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Village of Lakemore v. Schell

Court of Appeals of Ohio, Ninth District, Summit

December 11, 2019

VILLAGE OF LAKEMORE Appellee
v.
ERIC A. SCHELL Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2012-05-2561

          ALAN M. MEDVICK, Attorney at Law, for Appellant.

          BENJAMIN G. CHOJNACKI, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR, PRESIDING JUDGE

         {¶1} Appellant, Eric Schell, appeals the judgment of the Summit County Court of Common Pleas. This Court affirms.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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."

         {¶5} 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.

         {¶6} On appeal, Schell raises one assignment of error.

         II.

         ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED IN DETERMINING THAT MR. SCHELL'S OBJECTIONS TO THE MAGISTRATE'S ...


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