Troy Twp. Bd. of Trustees v. Lawson

2017 Ohio 7216

• Court: Ohio Court of Appeals
• Decided: August 11, 2017
• Docket: 17-COA-003
• Status: Published

Opinion

[Cite as Troy Twp. Bd. of Trustees v. Lawson, 2017-Ohio-7216.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

BOARD OF TRUSTEES OF TROY TOWNSHIP, JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : BENJAMIN D. LAWSON, ET AL., : Case No. 17-COA-003 : Defendants - Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 09-CIV-229

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 11, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

CHRISTOPHER R. TUNNELL BENJAMIN D. LAWSON Ashland County Prosecutor FRANCES P. LAWSON 384 Twp Rd. 1031 By: MICHAEL D. DONATINI Nova, Ohio 44859 Assistant Prosecuting Attorney 110 Cottage St., 3rd Fl. Ashland, Ohio 44805 Ashland County, Case No. 17-COA-003 2

Baldwin, J.

{¶1} Defendant-appellants Benjamin D. Lawson and Frances P. Lawson appeal

from the January 25, 2017 Judgment Entry of the Ashland County Court of Common Pleas

finding them in contempt.

STATEMENT OF THE FACTS AND CASE

{¶2} On May 19, 2009, appellee Board of Trustees of Troy Township filed a

complaint against appellants Benjamin D. Lawson and Frances P. Lawson, seeking to

enforce the township Zoning Resolution. Appellee, in its complaint, alleged that appellants

had located and maintained mobile offices on their property and had not obtained a zoning

certificate for the same in violation of Section 801 of the Troy Township Zoning Resolution.

Appellee further alleged that appellants had violated Section 511 of the Zoning Resolution

because the mobile offices were in a dilapidated and deteriorated condition that constituted

a nuisance and that appellants were using their property in a manner that violated sections

301(3) and 417 of the Zoning Resolution because the mobile office units did not meet the

criteria for manufactured or modular homes. Finally, in their complaint, appellee alleged

that appellants were keeping junk items on their property in violation of Section 502 of the

Zoning Resolution. Appellants filed a pro se answer on May 28, 2009. Appellants, in their

answer, cited to R.C. 303.21, which exempts agricultural uses from countywide zoning

under certain circumstances.

{¶3} Appellee, on October 1, 2009, filed a Motion for Judgment on the Pleadings

pursuant to Civ.R. 12(C). Appellants filed a memorandum in opposition to the same on

October 8, 2009, citing to R.C. 303.21. Appellee filed a reply on October 15, 2009. The

trial court, pursuant to a Judgment Entry filed on February 8, 2010, denied such motion. Ashland County, Case No. 17-COA-003 3

{¶4} A mediation conference was held on July 14, 2010 and the case was

settled. The parties’ Settlement Agreement was attached to the Mediation Status Report

that was filed on July 15, 2010. An Agreed Judgment Entry dismissing the case was filed

on October 6, 2010.

{¶5} Thereafter, on October 13, 2015, appellee filed a Motion to Show Cause,

alleging that appellants were in contempt for failing to comply with the July 14, 2010

settlement. A hearing on the motion was held on December 11, 2015. As memorialized in

a Judgment Entry filed on January 25, 2017, the trial court found that appellants had failed

to comply with the Settlement Agreement and found them in contempt. The trial court

granted appellants time to purge their contempt.

{¶6} Appellants now appeal from the trial court’s January 25, 2017 Judgment

Entry, raising the following assignments of error on appeal:

{¶7} I. BENJAMIN LAWSON AND FRANCES LAWSON SHALL IMMEDIATELY

BEGIN TO REMOVE ALL HALF STRUCTURES SITUATED ON THE PREMISES

SITUATED AT 384 TOWNSHIP RD. NOVA OHIO, AND SHALL COMPLETE SUCH

REMOVAL ON OR BEFORE MAY 1, 2017.

{¶8} II. BENJAMIN D. LAWSON AND FRANCES LAWSON SHALL

IMMEDIATELY BEGIN TO FULLY CONSTRUCT THE RESIDENCE LOCATED AT 384

TOWNSHIP RD 1031 NOVA OHIO, SHALL COMPLETE SUCH CONSTRUCTION

BEFORE JUNE 15, 2017, AND DO SO IN ACCORDANCE WITH THE PLANS INCLUDED

WITH THE TROY TOWNSHIP BOARD OF ZONING APPEALS APPLICATION

(INCLUDING WITHOUT LIMITATION, A PITCHED ROOF, A BRICK FACADE AND A

FOUNDATION). Ashland County, Case No. 17-COA-003 4

{¶9} III. BENJAMIN LAWSON AND FRANCES LAWSON SHALL ON OR

BEFORE JUNE 30, 2017 PLANT PINE TREES ALONG SOUTH AND EAST SIDES OF

THE 384 TOWNSHIP ROAD 1031 NOVA OHIO PROPERTY, AND SHALL MAINTAIN OR

REPLACE ANY OF SAID TREES AS REQUIRED.

I, II, III

{¶10} Appellants, in their three assignments of error, do not specifically challenge

the trial court’s contempt finding against them. Rather, appellants specifically contend that

under R.C. 519.21, appellee had no power to prohibit “the use of any land for agricultural

purposes or the construction or use of buildings or structures incident to the use for

agricultural purposes of the land on which such buildings or structures are located,..” and

that they were using their land and/or structures on their land for agricultural purposes.

Appellants further argue that, by ordering them to plant pine trees, appellee denied them

the rightful enjoyment of their farm.

{¶11} The trial court, in its January 25, 2017 Judgment Entry, ordered, in part,

that, in order to purge themselves of contempt, appellants were required to do the

following:

{¶12} 1. Benjamin D. Lawson and Frances Lawson shall immediately begin to

remove all half structures situated on the premises located at 384 Township Road 1031,

Nova, Ohio, and shall complete such removal on or before May 1, 2017;

{¶13} 2. Benjamin D. Lawson and Frances Lawson shall immediately begin to

fully construct the residence located at 384 Township Road 1031, Nova, Ohio, shall

complete such construction on or before June 15, 2017, and shall do so in accordance Ashland County, Case No. 17-COA-003 5

with the plans included with the Troy Township Board of Zoning Appeals application

(including, without limitation, a pitched roof, a brick facade and a foundation);

{¶14} Benjamin D. Lawson and Frances Lawson shall, on or before June 30,

2017, plant pine trees along the south and east sides of the 384 Township Road 1031

Nova, Ohio property, and shall maintain or replace any of said trees as required, through

October 1, 2017.

{¶15} As noted by appellee, these are the same conditions to which appellants

agreed as a condition of the case being settled and dismissed. Had appellants wished to

pursue the agricultural use defense or other defenses, they could have declined to settle

the case, proceeded to trial and presented evidence. Appellants, however, did not do so

and have waived the defenses. “Waiver” is defined as the voluntary relinquishment of a

known legal right. Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 2006-

Ohio-6553, at ¶ 49. By entering into the settlement agreement, appellants affirmatively

waived the agricultural use or other defenses.

{¶16} Moreover, [w]hen portions of the transcript necessary for resolution of

assigned errors are omitted from the record, the reviewing court has nothing to pass upon

and thus, as to those assigned errors, the court has no choice but to presume the validity

of the lower court's proceedings, and affirm.” Knapp v. Edwards Laboratories, 61 Ohio

St.2d 197, 199, 400 N.E.2d 384 (1980). “The duty to provide a transcript for appellate

review falls upon the appellant. This is necessarily so because an appellant bears the

burden of showing error by reference to matters in the record.” Id. Ashland County, Case No. 17-COA-003 6

{¶17} Appellants have not provided this Court with a transcript of the December

11, 2015 hearing. Without a transcript, we must presume the validity of the trial court's

proceedings and affirm.

{¶18} Appellants’ three assignments of error are, therefore, overruled.

{¶19} Accordingly, the judgment of the Ashland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Gwin, P.J. and

John Wise, J. concur.