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Denefield v. Nemer

Court of Appeals of Ohio, Ninth District, Summit

August 14, 2019

BRENDA DENEFIELD, et al. Appellants
v.
MANUEL NEMER, et al. Appellees

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2016-08-3700

          JEROME T. LINNEN, JR., Attorney at Law, for Appellants.

          CLAIR E. DICKINSON, Attorney at Law, for Appellees.

          JOHN R. YORK, Attorney at Law, for Appellees.

          JAMES M. HENSHAW, Attorney at Law, for Appellees. TANIA T. NEMER, Attorney at Law, for Appellees.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR JUDGE.

         {¶1} 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.

         I.

         {¶2} 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 parcels.

         {¶3} 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 development.

         {¶4} 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 Planning Commission.

         {¶5} 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 subsequently consolidated.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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 Akron."

         {¶9} 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."

         {¶10} 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."

         {¶11} 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 ...


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