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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
REPEY BRIEF
May 16,2023 10:26
By: THOMAS A. KELLY 0010355
Confirmation Nbr. 2858236
EDWARD BIESIADA CV 23 975442
vs.
Judge: SHIRLEY STRICKLAND SAFFOLD
CITY OF NORTH ROYALTON MAYOR ET AL
Pages Filed: 7
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
EDWARD BIESIADA )
) Case No.: CV23 975442
Plaintiff/Appellant )
) JUDGE: Shirley Strickland Saffold
vs. )
)
CITY OF NORTH ROYALTON )
MAYOR, et al. )
) Defendants/Appellees Reply to Plaintiff’s
Defendants/Appellees ) Brief in Opposition to Motion to Dismiss
)
Defendants/Appellees, North Royalton Board of Zoning Appeals and City of North
Royalton Mayor (collectively, “Appellees”) submit this reply to Plaintiff/Appellant’s
(“Appellant”) Opposition Brief as follows:
First, despite Appellant’s assertions to the contrary, the facts and arguments of the appeal
have not been briefed nor are supported by the record nor is it timely to do so. Appellant attempts
herein to bootstrap the substance of his administrative appellate brief into his Opposition Brief
to the Motion to Dismiss. Appellant distorts the facts and infers that the variance was approved
in a conspiracy intended to disregard the evidence. He claims that a “travesty” has occurred (the
Board of Zoning Appeals grant of a variance of five (5) feet for the placement of a fence) and,
without any specific support for the proposition, reaches the conclusion that the criteria for
granting a variance has not been met. These statements and assertions are entirely inappropriate
in a response to a Motion to Dismiss on mootness grounds and should be stricken from the
record.
Second, as to Appellant’s assertion that the Motion to Dismiss for mootness should be
denied and stricken because it is supported by an affidavit, he misconstrues the issue of
mootness and the long and well-established mootness doctrine. It deserves to be noted that
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this is an administrative appeal. There is no complaint, cross-claim or counterclaim, merely a
notice of administrative appeal and transcript of the proceedings.
“Mootness” is a jurisdictional question and as such is one that must be addressed even
if the parties do not raise it. Primelending v. Milhoan, 2020-0hio-3703, (citing North
Caroline v. Rice, 404 US at 246, 92 S. Ct. 402, 30L.Ed. 2d 413).
While Plaintiff finds “devastating” that the motion to dismiss contains the affidavit of
the Building Commissioner, his reaction is misplaced. Appellant made an extensive summary
of the Eleventh District Court of appeals case, Eye-Wil Dev., Inc. v. Lake County Planning,
2006-0hio-6103. In that case the moving party added the mootness argument into their
trial/merit brief. As cited by Appellant, the court stated that the trial brief took the form of a
motion to dismiss.. .and stated that it would have been better practice for them to file a motion
to dismiss the administrative appeal, with supporting affidavit, as Appellees have done in this
case, (emphasis added) Id. at para. 33. In net the case argued by Appellant fully supports the
position of the Appellees.
Normally, an appellate court may only consider what is in the record on appeal. When it
comes to deciding whether an event has occurred to cause an issue to become moot it may be
proved by extrinsic evidence outside the record. State ex rel. Cincinnati Enquirer v. Dupuis,
98 Ohio St.3d 126, 2002 Ohio 7041, 781 N.E.2d 163; see also Gajewski, et al v. Board of
Zoning Appeals, et al. 2008-0hio-5270, para. 14
Furthermore, as the 8th District Court of Appeals has addressed in Gajewski, et al v.
Board of Zoning Appeals, et al. 2008-0hio-5270, in dealing with the issue of mootness in an
administrative appeal, restated the Supreme Court decision in Miner v. Witt, (1910), 82 Ohio
St. 237: “The duty of this court, as of every other judicial tribunal, is to decide actual
controversies by a judgment which can be carried into effect, and not to give opinions upon
moot questions or abstract propositions, or to declare principals or rules of law which cannot
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affect the matter in issue in the case before it And such a fact, when not appearing on the
record, may be proved by extrinsic evidence.” Id at 238.
Additionally, the court in Coates Run Prop. LL, LLC v. City of Athens Bd. of Zoning
Appeals, 2015-Ohio-4732 citing State ex rel. Cincinnati Enquirer v. Dupuis, supra, para. 8,
“An event that causes a case to become moot may be proved by extrinsic evidence outside the
record.” See also, Kent Inv’rs, LLC v. City of Kent Planning Comm’n., 2019-0hio-410 (11th
District) citing Coates Run, supra, where the court held a party could establish on appeal that
a construction project had commenced by way of affidavit testimony, in order to obtain
dismissal.
Likewise, in Redmon v. City Council, 2006-0hio-2199 a motion to dismiss with
supporting affidavit was filed in an administrative appeal based upon the completed construction
as in this case. The court concluded based on the affidavit that the construction was completed
and as such the mootness doctrine applied and granted the motion to dismiss the appeal. See
also, Meyerson v. City of Fairlawn, 2022-Ohio-2255.
Third, while Appellant attempts to diminish the value of the construction in this case
because it is a fence, we surmise that it represents a significant investment to the property owner
and is not irrelevant as Appellant infers. Furthermore, while Appellant’s claim that the case law
cited in the motion to dismiss included construction of buildings, the cases all turn on the
mootness doctrine as set forth in case law, including Gajewski, supra in which the 8th District
Court of Appeals stated: “ 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.”
Additionally, the Gajewski court cited another case in which a board sought and obtained
easements on a landowner’s property to construct drainage improvement. The court in that case
stated, “We are at a loss to determine what relief Appellants seek under these assignments,
inasmuch as the work which the Saunders would have us prevent has already been completed.
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It would be nonsensical for us to require that the replacement drainage tiles [emphasis added]
be removed and the work be undone in order to cure the error assigned. Therefore, issues
presented have been rendered moot by the completion of the project.” Bd. of Cotnmrs. Of
Montgomery Cty. v. Saunders 2001-0hio-1710
Therefore, it is clear that inasmuch as the Gajewski court cited the above referenced case
it follows that “construction” shall not be defined as narrowly as Appellant has suggested.
Therefore “mootness” applies when construction is completed whether it is a building, a
drainage improvement or a fence, as in this case.
Appellant relies on a federal case regarding The Wild Free-Roaming Horses and Burros
Act, in which unlike the present case, a complaint was filed with various issues. The court
granted the motion to dismiss as the “September 2009 gather” was completed and therefore the
effort moot. The other claims were determined not moot because the court could grant relief by
requiring either the existing fences be removed or enjoining the Bureau from constructing new
fences. However, in that case it was the Bureau that erected the fences-in this case it is an
adjoining property owner that constructed the fence and that person is not a party to this action.
In this case, once the variance was granted the property owner proceed to obtain a permit and
installed the fence and Appellant failed to make an effort obtain a stay to stop the construction.
In Gajewski, as here, Appellant never sought a stay order. In the case at bar Appellant
acknowledges the fact that the fence is constructed. Appellant ought not be allowed to stand idly
by, watch the construction of the fence of his immediate next-door neighbor in the process of
being built and then to argue that the matter is not moot and seek to reverse the construction that
is completed after the neighbor’s investment is fully made.
Appellant failed to seek or obtain a stay of the North Royalton Board of Zoning
Appeals decision that would halt the construction of the fence. Appellant argument that since
the fence construction was “barely begun when the notice of appeal was filed” does not alter
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that fact that the appeal is moot. Appellant was fully aware that the construction was
ongoing and made no effort to stop the construction.
We note that Appellant’s cited case, Eye-Will Dev., Inc. supra states, “While a party
who wins at the administrative level proceeds at his own risk when that decision is appealed,
the losing party cannot sit by and watch construction proceed. The losing party must move for
a stay to protect is own interests in the matter. Otherwise, the party risks the matter being
declared moot at the appellate level.” lemphasis added] para. 47.
Here Appellant merely waited - and failed to take the appropriate action, i.e. motion to
stay. The construction is complete, no stay was filed and as such there is no justiciable issue
for the court to decide. Gajewski, supra.
Appellant’s inference that the Appellee acted improperly once it was on notice of the
appeal and failed to wait to give its approval on the fence construction until after this
underlying appeal was decided is without merit. Appellant offers no citation for the
proposition that the Building Department is permitted to withhold approval of a permit until
after an appeal is decided. Contrary to Plaintiffs allegations, the City is mandated to perform
its duties, ie, perform inspections on permitted work unless or until an injunction or stay is
issued. For the city officials to act otherwise would be neglectful and improper. While it is
clear that the property owner acts at their own risk when they proceed during an appeal, their
effort was not a “blatant disregard of the appeal to sneak the fence into existence knowing of
the pending appeal.” Rather it was Appellant who stood by and watched the construction and
failed to seek a stay. A party is not “at fault” for purposes of determining whether a
proceeding is moot if it proceeds with construction that is the subject of a case in which it has
not been enjoined from proceeding. Coates Run Prop. LL, LLC v. City of Athens Bd. of
Zoning Appeals, 2105-Ohio-4732.
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Courts have repeatedly held that in cases involving construction where an aggrieved
party fails to obtain a stay of execution or injunctive relief before construction commences, the
case is moot. In this case the property owner obtained a building permit the day after the
variance was granted, commenced construction, including a survey of the property, and the
fence was installed pursuant to the plans and specifications and no stay order was ever sought.
Here, Appellant, possibly ignorant of the obligation to seek a stay, sat back and
watched the construction proceed. Now he attempts to discredit Appellees and asserts that it
attempted to “sneak” the fence into existence. Appellant’s allegations of wrongdoing are
mistaken, misdirected and self-serving. Appellant failed to seek a motion to stay- had he done
so successfully the construction would have halted. Appellant’s failure to have secured a stay
order is the sole reason that this case is moot.
Finally, as to Appellant’s request that the court order the impositions of attorney fees and
costs regarding this motion, Appellees moves the court to strike from the record Plaintiffs
requests as unsupported and unwarranted. For all the foregoing reasons, Appellees move the Court
for an order dismissing the appeal on the grounds of mootness. As the Court stated in State ex rel.
Wood v. Rocky River, 2021-Ohio-3313, “subsequent events have rendered the case moot.”
Respectfully submitted,
/s/Thomas A. Kelly_________
Thomas A. Kelly (OSC&10355)
Law Director
Donna M. Vozar (OSC#0058620)
Assistant Law Director
14600 State Road
North Royalton, OH 44133
440.877.1178
440.877.1176 fax
tkelly@rtorthroyalton.org
dvozar@rtorthroyalton.org
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CERTIFICATE OF SERVICE
A copy of the foregoing Defendants/Appellees Reply to Plaintiffs Brief In Opposition to
Motion to Dismiss was filed electronically with the Court and served via electronic mail this 16th
day of May, 2023 to the following:
Erik L. Walter
Dworken & Bernstein Co., L.P.A.
60 South Park Place
Painesville, OH 44077
P:440-352-3391
Email: ewalter@dworkenlaw.com
/s/Thomas A. Kelly
Thomas A. Kelly (10355)
Electronically Filed 05/16/2023 10:26 / BRIEF / CV 23 975442 / Confirmation Nbr. 2858236 / BATCH
Preview
NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas REPEY BRIEF May 16,2023 10:26 By: THOMAS A. KELLY 0010355 Confirmation Nbr. 2858236 EDWARD BIESIADA CV 23 975442 vs. Judge: SHIRLEY STRICKLAND SAFFOLD CITY OF NORTH ROYALTON MAYOR ET AL Pages Filed: 7 Electronically Filed 05/16/2023 10:26 / BRIEF / CV 23 975442 / Confirmation Nbr. 2858236 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO EDWARD BIESIADA ) ) Case No.: CV23 975442 Plaintiff/Appellant ) ) JUDGE: Shirley Strickland Saffold vs. ) ) CITY OF NORTH ROYALTON ) MAYOR, et al. ) ) Defendants/Appellees Reply to Plaintiff’s Defendants/Appellees ) Brief in Opposition to Motion to Dismiss ) Defendants/Appellees, North Royalton Board of Zoning Appeals and City of North Royalton Mayor (collectively, “Appellees”) submit this reply to Plaintiff/Appellant’s (“Appellant”) Opposition Brief as follows: First, despite Appellant’s assertions to the contrary, the facts and arguments of the appeal have not been briefed nor are supported by the record nor is it timely to do so. Appellant attempts herein to bootstrap the substance of his administrative appellate brief into his Opposition Brief to the Motion to Dismiss. Appellant distorts the facts and infers that the variance was approved in a conspiracy intended to disregard the evidence. He claims that a “travesty” has occurred (the Board of Zoning Appeals grant of a variance of five (5) feet for the placement of a fence) and, without any specific support for the proposition, reaches the conclusion that the criteria for granting a variance has not been met. These statements and assertions are entirely inappropriate in a response to a Motion to Dismiss on mootness grounds and should be stricken from the record. Second, as to Appellant’s assertion that the Motion to Dismiss for mootness should be denied and stricken because it is supported by an affidavit, he misconstrues the issue of mootness and the long and well-established mootness doctrine. It deserves to be noted that Electronically Filed 05/16/2023 10:26 / BRIEF / CV 23 975442 / Confirmation Nbr. 2858236 / BATCH this is an administrative appeal. There is no complaint, cross-claim or counterclaim, merely a notice of administrative appeal and transcript of the proceedings. “Mootness” is a jurisdictional question and as such is one that must be addressed even if the parties do not raise it. Primelending v. Milhoan, 2020-0hio-3703, (citing North Caroline v. Rice, 404 US at 246, 92 S. Ct. 402, 30L.Ed. 2d 413). While Plaintiff finds “devastating” that the motion to dismiss contains the affidavit of the Building Commissioner, his reaction is misplaced. Appellant made an extensive summary of the Eleventh District Court of appeals case, Eye-Wil Dev., Inc. v. Lake County Planning, 2006-0hio-6103. In that case the moving party added the mootness argument into their trial/merit brief. As cited by Appellant, the court stated that the trial brief took the form of a motion to dismiss.. .and stated that it would have been better practice for them to file a motion to dismiss the administrative appeal, with supporting affidavit, as Appellees have done in this case, (emphasis added) Id. at para. 33. In net the case argued by Appellant fully supports the position of the Appellees. Normally, an appellate court may only consider what is in the record on appeal. When it comes to deciding whether an event has occurred to cause an issue to become moot it may be proved by extrinsic evidence outside the record. State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002 Ohio 7041, 781 N.E.2d 163; see also Gajewski, et al v. Board of Zoning Appeals, et al. 2008-0hio-5270, para. 14 Furthermore, as the 8th District Court of Appeals has addressed in Gajewski, et al v. Board of Zoning Appeals, et al. 2008-0hio-5270, in dealing with the issue of mootness in an administrative appeal, restated the Supreme Court decision in Miner v. Witt, (1910), 82 Ohio St. 237: “The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principals or rules of law which cannot Electronically Filed 05/16/2023 10:26 / BRIEF / CV 23 975442 / Confirmation Nbr. 2858236 / BATCH affect the matter in issue in the case before it And such a fact, when not appearing on the record, may be proved by extrinsic evidence.” Id at 238. Additionally, the court in Coates Run Prop. LL, LLC v. City of Athens Bd. of Zoning Appeals, 2015-Ohio-4732 citing State ex rel. Cincinnati Enquirer v. Dupuis, supra, para. 8, “An event that causes a case to become moot may be proved by extrinsic evidence outside the record.” See also, Kent Inv’rs, LLC v. City of Kent Planning Comm’n., 2019-0hio-410 (11th District) citing Coates Run, supra, where the court held a party could establish on appeal that a construction project had commenced by way of affidavit testimony, in order to obtain dismissal. Likewise, in Redmon v. City Council, 2006-0hio-2199 a motion to dismiss with supporting affidavit was filed in an administrative appeal based upon the completed construction as in this case. The court concluded based on the affidavit that the construction was completed and as such the mootness doctrine applied and granted the motion to dismiss the appeal. See also, Meyerson v. City of Fairlawn, 2022-Ohio-2255. Third, while Appellant attempts to diminish the value of the construction in this case because it is a fence, we surmise that it represents a significant investment to the property owner and is not irrelevant as Appellant infers. Furthermore, while Appellant’s claim that the case law cited in the motion to dismiss included construction of buildings, the cases all turn on the mootness doctrine as set forth in case law, including Gajewski, supra in which the 8th District Court of Appeals stated: “ 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.” Additionally, the Gajewski court cited another case in which a board sought and obtained easements on a landowner’s property to construct drainage improvement. The court in that case stated, “We are at a loss to determine what relief Appellants seek under these assignments, inasmuch as the work which the Saunders would have us prevent has already been completed. Electronically Filed 05/16/2023 10:26 / BRIEF / CV 23 975442 / Confirmation Nbr. 2858236 / BATCH It would be nonsensical for us to require that the replacement drainage tiles [emphasis added] be removed and the work be undone in order to cure the error assigned. Therefore, issues presented have been rendered moot by the completion of the project.” Bd. of Cotnmrs. Of Montgomery Cty. v. Saunders 2001-0hio-1710 Therefore, it is clear that inasmuch as the Gajewski court cited the above referenced case it follows that “construction” shall not be defined as narrowly as Appellant has suggested. Therefore “mootness” applies when construction is completed whether it is a building, a drainage improvement or a fence, as in this case. Appellant relies on a federal case regarding The Wild Free-Roaming Horses and Burros Act, in which unlike the present case, a complaint was filed with various issues. The court granted the motion to dismiss as the “September 2009 gather” was completed and therefore the effort moot. The other claims were determined not moot because the court could grant relief by requiring either the existing fences be removed or enjoining the Bureau from constructing new fences. However, in that case it was the Bureau that erected the fences-in this case it is an adjoining property owner that constructed the fence and that person is not a party to this action. In this case, once the variance was granted the property owner proceed to obtain a permit and installed the fence and Appellant failed to make an effort obtain a stay to stop the construction. In Gajewski, as here, Appellant never sought a stay order. In the case at bar Appellant acknowledges the fact that the fence is constructed. Appellant ought not be allowed to stand idly by, watch the construction of the fence of his immediate next-door neighbor in the process of being built and then to argue that the matter is not moot and seek to reverse the construction that is completed after the neighbor’s investment is fully made. Appellant failed to seek or obtain a stay of the North Royalton Board of Zoning Appeals decision that would halt the construction of the fence. Appellant argument that since the fence construction was “barely begun when the notice of appeal was filed” does not alter Electronically Filed 05/16/2023 10:26 / BRIEF / CV 23 975442 / Confirmation Nbr. 2858236 / BATCH that fact that the appeal is moot. Appellant was fully aware that the construction was ongoing and made no effort to stop the construction. We note that Appellant’s cited case, Eye-Will Dev., Inc. supra states, “While a party who wins at the administrative level proceeds at his own risk when that decision is appealed, the losing party cannot sit by and watch construction proceed. The losing party must move for a stay to protect is own interests in the matter. Otherwise, the party risks the matter being declared moot at the appellate level.” lemphasis added] para. 47. Here Appellant merely waited - and failed to take the appropriate action, i.e. motion to stay. The construction is complete, no stay was filed and as such there is no justiciable issue for the court to decide. Gajewski, supra. Appellant’s inference that the Appellee acted improperly once it was on notice of the appeal and failed to wait to give its approval on the fence construction until after this underlying appeal was decided is without merit. Appellant offers no citation for the proposition that the Building Department is permitted to withhold approval of a permit until after an appeal is decided. Contrary to Plaintiffs allegations, the City is mandated to perform its duties, ie, perform inspections on permitted work unless or until an injunction or stay is issued. For the city officials to act otherwise would be neglectful and improper. While it is clear that the property owner acts at their own risk when they proceed during an appeal, their effort was not a “blatant disregard of the appeal to sneak the fence into existence knowing of the pending appeal.” Rather it was Appellant who stood by and watched the construction and failed to seek a stay. A party is not “at fault” for purposes of determining whether a proceeding is moot if it proceeds with construction that is the subject of a case in which it has not been enjoined from proceeding. Coates Run Prop. LL, LLC v. City of Athens Bd. of Zoning Appeals, 2105-Ohio-4732. Electronically Filed 05/16/2023 10:26 / BRIEF / CV 23 975442 / Confirmation Nbr. 2858236 / BATCH Courts have repeatedly held that in cases involving construction where an aggrieved party fails to obtain a stay of execution or injunctive relief before construction commences, the case is moot. In this case the property owner obtained a building permit the day after the variance was granted, commenced construction, including a survey of the property, and the fence was installed pursuant to the plans and specifications and no stay order was ever sought. Here, Appellant, possibly ignorant of the obligation to seek a stay, sat back and watched the construction proceed. Now he attempts to discredit Appellees and asserts that it attempted to “sneak” the fence into existence. Appellant’s allegations of wrongdoing are mistaken, misdirected and self-serving. Appellant failed to seek a motion to stay- had he done so successfully the construction would have halted. Appellant’s failure to have secured a stay order is the sole reason that this case is moot. Finally, as to Appellant’s request that the court order the impositions of attorney fees and costs regarding this motion, Appellees moves the court to strike from the record Plaintiffs requests as unsupported and unwarranted. For all the foregoing reasons, Appellees move the Court for an order dismissing the appeal on the grounds of mootness. As the Court stated in State ex rel. Wood v. Rocky River, 2021-Ohio-3313, “subsequent events have rendered the case moot.” Respectfully submitted, /s/Thomas A. Kelly_________ Thomas A. Kelly (OSC&10355) Law Director Donna M. Vozar (OSC#0058620) Assistant Law Director 14600 State Road North Royalton, OH 44133 440.877.1178 440.877.1176 fax tkelly@rtorthroyalton.org dvozar@rtorthroyalton.org Electronically Filed 05/16/2023 10:26 / BRIEF / CV 23 975442 / Confirmation Nbr. 2858236 / BATCH CERTIFICATE OF SERVICE A copy of the foregoing Defendants/Appellees Reply to Plaintiffs Brief In Opposition to Motion to Dismiss was filed electronically with the Court and served via electronic mail this 16th day of May, 2023 to the following: Erik L. Walter Dworken & Bernstein Co., L.P.A. 60 South Park Place Painesville, OH 44077 P:440-352-3391 Email: ewalter@dworkenlaw.com /s/Thomas A. Kelly Thomas A. Kelly (10355) Electronically Filed 05/16/2023 10:26 / BRIEF / CV 23 975442 / Confirmation Nbr. 2858236 / BATCH