[Cite as State ex rel. Right to Life Action Coalition of Ohio v. Capital Care of Toledo, L.L.C., 2024-Ohio-609.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State ex rel. Right to Life Action Court of Appeals No. L-23-1093 Coalition of Ohio, et al. Trial Court No. CI0202101942 Appellants
v.
Capital Care of Toledo, LLC, et al. DECISION AND JUDGMENT
Appellees Decided: February 16, 2024
*****
Eugene F. Canestraro, for appellants.
Peter Pattakos, B. Jessie Hill, and Freda J. Levenson, for appellees.
OSOWIK, J.
{¶ 1} Appellants, Right to Life Action Coalition of Ohio, Greater Toledo Area
Right to Life, and Jeffrey Barefoot (collectively, “Right to Life”), appeal from the
judgment of the Lucas County Court of Common Pleas dismissing their action against
appellees, Capital Care of Toledo, LLC, D/B/A Capital Care of Toledo (“Capital Care”), and Amelia Stower, on grounds of mootness. For the reasons that follow, the trial court’s
judgment is affirmed.
Statement of the Case and the Facts
{¶ 2} On March 3, 2021, Right to Life filed a complaint in Wood County, Ohio,
against Capital Care, which operated a women’s health clinic located at 1160 W.
Sylvania Avenue, Toledo, Lucas County, Ohio, and Amelia Stower, who was the clinic’s
owner. The complaint alleged that because neither Capital Care nor Stower held a
medical license, neither was permitted by Ohio law to advertise the provision of abortion-
related services by the clinic’s non-owner physician, and that, in doing so, appellees were
practicing medicine without a license and were engaged in the unauthorized practice of
medicine. Right to Life sought an injunction to prevent Capital Care from advertising or
soliciting prospective patients and from providing medical abortions or related services.
Also included in the pleading was a request for declaratory relief.
{¶ 3} Appellees filed a motion to transfer venue to Lucas County, and on April 23,
2021, the trial court granted the motion.
{¶ 4} Following the transfer to Lucas County, appellees filed a motion to dismiss.
On August 31, 2021, the trial court granted the motion, finding that appellants lacked
standing under R.C. 4731.341(B), because they failed to satisfy a 30-day notice
requirement that is set forth in the statute. Appellants appealed to this court, and we
2. reversed the trial court’s decision based on our determination that the 30-day notice
requirement is not, in fact, a requirement for standing.
{¶ 5} On remand, appellants filed an amended complaint. On December 2, 2022,
appellees moved to dismiss the complaint on grounds that the complaint had become
moot because appellees no longer operated or owned a women’s health clinic. Attached
to the motion was an affidavit by Stower, wherein she testified: “As of January of 2022,
Capital Care of Toledo has not operated or existed, and since then I have not been and
currently am not the owner or manager of Capital Care or any women’s health clinic.”
{¶ 6} In a judgment entry and opinion dated March 23, 2023, the trial court
granted the motion to dismiss on mootness grounds, finding that that there was no longer
a live case or controversy and that appellants had failed to demonstrate that appellees’
actions fell under the exception for controversies that are “capable of repletion yet
evading review.” The court explained:
The state of Ohio records indicate, as do the Plaintiffs, that Capital Care of Toledo is not in operation at 1160 W. Sylvania Ave. and that Amelia Stower is not listed as the operator of the new entity, rather Dr. David Burkons, M.D. is the listed operator. Plaintiffs have also conceded that Defendant Capital Care of Toledo has removed its website. Amelia Stower, through affidavit, also averred that as of January of 2022, Capital Care of Toledo has not operated or existed and she has not been and is currently not the owner or manager of Capital Care or any other women’s health care clinics.
{¶ 7} It is from this judgment entry that appellants presently appeal.
3. Assignments of Error
{¶ 8} Appellants assert the following assignments of error on appeal:
I. The Trial Court ignored the plain language of the enabling
statute {R.C. 4731.341} regarding Plaintiff’s/Appellant’s
KNOWLEDGE of the then Existing Activity as the key
elements necessary for JURISDICTION. In other words,
‘Mootness’ is barred once these two requirements are met,
and Defendants cannot manufacture their own mootness. As
such, the trial court erred in dismissing the action.
II. As within the first Appeal [‘Capital Care #1, Appellate
Case #21-1177] this Sixth District Court of Appeals,
recognized within its unanimous Decision concerning
‘standing’ that the [Ohio] legislative intent and the
unambiguous language of the statute would control. It should
do so again and correct the trial court’s misapplication of the
“Mootness Doctrine” ruling the unambiguous statutory
language creates Jurisdiction regardless of
Defendant’s/Appellee’s post complaint cessation of the
improper or illegal activity […offending parties cannot create
its own ‘mootness’ and thwart jurisdiction…].
4. III. Even IF the timeliness requirement of 4731.34 was not
the controlling issue and the case was moot for voluntary
cessation, the exception for “great public interest” could not
be more evident and is controlling. The Ohio Legislature
believes cases involving the ‘unlicensed practice of medicine’
are of such extraordinary interest that they created an
enabling statute for private persons to bring the action Ex Rel.
As such, the trial court erred in dismissing the action.
Analysis
{¶ 9} Appellants’ first and second assignments of error set forth overlapping
arguments relating to mootness and the applicability of the mootness doctrine to the facts
of this case. As such, they will be considered together in this analysis.
Appellants’ complaint was properly dismissed as moot.
{¶ 10} “Under the mootness doctrine, American courts will not decide cases in
which there is no longer an actual legal controversy between the parties.” Cyran v.
Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, 97 N.E.3d 487, ¶ 9, citing In re A.G., 139
Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37. “If the controversy has come
and gone, then [the] court must dismiss the case as moot.” M.R. v. Niesen, 167 Ohio St.3d
404, 2022-Ohio-1130, 193 N.E.3d 548, ¶ 7.
5. {¶ 11} “Subject-matter jurisdiction is the power of a court to entertain and
adjudicate a particular class of cases.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75,
2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19, citing Morrison v. Steiner, 32 Ohio St.2d 86, 87,
290 N.E.2d 841 (1972). “Mootness is a jurisdictional question because the Court ‘is not
empowered to decide moot questions or abstract propositions.’” Napier v. Ickes, 2019-
Ohio-2774, 140 N.E.3d 137, ¶ 85 (9th Dist.), quoting State v. Feister, 5th Dist.
Tuscarawas No. 2018 AP 01 0005, 2018-Ohio-2336, ¶ 18, quoting United States v.
Alaska S.S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 64 L.Ed. 808 (1920); see also Ohio
Constitution, Article IV, Section 1 (limiting courts’ authority to the “judicial power”);
Ohio Constitution, Article IV, Section 4(B) (courts of common pleas “shall have such
original jurisdiction over all justiciable matters * * * as may be provided by law”).
“Courts of common pleas’ jurisdiction is limited to ‘justiciable matters.’ * * * ‘If what
were once justiciable matters have been resolved to the point where they become moot,
the courts of common pleas no longer have subject matter jurisdiction to hear the case.’”
Graham v. City of Lakewood, 2018-Ohio-1850, 113 N.E.3d 44, ¶ 23 (8th Dist.), quoting
Hirsch v. TRW, Inc., 8th Dist. Cuyahoga No. 83204, 2004-Ohio-1125, ¶ 11; Park Lane
Apts. v. Parks, 6th Dist. Lucas No. L-20-1208, 2021-Ohio-3510, ¶ 2 (“[m]ootness is an
issue of subject-matter jurisdiction”). “[A] declaratory judgment action must, like any
action, satisfy a threshold requirement of justiciability.” Waldman v. Pitcher, 2016-Ohio-
5909, 70 N.E.3d 1025, ¶ 20 (1st Dist.). “Dismissals on the basis of mootness present
6. questions of law, which we review de novo.” Heartland of Portsmouth, Ohio, LLC v.
McHugh Fuller Law Group, PLLC, 2017-Ohio-666, 85 N.E.3d 191, ¶ 15 (4th Dist.).
{¶ 12} In this case -- in which appellants seek only declaratory and injunctive
relief related to appellees operation of the Capital Care clinic -- we find that because
Capital Care ceased its operation and existence at 1160 W. Sylvania Avenue, and because
Stower is no longer the owner or manager of Capital Care or any other women’s health
clinic, there has been a change in circumstances such that no actual legal controversy
exists between the parties.
{¶ 13} On appeal, appellants argue that the trial court erred in dismissing the case
as moot, because Capital Care and Stower voluntarily ceased the allegedly wrongful
conduct and did not demonstrate that such conduct could not reasonably be expected to
recur. See Knox v. Service Employees Intern. Union, Local 1000, 567 U.S. 298, 307, 132
S.Ct. 2277, 183 L.Ed.2d 281 (2012) (“The voluntary cessation of challenged conduct
does not ordinarily render a case moot because a dismissal for mootness would permit a
resumption of the challenged conduct as soon as the case is dismissed.”).
{¶ 14} Although we agree that Capital Care and Stower voluntarily ceased the
allegedly wrongful behavior, we disagree that they failed to demonstrate that such
conduct could not reasonably be expected to recur. Trial court hearing testimony by
Stower indicates that she relinquished ownership of the clinic, not in response to the
lawsuit, but rather so that she could go back to school and “have a life again.” See Hoerig
7. v. Bowling Green State University, 2023-Ohio-3189, 224 N.E.3d 567, ¶ 16-17 (6th Dist.)
(where rescission of mask mandate policy was found to be for reasons other than in
response to lawsuit, defendant was found to have demonstrated that the allegedly
wrongful behavior could not reasonably be expected to recur).
{¶ 15} Appellants argue, however, that Stower continues to work for the Toledo
Women’s Center, which is the new entity operating in the old Capital Care location.
Describing her position, Stower acknowledges that although she is no longer the “owner”
of the business, she is “still an integral part of it as front desk receptionist and
management.” Appellants suggest that Stower’s current employment at the clinic
constitutes “highly relevant evidence which impacts * * * the not-remote possibility that
Stower is in a position as an integral part of the management team to still be unlawfully
practicing medicine.” That a “possibility” exists that Stower could resume ownership and
operation of the clinic is distinguishable from a reasonable likelihood that it will. An
employee does not “operate” a business in the sense that an owner does, and it is as an
owner that Stower was named in the complaint. The mere fact that Stower is an employee
does not give rise to any particular likelihood that she will resume ownership and
operation of the clinic.
{¶ 16} In a further attempt to establish that Stower will “repeat her operations”,
appellants assert the existence of an “affiliated” Columbus business, operating under the
name “Your Choice Healthcare.” Specifically, appellants point to advertising materials
8. that promote medical abortion services by both the Capital Care facility located at 1160
W. Sylvania Avenue and the Your Choice Healthcare facility, which is located at 6721
Karl Road, in Columbus, Ohio. Absent from appellants’ showing, however, is any
connection between Stower and Your Choice Healthcare. Also lacking is evidence that
Your Choice Healthcare has ownership issues such as those complained of by appellants
-- let alone any that are ascribable, or otherwise related, to Capital Care. Without more,
mere proof of the existence of the “affiliated” Columbus business by way of advertising
materials does nothing to bolster appellants’ argument that appellees are imminently
prepared to provide abortion services.
{¶ 17} Finally, appellants claim they were prejudiced by the trial court’s mistaken
claim --- made at one point in the March 23, 2023 opinion -- that Stower, through her
affidavit, had stated that “she is not, nor will be operating a women’s health care clinic.”
Appellants correctly point out that nowhere in the affidavit did Stower assert that she
would not operate a women’s health care clinic in the future. Although an error, the trial
court’s mistaken claim does nothing to alter our analysis herein.
{¶ 18} For the foregoing reasons, we do not find that the trial court erred in
dismissing the case as moot.
The exception to the mootness doctrine for issues that are capable of repetition yet evading review does not apply in this case.
{¶ 19} An exception to the mootness doctrine applies for issues that are capable of
repetition yet evading review. Niesen at ¶ 11. “An issue is capable of repetition yet
9. evading review if “‘(1) the challenged action is in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that
the same complaining party will be subjected to the same action again.’” Id., quoting
United States v. Sanchez-Gomez, 584 U.S. 381, 391, 138 S.Ct. 1532, 200 L.Ed.2d 792
(2018). (Additional quotations omitted.) “It is not enough for an issue to be capable of
repetition by some parties; the issue must be capable of repetition between the ‘same’
parties.” Id. at ¶ 12 (Emphasis in original.). Our previous analysis and determination as to
whether appellees’ allegedly wrongful behavior could reasonably be expected to recur
applies equally to the current analysis. In short, it could not. As part of the current
analysis, we add our specific determination that even if the issues were capable of
repetition by some parties, because Capital Care is no longer in existence, there is no
reasonable expectation of repeated actions between all of the parties. See Niesen at ¶ 12
(for the exception to apply, there must have been a reasonable expectation of repeated
actions between petitioner Olthaus and respondent Niesen and respondent White).
Accordingly, we find that the exception to the mootness doctrine for issues that are
capable of repetition yet evading review is inapplicable to this case.
R.C. 4731.341 and R.C 2721 neither void the mootness doctrine nor obviate the constitutional jurisdictional requirement of an actual justiciable controversy.
{¶ 20} Appellants next argue that there can be no mootness when it comes to R.C.
4731.341, the operative statute under which they filed their complaint. R.C. 4731.341
provides in relevant part:
10. (A) The practice of medicine in all of its branches or the
treatment of human ailments without the use of drugs or
medicines and without operative surgery by any person not at
that time holding a valid and current license or certificate as
provided by Chapter 4723., 4725., or 4731. of the Revised
Code is hereby declared to be inimical to the public welfare
and to constitute a public nuisance.
(B) The attorney general, the prosecuting attorney of any
county in which the offense was committed or the offender
resides, the state medical board, or any other person having
knowledge of a person who either directly or by complicity is
in violation of division (A) of this section, may * * * in
accord with provisions of the Revised Code governing
injunctions, maintain an action in the name of the state to
enjoin any person from engaging either directly or by
complicity in the unlawful activity by applying for an
injunction in the Franklin county court of common pleas or
any other court of competent jurisdiction.
***
11. Upon the filing of a verified petition in court, the court shall
conduct a hearing on the petition and shall give the same
preference to this proceeding as is given all proceedings
under Chapter 119. of the Revised Code, irrespective of the
position of the proceeding on the calendar of the court.
{¶ 21} In support of their claim that the language of R.C. 4731.341 creates
jurisdiction that precludes mootness, appellants argue simply that R.C. 4731.341
“specifies that the KNOWLEDGEABLE PERSON shall be permitted to seek an ORDER
from the court to prevent the nuisance – which the Ohio legislature has identified as
inimical to public health, from occurring – both on the date of recognition and
thereafter.” (Emphasis in original.) Appellants further argue that the language of the
statute creates jurisdiction “regardless of [appellees’] post complaint cessation of * * *
improper or illegal activity.”
{¶ 22} As indicated above, the Ohio Constitution clearly dictates that the subject
matter jurisdiction of a common pleas court is limited to justiciable cases, which is to say,
cases in which there is an actual legal controversy between adverse parties. As this case is
no longer a justiciable case, our analysis is properly ended here, with the dismissal of
appellants’ complaint.
12. {¶ 23} Even in the absence of this overarching and dispositive constitutional
hurdle, appellants’ argument would still fail, based on the plain language of R.C.
4731.341(B).
“In construing a statute, we begin with legislative intent.” State ex re. Right to Life Action
Coalition of Ohio v. Capital Care of Toledo, LLC, 6th Dist. Lucas No. L-21-1177, 2022-
Ohio-3266, ¶27, citing State ex rel. Clay v. Cuyahoga County Medical Examiner’s Office,
152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 14. (Additional citation omitted.)
“To discern this intent, we first look to the words the legislature used.” Id., citing Clay at
¶ 14. (Additional citation omitted.) “Where there is no ambiguity, we must abide by the
words employed by the General Assembly, * * * and have no cause to apply the rules of
statutory construction.” Clay at ¶ 15, citing State v. Waddell, 71 Ohio St.3d 630, 631, 646
N.E.2d 821 (1985). (Additional citation omitted.). The Ohio general assembly, in the
granting certain parties the ability to maintain an action under R.C. 4731.341(B), employs
no language whatsoever that would suggest an intent to eliminate or override a subject
matter jurisdiction analysis. Because nothing in the language cited by appellants “creates
jurisdiction that precludes mootness,” appellants’ argument to the contrary is properly
dismissed as meritless.
{¶ 24} Citing a separate paragraph of R.C. 4731.341(B), appellants next seek to
persuade us that R.C. 4731.341 requires a trial court to proceed to a hearing whenever a
complaint under the statute is received, regardless of mootness or any other jurisdictional
13. defect. They say that “[s]o important is the filing that the litigation is (statutorily) placed
in a preferential position upon the assigned Court’s docket and a mandatory hearing is
plainly identified.” Elsewhere, appellants claim that a plain reading of R.C. 4731(B)
“requires the Trial Court, upon the filing of a well-pled Verified Complaint, to conduct a
swift hearing, giving preference to this proceeding as is given to all proceedings under
R.C. 119.” (Emphasis in original.) In making these points, appellants claim that “the
proper examination is of the complaining party not the party allegedly violating the law,
which controls whether the action is rendered MOOT.” (Emphasis in original.)
According to appellants, only the timely filing of a complaint is necessary to establish
jurisdiction.
{¶ 25} The asserted origin of this special status for the statute is the reference in
the statute to R.C. 119, by which the court receiving a complaint under R.C. 4731.341
“shall give the same preference to this proceeding as is given all proceedings under
Chapter 119. of the Revised Code, irrespective of the proceeding on the calendar of the
court.” See R.C. 4731.341(B).
{¶ 26} R.C. 119.12(M) merely provides that a court shall conduct a hearing * * *
and shall give preference to all proceedings under sections 119.01 to119.13 of the
Revised Code, over all other civil cases, irrespective of the position of the proceedings on
the calendar of the court.”
14. {¶ 27} Once again, even in the absence of the dispositive constitutional hurdle of
subject matter jurisdiction, appellants’ argument would nevertheless fail, as the language
of the statutes simply do not support appellants’ claim that R.C. 4731.341, empowered by
R.C. 119, requires a hearing, no matter what.
{¶ 28} In this case, a plain reading of the statutes does not indicate any attempt on
the part of the legislature to abrogate the mootness doctrine. To the contrary, both R.C.
4731.341 and R.C. 119.12(M) merely establish the procedure that a court must follow
when considering a cognizable petition for relief.
{¶ 29} Appellants also seek review under R.C. 2721, which governs declaratory
judgments. R.C. 2721, which contains language similar to that set forth in R.C. 4731.341
-- to the extent that it also requires a hearing -- is also subject to a jurisdictional analysis,
including mootness. As with R.C. 119, there is no express or implied elimination of
mootness under this statute. To the contrary, “[t]he Declaratory Judgment Act does not
‘contemplate the rendition of advisory opinions, nor will the court pass upon remote,
incidental or moot questions.’” Loper v. Ohio Adult Parole Authority, 10th Dist. Franklin
No. 00AP-436, 2001 WL 721798, *3 (June 28, 2001), citing Mentor Marinas, Inc. v. City
of Mentor, 11th Dist. Lake No. 10-133, 1984 WL 7262, *1 (Sept. 21, 1984), citing
R.C .2721.02 staff notes. Accordingly, we disagree with appellants’ contention that their
claims “are not moot, because it is still possible for the trial court to grant some of the
requested relief, i.e. the court must still determine whether the defendants’ claims and
15. advertisement violated the Ohio statutes and whether Appellees acted willfully in doing
so.”
{¶ 30} Pursuant to long-standing, well-established, and constitutionally mandated
standards of jurisdiction, appellants’ claims under R.C. 4731.341 and R.C. 2721 were
properly found by the trial court to be moot. Appellants first and second assignments of
error are found not well-taken.
Appellants have not shown that this matter is one of “great public or general interest” such that an appellate court should review and decide it despite its mootness.
{¶ 31} Appellants argue in their third assignment of error that an exception to the
mootness doctrine should be made in this case as the matter appealed is one of “great
public or general interest.” Although there is such an exception recognized in the law, see
State ex re. White v. Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508, ¶ 16,
“[o]rdinarily, * * * such an action should be taken only by the highest court in the state,
rather than an intermediate appellate court.” In re Brown, 10th Dist. Franklin No. 03AP-
1205, 03AP-1206, 2005-Ohio-2425, ¶ 18. Appellants offer no evidence to show that such
a course is justified in this case.
{¶ 32} Appellants argue that because the unlicensed practice of medicine, in
general, is identified as “inimical to the public welfare” and “constitutes a public
nuisance,” it satisfies the requirement of being a matter of great public interest. By this
logic, no case involving the unlicensed or unauthorized practice of medicine could ever
16. be moot. Appellants then try to add that “temporal features” of R.C. 4731.341, including
the “right to civil docket priority and a mandate to swiftly address the alleged nuisance,”
require clarification and justify this court’s override of mootness
{¶ 33} We disagree that the matters at issue in the instant case are of such great
public or general interest that we, as an appellate court, should apply this unusual
exception to mootness. Accordingly, appellants’ third assignment of error is found not
well-taken.
Conclusion
{¶ 34} The judgment of the Lucas County Court of Common Pleas is affirmed.
Appellants are to pay the costs of appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Charles E. Sulek, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
17.