 West Market Street.
Ultimately, both the planning commission and
Defendant-Appellee Akron City Council approved the permit;
Akron City Council issued Ordinance No. 186-2013, which was
later signed by the mayor. The ordinance authorized Mr. Nemer
to develop and use four parcels for the retail/apartment
In July 2013, Highland Square Management, Inc. filed an
administrative appeal challenging the granting of the
conditional use permit. Therein, Highland Square Management,
Inc. pointed to numerous defects in the application, notice,
and procedure adopting Ordinance No. 186-2013. Much of the
concern centered on the fact that the application only
mentioned 795 West Market Street but the conditional use
approval included three other parcels, two of which were
zoned single family residential. Highland Square Management,
Inc. viewed this as an improper rezoning of the parcels
without an application for a variance. Appellees in the
administrative appeal were Akron City Council and Akron City
Later, but prior to any ruling in the administrative appeal,
Highland Square Management, Inc. filed a civil action seeking
injunctive relief related to construction and use of the
parcels. That civil action named Lebo Holdings, LLC, Mr.
Nemer, and Summit County as defendants. The two matters were
The trial court dismissed the administrative appeal with
prejudice concluding that Highland Square Management, Inc.
failed to serve Akron City Council or Akron City Planning
Commission; thus, Highland Square Management, Inc. failed to
perfect its appeal. The trial court also dismissed the action
for injunctive relief with prejudice. Highland Square
Management, Inc. appealed the judgment and this Court
affirmed, following a remand for the trial court to rule on a
Civ.R. 60(B) motion. See Highland Square Management, Inc.
v. Akron, 9th Dist. Nos. 27211, 27372, 2015-Ohio-401,
¶ 5, 24.
On June 18, 2015, Property Owners filed a complaint against
Lebo Holdings, LLC, Mr. Nemer, and Defendants-Appellees City
of Akron Planning Commission and Akron City Council
(collectively "Akron"). Property Owners sought a
declaratory judgment finding that Ordinance No. 186-2013 was
unlawful and void and also sought injunctive relief. In their
first claim, Property Owners argued Akron erred in approving
the conditional use petition when there "was no
compliance with numerous mandatory procedural requirements *
* *" In the second count, Property Owners asserted that
Akron, Mr. Nemer, and Lebo Holdings, LLC "intend to
create a public alley or road on the residential parcels and
have failed to follow the procedures and comply with the
notice requirements under [R.C. 723.09 and 723.10.]"
Property Owners later voluntarily dismissed the action.
In August 2016, Property Owners filed the instant action
against Akron, Lebo Holdings, LLC, and Mr. Nemer. Count one
reiterated many of the alleged procedural defects noted in
the administrative appeal and the 2015 complaint.
Additionally, the instant complaint included an assertion
that Akron Codified Ordinance 153.470 "does not give
Defendant City of Akron the authority to create a public
alley over private property that is zoned single family
residential." In the prayer for relief with respect to
count one, Property Owners demanded a declaratory judgment
that the conditional use ordinance was "void as a matter
of law to the extent that it creates an alley over
residential parcels, based on procedural error and other
violations of law; and that the ordinance to the extent it
unlawfully creates an alley over residential parcels be
stricken from the Code of Ordinances for the City of
Count two stated that Akron, Mr. Nemer, and Lebo Holdings,
LLC "intend to create a public alley or road on the
residential parcels and have failed to follow the procedures
and comply with the notice requirements under Ohio R.C.
[723.09 and 723.10] respectively." In the prayer for
relief addressing count two, the Property Owners demanded
that "Defendants, Lebo Holdings, LLC and Defendant
Nemer, their agents, servants, employees, and all persons in
active concert and participation with the Defendants, be
permanently enjoined from proceeding with any further use of
the proposed alley until there has been procedural compliance
with Ohio R.C.  723.09, 273.10 and 723.11 and be enjoined
from any further action that is contrary to the ordinances of
the City of Akron and the law of the State of Ohio."
Finally, count three of the instant complaint asserted that
Lebo Holdings, LLC and Mr. Nemer failed to comply with some
of the conditions outlined in Ordinance No. 186-2013. In
their prayer for relief for count three, Property Owners
maintained they were entitled to injunctive relief
"compelling Defendants Lebo Holdings, LLC and Defendant
Nemer to complete the work proposed under Akron City
Ordinance 186-2013 in a manner consistent with the drawings
and site plans approved by the City of Akron as well as an
order compelling the Defendant the City of Akron to enforce
the conditions of the conditional use application that it
approved under Akron City Ordinance 186-2013."
Akron filed an answer wherein it raised several defenses,
including res judicata. Thereafter, Lebo Holdings, LLC and
Mr. Nemer also answered the complaint and included res
judicata among their defenses. Akron filed a motion to
dismiss or, alternatively, for summary judgment. Therein,
Akron argued that Property Owners' complaint failed to
state a claim upon which relief can be granted, the claims
were barred by the statute of limitations and res judicata,
and the claims were moot. Lebo Holdings, LLC and Mr. Nemer
filed a similar motion in which they made similar arguments
and also joined in ...