Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Lake County Court of Common Pleas, Case No.
2018 CV 001246.
R. Christie, Lewis Brisbois Bisgaard & Smith, (For
Michael C. Lucas and Stephanie E. Landgraf, Wiles and
Richards, (For Defendant-Appellee).
Plaintiff-appellant, Concrete, Inc., has appealed from the
July 31, 2019 Judgment Entry of the Lake County Court of
Common Pleas granting summary judgment in favor of
defendant-appellee, the City of Willowick, on its claim for
restitution of the leasehold premises which are the subject
of the underlying action. Also pending before this court is
Concrete's Motion to Have Property Returned, Pending
Appeal, filed on September 11, 2019. Willowick filed a brief
in opposition on September 25, 2019. Concrete filed a Reply
Brief in Support on October 3, 2019. For the following
reasons, Concrete's Motion to Have Property Returned is
denied and the appeal is dismissed as moot.
On December 18, 2019, this court remanded the case for the
trial court to address a similar Motion pending in its court.
On December 19, 2019, the trial court denied Concrete's
Motion to Have Property Returned, Pending Appeal. The court
It is the opinion of this Court that Plaintiff is not
entitled to an "automatic delay" of the Writ of
Restitution based solely on having filed a Notice of Appeal
contemporaneous to the Writ of Restitution. Clearly, R.C.
§1923.14(A) provides that if an appeal is filed and a
stay of execution is obtained and bond is posted where
necessary, a delay of execution is appropriate. In this case,
the Writ of Restitution was executed on September 6, 2019,
and Plaintiff's Motion to Have Property Returned Pending
Appeal was filed five days thereafter on September 11, 2019.
Inasmuch as Defendant already recovered possession of the
premises prior to Plaintiff even seeking a stay, the issue
was rendered moot. See Blank v. Allenbaugh,
2018-Ohio-2582 and Knop v. Davet, 2017-Ohio-1416.
We agree with the trial court's conclusion that Concrete
has not complied with R.C. 1923.14(A) and, therefore, is not
entitled to a stay. As noted in our prior Entry, Concrete did
not properly ask for a stay of proceedings but sought
restitution of the property based on the unsupported claim
that the filing of a Notice of Appeal "should have
resulted in the delay of proceedings to remove Concrete, Inc.
from the premises." On the contrary, "[u]ntil and
unless a supersedeas bond is posted the trial court retains
jurisdiction over its judgments as well as proceedings in aid
of the same," i.e., the ability to issue writs of
restitution. State ex rel. Klein v. Chorpening, 6
Ohio St.3d 3, 4, 450 N.E.2d 1161 (1983). Concrete's
position that "it would be premature to require a bond
or even a stay" until the trial court has decided all
the issues before it, including damages, is incorrect.
When a writ of restitution has been executed and the premises
restored an appeal from the judgment granting restitution is
rendered moot. "The only method by which a defendant
appealing a judgment of forcible entry and detainer may
prevent the cause from becoming moot is stated in R.C.
1923.14." Hmeidan v. Muheisen, 2017-Ohio-7670,
97 N.E.3d 881, ¶ 24 (5th Dist.). "If the defendant
fails to avail himself of this remedy, all issues relating to
the action are rendered moot by his eviction from the
premises." Id; Blank v. Allenbaugh, 11th Dist.
Ashtabula No. 2018-A-0022, 2018-Ohio-2582 ¶ 7
("when the tenant has vacated the premises and the
landlord regains possession of the leased premises, the
merits of an action in forcible entry and detainer are
rendered moot because no further type of relief can be
granted in favor of the landowner").
In the present case, Concrete has failed to comply with R.C.
1923.14 and the appeal has become moot.
Accordingly, Concrete's Motion to Have Property Returned,
Pending Appeal is denied.
It is the further order of this court that the present appeal