FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV-2012-05-2561
M. MEDVICK, Attorney at Law, for Appellant.
BENJAMIN G. CHOJNACKI, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
J. CARR, PRESIDING JUDGE
Appellant, Eric Schell, appeals the judgment of the Summit
County Court of Common Pleas. This Court affirms.
In 2012, the Village of Lakemore filed a complaint against
Schell alleging violations of the Village's zoning
ordinances and seeking to enjoin Schell from completing the
construction of a garage on his property. Schell filed an
answer denying the allegations in the complaint and asserting
multiple affirmative defenses.
On July 24, 2013, the trial court issued a journal entry
indicating that the parties had reached a settlement
agreement. The trial court specified that the terms of the
settlement agreement had been read into the record at a
settlement hearing. Pursuant to the agreement, Schell would
be permitted to construct a 500 square foot garage on his
property as long as he filed a proper application for a
zoning permit with the Village. Once he obtained a permit,
Schell was required to make continual and reasonable progress
toward constructing the garage within one year. If Schell
failed to make continual and reasonable progress during that
period, he would be required to remove from his property the
portion of the garage that had already been constructed. The
parties further agreed that the complaint would be dismissed
with prejudice and that Schell would dismiss an
administrative appeal that he had filed against the Village.
In its journal entry, the trial court stated that it would
retain continuing jurisdiction only as necessary to enforce
the terms of the settlement agreement.
Roughly four years later, the Village filed a motion to show
cause as to why Schell should not be held in contempt for
violating the terms of the settlement agreement.
Specifically, the Village alleged that Schell had not made
reasonable progress toward constructing the building and that
he had "refused to remove the structure despite the fact
that well over one year ha[d] passed."
The matter proceeded to a hearing before a magistrate where
both parties presented evidence. The magistrate subsequently
issued a decision finding Schell in indirect civil contempt
for failing to abide by the terms of the settlement
agreement. The magistrate set forth a number of purge
conditions. The magistrate found that while there had been a
delay in ruling on Schell's application for a permit on
the part of the Village, the delay did not constitute a
material breach of the settlement agreement. The magistrate
further found that once the permit was issued, Schell failed
to take any reasonable steps toward completing the garage and
thus violated the terms of the settlement. Both Schell and
the Village filed objections to the magistrate's
decision. On May 21, 2018, the trial court issued an order
independently adopting the magistrate's decision. The
trial court discussed the parties' objections but noted
that it considered the magistrate's decision as though no
objections were filed because the parties had failed to
comply with a number of filing deadlines. In adopting the
magistrate's decision, the trial court made several
modifications to the purge conditions.
On appeal, Schell raises one assignment of error.
TRIAL COURT ERRED IN DETERMINING THAT MR. SCHELL'S
OBJECTIONS TO THE MAGISTRATE'S ...