[Cite as Biesiada v. N. Royalton Mayor, 2024-Ohio-965.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
EDWARD BIESIADA, :
Plaintiff-Appellant, : No. 112840 v. :
CITY OF NORTH ROYALTON MAYOR, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 14, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-975442
Appearances:
Dworken & Bernstein Co., L.P.A. and Erik L. Walter, for appellant.
Thomas A. Kelly and Donna M. Vozar, for appellees.
MARY EILEEN KILBANE, P.J.:
Plaintiff-appellant Edward Biesiada (“Biesiada”) appeals from the
trial court’s order granting defendants-appellees the North Royalton Board of
Zoning Appeals (“the Board”) and the City of North Royalton Mayor’s (collectively, “defendants” or “appellees”) motion to dismiss. For the reasons that follow, we
affirm the judgment of the lower court.
Factual and Procedural History
This case involves an administrative appeal from a zoning decision
made by the Board. On October 14, 2022, Biesiada’s neighbor, Penny Kurowski
(“Kurowski”), applied for a permit to build a fence on her property in North
Royalton, Ohio. On December 14, 2022, Kurowski applied for a zoning variance
related to the fence. Specifically, Kurowski requested a variance from North
Royalton Code of Ordinances 1467.05(d)(1)(A)(5) to allow for the proposed fence to
extend to the front wall line of her home, as opposed to being set back five feet from
the front wall line of the residence as required by the ordinance.
On January 19, 2023, the Board heard Kurowski’s request. Kurowski
explained that she wanted to replace her existing chain-link fence with a wooden
fence and complying with the set-back requirement would mean that the fence
would be behind a door she uses to let her dogs out and therefore impractical.
Kurowski also explained that due to the location of the door in relation to a generator
and a gas line, it would be impossible to move the door to be behind a properly set-
back fence. Biesiada spoke in opposition to the variance, submitted exhibits, and
asked that the variance be conditioned upon a survey of Kurowski’s property.
Specifically, Biesiada referred to several alleged issues on the Kurowski’s property,
including unpermitted outbuildings and an existing fence having been erected over
the Kurowski’s property line. The Board chair ultimately determined that Biesiada failed to provide evidence to support his assertions. The Board granted Kurowski’s
request and issued findings of fact, applying the conditions for practical difficulties
and the factors set forth in the North Royalton Code of Ordinances 1264.08(e)(1).
On February 17, 2023, Biesiada filed an administrative appeal of this
decision under Chapter 2506 of the Revised Code.
On April 11, 2023, defendants filed a motion to dismiss, arguing that
Biesiada’s appeal was moot because he had failed to obtain a stay of the Board’s
decision or an injunction to halt construction of Kurowski’s fence, and the
administrative appeal was, therefore, moot. Moreover, according to the motion to
dismiss, the fence was significantly completed around February 28, 2023, shortly
after Biesiada filed his administrative appeal. An affidavit from David Smerek, the
Building Commissioner for the North Royalton, was attached to the motion to
dismiss.
On May 9, 2023, Biesiada filed a brief in opposition to defendants’
motion to dismiss. On May 16, 2023, defendants filed a reply brief in support of
their motion to dismiss.
On May 17, 2023, the trial court granted the defendants’ motion to
dismiss. The court found that Biesiada’s administrative appeal was moot because
he failed to obtain a stay of the decision before construction on the fence
commenced. Specifically, the court found
Biesiada failed to seek a stay of the Board’s decision granting the variance. This left Kurowski free to proceed with installation of the fence as this appeal did not act as an automatic stay of the Board’s decision. The appeal is moot as a reversal of the Board’s decision cannot affect the matter at issue. Further, the Court finds that neither exception to the mootness doctrine applies to the facts herein because there are no issues capable of repetition, yet evading review, and the issue before the Board, whether Kurowski was entitled to a variance, does not qualify as an issue of “public or general interest.”
Biesiada filed a timely notice of appeal from the trial court’s dismissal
of his administrative appeal and raises a single assignment of error for our review:
The trial court’s decision to grant Appellees’ motion to dismiss was in error because the court went outside the scope of the appeal.
Legal Analysis
As an initial matter, we note that in his opening brief, Biesiada refers
to the standard of review for a dismissal pursuant to Civ.R. 12(B)(6) for failure to
state a claim upon which relief may be granted. Civ.R. 12(B)(6) is inapplicable to
the instant matter; neither the motion to dismiss nor the trial court’s subsequent
dismissal order referred to Civ.R. 12(B)(6) or to Biesiada’s purported failure to state
a claim upon which relief may be granted. A judgment dismissing a complaint as
moot means the trial court has declined to exercise jurisdiction over the matter, and
it necessarily follows that such a dismissal does not reach the issue of whether the
complaint failed to state a claim upon which relief can be granted. Tavenner v.
Pittsfield Twp., 9th Dist. Lorain No. 22CA011831, 2022-Ohio-4444, ¶ 9, citing
Brown v. Dayton, 2d Dist. Montgomery No. 24900, 2012-Ohio-3493, ¶ 9. Further,
while this case does not involve a Civ.R. 12(B)(6) motion, any reliance by the trial
court on extrinsic evidence was not inappropriate, because “‘[a]n event that causes
a case to be moot may be proved by extrinsic evidence outside the record.’” Id., quoting Pewitt v. Lorain Corr. Inst., 64 Ohio St.3d 470, 472, 597 N.E.2d 92 (1992).
Therefore, we decline to consider Biesiada’s arguments regarding Civ.R. 12(B)(6).
Instead, we will address the issue of mootness.
“‘Because the issue of mootness is a question of law, we review the
common pleas court’s decision de novo.’” Rieg v. Seville, 9th Dist. Medina No.
23CA0023-M, 2023-Ohio-4581, ¶ 7, quoting Meyerson v. Fairlawn, 9th Dist.
Summit Nos. 29603, 29788, 29794, and 29797, 2022-Ohio-2255, ¶ 4. “‘Using a de
novo standard, this Court conducts an independent review of the trial court’s
decision, giving no deference to the trial court’s determination.’” Id., quoting
Jacobson v. Akron Children’s Hosp., 2023-Ohio-2225, 220 N.E.3d 953, ¶ 53 (9th
Dist.).
A common pleas court’s “jurisdiction is limited to ‘justiciable
matters.’” Graham v. Lakewood, 2018-Ohio-1850, 113 N.E.3d 44, ¶ 23 (8th Dist.),
quoting Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972). If a
justiciable matter becomes moot, the court of common pleas no longer has
jurisdiction to hear the case. Id., citing Hirsch v. TRW, Inc., 8th Dist. Cuyahoga No.
83204, 2004-Ohio-1125, ¶ 11.
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[Cite as Biesiada v. N. Royalton Mayor, 2024-Ohio-965.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
EDWARD BIESIADA, :
Plaintiff-Appellant, : No. 112840 v. :
CITY OF NORTH ROYALTON MAYOR, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 14, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-975442
Appearances:
Dworken & Bernstein Co., L.P.A. and Erik L. Walter, for appellant.
Thomas A. Kelly and Donna M. Vozar, for appellees.
MARY EILEEN KILBANE, P.J.:
Plaintiff-appellant Edward Biesiada (“Biesiada”) appeals from the
trial court’s order granting defendants-appellees the North Royalton Board of
Zoning Appeals (“the Board”) and the City of North Royalton Mayor’s (collectively, “defendants” or “appellees”) motion to dismiss. For the reasons that follow, we
affirm the judgment of the lower court.
Factual and Procedural History
This case involves an administrative appeal from a zoning decision
made by the Board. On October 14, 2022, Biesiada’s neighbor, Penny Kurowski
(“Kurowski”), applied for a permit to build a fence on her property in North
Royalton, Ohio. On December 14, 2022, Kurowski applied for a zoning variance
related to the fence. Specifically, Kurowski requested a variance from North
Royalton Code of Ordinances 1467.05(d)(1)(A)(5) to allow for the proposed fence to
extend to the front wall line of her home, as opposed to being set back five feet from
the front wall line of the residence as required by the ordinance.
On January 19, 2023, the Board heard Kurowski’s request. Kurowski
explained that she wanted to replace her existing chain-link fence with a wooden
fence and complying with the set-back requirement would mean that the fence
would be behind a door she uses to let her dogs out and therefore impractical.
Kurowski also explained that due to the location of the door in relation to a generator
and a gas line, it would be impossible to move the door to be behind a properly set-
back fence. Biesiada spoke in opposition to the variance, submitted exhibits, and
asked that the variance be conditioned upon a survey of Kurowski’s property.
Specifically, Biesiada referred to several alleged issues on the Kurowski’s property,
including unpermitted outbuildings and an existing fence having been erected over
the Kurowski’s property line. The Board chair ultimately determined that Biesiada failed to provide evidence to support his assertions. The Board granted Kurowski’s
request and issued findings of fact, applying the conditions for practical difficulties
and the factors set forth in the North Royalton Code of Ordinances 1264.08(e)(1).
On February 17, 2023, Biesiada filed an administrative appeal of this
decision under Chapter 2506 of the Revised Code.
On April 11, 2023, defendants filed a motion to dismiss, arguing that
Biesiada’s appeal was moot because he had failed to obtain a stay of the Board’s
decision or an injunction to halt construction of Kurowski’s fence, and the
administrative appeal was, therefore, moot. Moreover, according to the motion to
dismiss, the fence was significantly completed around February 28, 2023, shortly
after Biesiada filed his administrative appeal. An affidavit from David Smerek, the
Building Commissioner for the North Royalton, was attached to the motion to
dismiss.
On May 9, 2023, Biesiada filed a brief in opposition to defendants’
motion to dismiss. On May 16, 2023, defendants filed a reply brief in support of
their motion to dismiss.
On May 17, 2023, the trial court granted the defendants’ motion to
dismiss. The court found that Biesiada’s administrative appeal was moot because
he failed to obtain a stay of the decision before construction on the fence
commenced. Specifically, the court found
Biesiada failed to seek a stay of the Board’s decision granting the variance. This left Kurowski free to proceed with installation of the fence as this appeal did not act as an automatic stay of the Board’s decision. The appeal is moot as a reversal of the Board’s decision cannot affect the matter at issue. Further, the Court finds that neither exception to the mootness doctrine applies to the facts herein because there are no issues capable of repetition, yet evading review, and the issue before the Board, whether Kurowski was entitled to a variance, does not qualify as an issue of “public or general interest.”
Biesiada filed a timely notice of appeal from the trial court’s dismissal
of his administrative appeal and raises a single assignment of error for our review:
The trial court’s decision to grant Appellees’ motion to dismiss was in error because the court went outside the scope of the appeal.
Legal Analysis
As an initial matter, we note that in his opening brief, Biesiada refers
to the standard of review for a dismissal pursuant to Civ.R. 12(B)(6) for failure to
state a claim upon which relief may be granted. Civ.R. 12(B)(6) is inapplicable to
the instant matter; neither the motion to dismiss nor the trial court’s subsequent
dismissal order referred to Civ.R. 12(B)(6) or to Biesiada’s purported failure to state
a claim upon which relief may be granted. A judgment dismissing a complaint as
moot means the trial court has declined to exercise jurisdiction over the matter, and
it necessarily follows that such a dismissal does not reach the issue of whether the
complaint failed to state a claim upon which relief can be granted. Tavenner v.
Pittsfield Twp., 9th Dist. Lorain No. 22CA011831, 2022-Ohio-4444, ¶ 9, citing
Brown v. Dayton, 2d Dist. Montgomery No. 24900, 2012-Ohio-3493, ¶ 9. Further,
while this case does not involve a Civ.R. 12(B)(6) motion, any reliance by the trial
court on extrinsic evidence was not inappropriate, because “‘[a]n event that causes
a case to be moot may be proved by extrinsic evidence outside the record.’” Id., quoting Pewitt v. Lorain Corr. Inst., 64 Ohio St.3d 470, 472, 597 N.E.2d 92 (1992).
Therefore, we decline to consider Biesiada’s arguments regarding Civ.R. 12(B)(6).
Instead, we will address the issue of mootness.
“‘Because the issue of mootness is a question of law, we review the
common pleas court’s decision de novo.’” Rieg v. Seville, 9th Dist. Medina No.
23CA0023-M, 2023-Ohio-4581, ¶ 7, quoting Meyerson v. Fairlawn, 9th Dist.
Summit Nos. 29603, 29788, 29794, and 29797, 2022-Ohio-2255, ¶ 4. “‘Using a de
novo standard, this Court conducts an independent review of the trial court’s
decision, giving no deference to the trial court’s determination.’” Id., quoting
Jacobson v. Akron Children’s Hosp., 2023-Ohio-2225, 220 N.E.3d 953, ¶ 53 (9th
Dist.).
A common pleas court’s “jurisdiction is limited to ‘justiciable
matters.’” Graham v. Lakewood, 2018-Ohio-1850, 113 N.E.3d 44, ¶ 23 (8th Dist.),
quoting Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972). If a
justiciable matter becomes moot, the court of common pleas no longer has
jurisdiction to hear the case. Id., citing Hirsch v. TRW, Inc., 8th Dist. Cuyahoga No.
83204, 2004-Ohio-1125, ¶ 11.
“It is well established that in cases involving construction, if a party
fails to obtain a stay of execution before construction commences, the case is moot.”
Gajewski v. Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 91101, 2008-Ohio-5270,
¶ 18, citing Pinkney v. Southwick Invests., LLC, 8th Dist. Cuyahoga Nos. 85074 and
85075, 2005-Ohio-4167 (residents sought to prevent land development for certain use; trial court found there were no restrictions on the use of the land; residents
appealed, but did not seek a stay; construction was substantially complete by the
time the case was heard; appeal moot), and Walouke v. Mentor Bd. of Bldg. &
Zoning Appeals, 11th Dist. Lake County No. 10-136, 1984 Ohio App. LEXIS 12133
(Dec. 28, 1984) (neighbors objected to landowner building a garage; zoning board
granted variance, neighbors appealed, but did not request a stay; garage was built
during pendency of appeal; moot). The mootness doctrine contains two recognized
exceptions: cases involving issues capable of repetition, yet evading review, and
cases involving a matter of great public or general interest. Gajewski at ¶ 22.
Biesiada argues that the doctrine does not apply in this way because
this case does not involve construction of a building. We disagree. Further, while
Biesiada argues that the case is not moot because the fence could be torn down, he
does not dispute that he failed to obtain a stay or seek an injunction. Nor does
Biesiada offer any basis for finding this case to be an exception to the mootness
doctrine. Based on our review of the record, this case does not involve an issue
capable of repetition, yet evading review, nor does it involve a matter of great public
or general interest.
The common pleas court did not err by dismissing Biesiada’s
administrative appeal on mootness grounds. Accordingly, we overrule the
assignment of error and affirm the lower court’s judgment.
Judgment affirmed.
It is ordered that appellees recover from appellant the costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
MICHAEL JOHN RYAN, J., and SEAN C. GALLAGHER, J., CONCUR