Concrete, Inc. v. Willowick

2020 Ohio 71

• Court: Ohio Court of Appeals
• Decided: January 13, 2020
• Docket: 2019-L-091
• Status: Published

Opinion

[Cite as Concrete, Inc. v. Willowick, 2020-Ohio-71.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

CONCRETE, INC., : MEMORANDUM OPINION

Plaintiff-Appellant, : CASE NO. 2019-L-091 - vs - :

CITY OF WILLOWICK, :

Defendant-Appellee. :

Civil Appeal from the Lake County Court of Common Pleas, Case No. 2018 CV 001246.

Judgment: Appeal dismissed.

John R. Christie, Lewis Brisbois Bisgaard & Smith, 1375 East Ninth Street, Suite 2250, Cleveland, OH 44114 (For Plaintiff-Appellant).

Michael C. Lucas and Stephanie E. Landgraf, Wiles and Richards, 37265 Euclid Avenue, Willoughby, OH 44094 (For Defendant-Appellee).

MATT LYNCH, J.

{¶1} 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.

{¶2} On December 18, 2019, this court remanded the case for the trial court to

address a similar Motion pending in its court.

{¶3} On December 19, 2019, the trial court denied Concrete’s Motion to Have

Property Returned, Pending Appeal. The court ruled:

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.

{¶4} 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

2 damages, is incorrect.

{¶5} 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”).

{¶6} In the present case, Concrete has failed to comply with R.C. 1923.14 and

the appeal has become moot.

{¶7} Accordingly, Concrete’s Motion to Have Property Returned, Pending

Appeal is denied.

{¶8} It is the further order of this court that the present appeal is, hereby,

dismissed as moot.

TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.