State ex rel. Pfeiffer v. Columbus Inn & Suites , 2014 Ohio 4358 ( 2014 )

[Cite as State ex rel. Pfeiffer v. Columbus Inn & Suites, 2014-Ohio-4358.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Columbus City Attorney, :
Richard C. Pfeiffer, Jr.,
:
Relator-Appellee,
: No. 14AP-132
v. (M.C. No. 2013 EVH 60174)
:
Columbus Inn and Suites et al., (REGULAR CALENDAR)
:
Respondents-Appellants.
:
D E C I S I O N
Rendered on September 30, 2014
Richard C. Pfeiffer, Jr., City Attorney, William A. Sperlazza
and Westley M. Phillips, for appellee.
Stephen H. Dodd, for appellants.
APPEAL from the Franklin County Municipal Court
KLATT, J.
{¶ 1} Respondents-appellants, Mohammad and Umtul Ashraf, appeal a judgment
of the Franklin County Municipal Court that found appellants guilty of maintaining a
nuisance at property that they own, granted injunctive relief pursuant to R.C. 3767.05(D)
and 3767.06(A), and taxed each appellant $300. For the following reasons, we affirm that
judgment.
{¶ 2} In 2003, appellants bought property on Zumstein Drive that included two
hotels. The property is situated in northern Columbus near the intersection of Interstate
71 and State Route 161. Appellants split the Zumstein Drive property into two parcels,
No. 14AP-132 2
allocating one hotel to each parcel. Appellants sold the parcel at 6121 Zumstein Drive to
Neera and Virendra Garg via a land installment contract in 2006. Under the terms of the
land installment contract, appellants retained the legal title to 6121 Zumstein Drive until
the Gargs paid the full purchase price. The Gargs struggled to make the monthly
payments and failed to tender the balloon payment due on June 30, 2010. In July 2013,
after the initiation of the instant lawsuit, appellants and the Gargs entered into an
agreement terminating the land installment contract.
{¶ 3} From 2006 until June 2013, the Gargs operated a hotel, called the
Columbus Inn and Suites, at 6121 Zumstein Drive. Mohammad Ashraf operated the
neighboring hotel, as well as another hotel on the opposite side of Interstate 71.
{¶ 4} Unfortunately, the Columbus Inn and Suites developed a reputation as an
outlet for illegal drugs and prostitution. From January 2012 to June 2013, officers of the
Columbus Division of Police made 497 runs to the Columbus Inn and Suites. Throughout
the spring 2012, Columbus police sent confidential informants to various rooms of the
Columbus Inn and Suites to purchase narcotics. As a result of the controlled purchases,
Columbus police executed three search warrants at the Columbus Inn and Suites. During
the searches, the police found heroin, marijuana, guns, scales, syringes, and cash. In
addition to the narcotics investigation, undercover police officers investigated prostitution
at the Columbus Inn and Suites. As a result of those investigations, multiple individuals
were convicted of prostitution-related charges.
{¶ 5} On June 11, 2013, relator-appellee, Richard C. Pfeiffer, Jr., the Columbus
city attorney, filed a civil action against appellants pursuant to R.C. 3767.03.1 The
complaint demanded a judgment (1) finding that appellants maintained a nuisance;
(2) permanently enjoining appellants from conducting, maintaining, using, occupying, or
in any way permitting the use of 6121 Zumstein Drive as a nuisance; (3) ordering the sale
of furniture, fixtures, and moveable property at the premises; (4) ordering the closure of
the premises for one year; and (5) taxing appellants $300 each. At the same time he filed
1 The city attorney also named as defendants the Columbus Inn and Suites, the real property located at
6121 Zumstein Drive, the Gargs, and Raxon Restaurant, Inc. (a corporation the Gargs controlled and a
party to the land installment contract). Ultimately, the Gargs and Raxon Restaurant, Inc. stipulated that
their operation of the Columbus Inn and Suites constituted a nuisance. The trial court permanently
enjoined the Gargs and Raxon Restaurant, Inc. from maintaining a nuisance anywhere in Columbus or
Franklin County and taxed them $300.
No. 14AP-132 3
the complaint, the city attorney also filed a motion for a temporary restraining order
("TRO"), a Civ.R. 65(A) affidavit supporting that motion, and a motion for preliminary
and permanent injunctive relief.
{¶ 6} Without notice to appellants or their attorney, the trial court granted a TRO
that ordered the forcible removal of all occupants of 6121 Zumstein Drive and closure of
premises for any purpose. The order provided that it would remain in effect until
June 26, 2013—the date of the hearing on the merits of the complaint and the motion for
preliminary and permanent injunctive relief—or as otherwise ordered by the court.
{¶ 7} On June 21, 2013, appellants requested a continuance of the hearing
scheduled for June 26, 2013. The trial court granted that motion and rescheduled the
hearing for July 25, 2013. Two days after they received the continuance, appellants
moved to dissolve the TRO or, in the alternative, for a hearing on the city attorney's
motion for a preliminary injunction. The trial court denied that motion in its entirety,
stating that at the July 25, 2013 hearing, "the court will hear evidence * * * as it relates to
Relator-Plaintiff's request for preliminary injunctive relief as set forth in R.C. 3767.04."
(R. 20, at 2.)
{¶ 8} Apparently, the July 25, 2013 hearing never occurred. It appears from the
docket that the parties first appeared in court on September 9, 2013, the date trial
commenced. Thus, the trial court never conducted a hearing on the city attorney's
request for a preliminary injunction. More troubling, the trial court never issued an order
granting a preliminary injunction.
{¶ 9} At the conclusion of the trial, the trial court issued a decision finding
appellants guilty of maintaining a nuisance at 6121 Zumstein Drive. The trial court found
that appellants knew of the criminal activity at 6121 Zumstein Drive and that they did
nothing to abate that activity. In a judgment dated January 21, 2014, the trial court
granted the city attorney all the relief that he asked for in the complaint.
{¶ 10} Appellants now appeal the trial court's January 21, 2014 judgment, and they
assign the following errors:
ASSIGNMENT OF ERROR NO. 1
The Municipal Court erred in issuing a Temporary
Restraining Order which authorized the Columbus Police to
remove all occupants from the subject property and to close
No. 14AP-132 4
the property against its use for any purpose until the Court
rendered a final decision.
ASSIGNMENT OF ERROR NO. 2
The final decision of the Municipal Court is against the
manifest weight of the evidence.
{¶ 11} Before we address the merits of appellants' assignments of error, we will
review the procedures set forth in R.C. Chapter 3767 for the abatement of nuisances.
Pursuant to R.C. 3767.02(A), "[a]ny person, who uses, occupies, establishes, or conducts a
nuisance" and "the owner * * * of an interest in any such nuisance" is "guilty of
maintaining a nuisance and shall be enjoined as provided in" R.C. 3767.03 to 3767.11.
The attorney general, a village solicitor, a city or township director of law, a prosecuting
attorney, or a private citizen "may bring an action in equity in the name of the state * * *
to abate the nuisance and to perpetually enjoin the person maintaining the nuisance from
further maintaining it." R.C. 3767.03.
{¶ 12} At the same time the relator files a nuisance complaint, he or she may apply
for a preliminary injunction pursuant to R.C. 3767.04(B).2 If the relator applies for a
preliminary injunction, he or she may also request an ex parte restraining order
"restraining the [respondent] and all other persons from removing or in any manner
interfering with the personal property and contents of the place where the nuisance is
alleged to exist." R.C. 3767.04(B)(2). If granted, the restraining order remains in effect
until the trial court issues a decision on the preliminary injunction application or the
court otherwise orders. Id.{¶ 13} The trial court must hold a hearing on an application for a preliminary
injunction within ten days of the filing of the application. R.C. 3767.04(B)(1). At least five
days prior to that hearing, the respondent must be served with the complaint, the
application for the preliminary injunction, and a notice of the time and place of the
hearing. R.C. 3767.04(B)(3). If the respondent moves to continue the hearing, "the
requested [preliminary] injunction shall be granted as a matter of course." Id. If the
2 R.C. 3767.04 uses the term "temporary injunction" rather than the more modern term "preliminary
injunction." The two terms, however, are equivalent. State ex rel. Pizza v. Rayford, 62 Ohio St.3d 382,
383 (1992), fn. 1. To avoid confusion between a TRO and a "temporary injunction," we will use the term
"preliminary injunction" throughout this decision.
No. 14AP-132 5
hearing goes forward and, at the hearing, the relator satisfies the trial court that he or she
can sustain the allegations of the complaint, the court must issue a preliminary injunction
restraining the respondent and any other person from continuing the nuisance. Id. In
addition to ordering a halt to the nuisance, the preliminary injunction must continue the
restraining order in effect or, if no restraining order exists, restrain the respondents and
others from removing or interfering with the personal property and contents of the place
where the nuisance is alleged to exist. Id. Finally, unless the owner of the nuisance shows
that he has abated the nuisance or enforced his rights under R.C. 3767.10,3 the
preliminary injunction must also "clos[e] the place against its use for any purpose of
lewdness, assignation, prostitution, or other prohibited conduct until a final decision is
rendered on the [nuisance] complaint." R.C. 3767.04(B)(3). Importantly, "[t]he scope of
this temporary closure order is limited to the prevention of prohibited activity and does
not authorize the court to order an 'effectual closing * * * against its use for any purpose'
* * * via padlocking or otherwise." State ex rel. Pizza v. Rezcallah, 84 Ohio St.3d 116, 121
(1998), quoting R.C. 3767.06(A).
{¶ 14} A property owner may preempt the entry of a preliminary injunction or seek
its termination by posting a bond for the full value of the property, paying the costs of the
action, and promising to immediately "abate the nuisance and prevent it from being
established or kept" until a decision on the nuisance complaint. R.C. 3767.04(C). The
court must refrain from issuing or dissolve the preliminary injunction if the owner
complies with these requirements and the court is satisfied of the owner's good faith. Id.{¶ 15} The relator must prove his case at trial.4 If the relator succeeds, the trial
court must enter a judgment that (1) "perpetually enjoins the [respondent] and any other
person from further maintaining the nuisance at the place complained of and the
[respondent] from maintaining the nuisance elsewhere," R.C. 3767.05(D), and (2) orders
the abatement of nuisance, R.C. 3767.06(A). Rezcallah at 122 (holding that the entry of a
permanent injunction pursuant to R.C. 3767.05(D) and 3767.06(A) is mandatory).
3 Pursuant to R.C. 3767.10, when a tenant or occupant uses a building for "the purposes of lewdness,
assignation, or prostitution," the owner may void the tenant's or occupant's title to the premises and
immediately retake possession.
4 We discuss below the elements a relator must prove and the applicable degree of proof.
No. 14AP-132 6
{¶ 16} Pursuant to R.C. 3767.06(A), where the owner has not provided a bond
prior to the trial, and where the trial court has not issued a temporary closure order, the
judgment must also order "the effectual closing of the place where the nuisance is found
to exist against its use for any purpose and keeping it closed for a period of one year." If
the owner has furnished a bond, the judgment must require the renewal of the bond for
one year. Id. If the trial court previously issued a preliminary injunction that included a
closure order, the judgment must continue the closure against all use for one year from
the date of the judgment. Id.; State ex rel. Miller v. Nu-Look Bookstore, 10th Dist. No.
90AP-939 (Apr. 30, 1991) (holding that "where a court finds a nuisance, it is to issue an
order closing the premises against their use for any purpose regardless of whether a
temporary order was granted or not" and " 'continue for one year' means close the
premises for one year from the date final judgment is entered").
{¶ 17} Additionally, the judgment must "direct the removal from the place where
the nuisance is found to exist of all personal property and contents used in conducting or
maintaining the nuisance." R.C. 3767.06(A). The personal property and contents
removed must be sold at a public auction, with the proceeds paying the costs associated
with the nuisance action. R.C. 3767.06(C) to (F). Finally, the judgment must impose a
tax of $300 against each person who maintained the nuisance. R.C. 3767.08. The tax,
however, may not be levied against an owner of real property who has shown that the he
or she has permanently abated the nuisance. Id.{¶ 18} Turning to the case at bar, we will begin our analysis with appellants'
second assignment of error. By that assignment of error, they argue that the manifest
weight of the evidence sustains their contention that they did not acquiesce to the
criminal conduct occurring at the Columbus Inn and Suites. We disagree.
{¶ 19} As stated above, an owner of an interest in a nuisance is guilty of
maintaining a nuisance. R.C. 3767.02(A). As used in R.C. Chapter 3767, the word
"nuisance" means: (1) "[t]hat which is defined and declared by statutes to be a nuisance,"
and (2) "[a]ny place in or upon which lewdness, assignation, or prostitution is conducted,
permitted, continued, or exists." R.C. 3761.01(C)(1) and (2). Additionally, R.C. 3719.10
states that "[p]remises or real estate * * * on which a felony violation of Chapter 2925. or
No. 14AP-132 7
3719. of the Revised Code occurs constitute a nuisance subject to abatement pursuant to
Chapter 3767. of the Revised Code."
{¶ 20} In a civil action brought under R.C. 3767.03, the relator bears the burden of
proving his case by clear and convincing evidence. State ex rel. Herring v. Bean, 6th Dist.
No. L-01-1463, 2002-Ohio-4350, ¶ 10; State ex rel. Freeman v. Pierce, 61 Ohio App.3d
663, 670 (2d Dist.1991). Clear and convincing evidence of the existence of a nuisance
suffices to prove the property owner guilty of maintaining a nuisance. Rezcallah at 88.
Further evidence is necessary, however, to obtain a permanent injunction closing the
premises that constitutes the nuisance. For a court to order the closure of the premises
against all purposes, the relator must also prove by clear and convincing evidence that the
owner acquiesced to or participated in the creation and/or perpetuation of the nuisance.
Rezcallah at 94; Cincinnati ex rel. Cosgrove v. Grogan, 141 Ohio App.3d 733, 746 (1st
Dist.2001). If the trial court finds the relator's evidence unpersuasive or insufficient, and
the court instead determines "that a defendant owner acted in good faith, was innocent of
any acquiescence to or participation in the conduct establishing the nuisance, and took
prompt action to abate the nuisance," then the court may not issue a closure order under
R.C. 3767.06(A). Rezcallah at 94.
{¶ 21} Pursuant to R.C. 3767.05(A), "evidence of the general reputation of the
place where the nuisance is alleged to exist or an admission or finding of guilt of any
person under the criminal laws against prostitution, lewdness, assignation, or other
prohibited conduct at the place * * * is prima-facie evidence of * * * knowledge of and of
acquiescence and participation in the nuisance on the part of the person charged with
maintaining it." Thus, a relator may meet his burden of proving acquiescence or
participation with three different types of evidence: direct evidence, evidence of a
property's general reputation, and evidence of convictions resulting from activities at the
site of the alleged nuisance. State ex rel. Waldick v. Howard, 3d Dist. No. 1-11-33, 2012-
Ohio-404, ¶ 25.
{¶ 22} Here, appellants do not dispute that the city attorney proved that the
Columbus Inn and Suites constituted a nuisance. Appellants, instead, contend that they
did not know of, and consequently did not acquiesce in, the criminal activity that made
the Columbus Inn and Suites a nuisance.
No. 14AP-132 8
{¶ 23} Appellants initially attack the validity of R.C. 3767.05(A). According to
appellants, Rezcallah requires a relator to provide direct evidence of acquiescence or
participation and precludes reliance on general reputation and criminal convictions as
prima facie evidence. We are not persuaded. In Rezcallah, the Supreme Court of Ohio
did not discuss the various methods of proof, much less negate R.C. 3767.05(A). We thus
conclude that the city attorney could rely on prima facie evidence to prove appellants'
acquiescence to the criminal conduct that constituted the nuisance at the Columbus Inn
and Suites.
{¶ 24} Appellants next maintain that the manifest weight of the evidence does not
support the trial court's conclusion that appellants acquiesced to the criminal activity that
formed the nuisance. Appellate courts will not reverse judgments supported by some
competent, credible evidence as being against the manifest weight of the evidence. C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280 (1978). " 'Weight of the evidence
concerns "the inclination of the greater amount of credible evidence, offered in a trial, to
support one side of the issue rather than the other. * * * Weight is not a question of
mathematics, but depends on its effect in inducing belief." ' " (Emphasis omitted.)
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12, quoting State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Black's Law Dictionary 1594 (6th
Ed.1990). Thus, in reviewing a judgment under the manifest-weight standard, an
appellate court weighs the evidence and all reasonable inferences, considers the
credibility of witnesses, and determines whether, in resolving conflicts in the evidence, the
finder of fact clearly lost its way. Eastley at ¶ 20. In so applying the standard, the
appellate court "must always be mindful of the presumption in favor of the finder of fact."
Id. at ¶ 21.
{¶ 25} Here, the city attorney offered both prima facie and direct evidence to prove
appellants' acquiescence. First, the city attorney presented evidence of the Columbus Inn
and Suites' poor reputation through the testimony of three Columbus police officers and a
local resident, all of whom were familiar with the hotel. Officer Scott Clinger stated that
the Columbus Inn and Suites was "absolutely the worst place that I have found in my
entire career * * * because [of] the conditions of the hotel, the people that were staying
there, [and] the things that were going on." (Tr. 214.) Officer Andrew Ward testified that
No. 14AP-132 9
the Columbus Inn and Suites had a reputation as "a hub of * * * prostitution [and] drugs."
(Tr. 271.) According to Officer Karl Shaw, the Columbus Inn and Suites had the
reputation as the "hotel [to go to] if you wanted to buy drugs or if you wanted to sell drugs
* * *, or if you are a prostitute, that's where you would go to get a room." (Tr. 274-75.)
Brendon Boos, the vice president of the Salem Civic Association and secretary of the
Northland Community Council, testified that, "[w]ithout a doubt[,] [the general
reputation of the Columbus Inn and Suites] is negative. The reputation of it is to the point
that it actually drags down the rest of the properties around it. You don't have to spend a
lot of time there to feel that it is a blight on the community." (Tr. 370.)
{¶ 26} The city attorney also presented evidence of prostitution-related convictions
arising from activities that occurred at the Columbus Inn and Suites. Officer Ward
testified that on January 27, 2012, while working undercover, he met Michael Bernard at
the southwest stairwell of the Columbus Inn and Suites. Bernard procured a prostitute,
Victoria Eiter, for Officer Ward. Bernard and Eiter were arrested and charged as a result
of this incident. Bernard pleaded guilty to attempted procuring, a violation of Columbus
City Code 2323.02 and 2307.23. Eiter pleaded guilty to soliciting, a violation of Columbus
City Code 2307.24.
{¶ 27} Officer Shaw testified to a second undercover investigation that occurred on
March 12, 2012. An undercover police officer called a phone number posted on an online
advertisement for escort services and was directed to a room at the Columbus Inn and
Suites. At the hotel room, the undercover police officer was solicited to patronize a
prostitute. Based on these events, three individuals each pleaded guilty to unlawful
restraint, a violation of R.C. 2905.03, and promoting prostitution, a violation of R.C.
2907.22.
{¶ 28} In addition to presenting prima facie evidence of acquiescence, the city
attorney also adduced direct evidence that Mohammad Ashraf knew of and acquiesced to
criminal activity at the Columbus Inn and Suites. On November 3, 2011, Officers Clinger
and Larry Geis hand delivered a letter to Ashraf informing him that, on October 12, 2011,
the police had obtained evidence of illegal drug activity and prostitution that had occurred
at the Columbus Inn and Suites. The letter stated, "Please be aware that if this illegal
activity continues at your property, it may result in your property being subject to an
No. 14AP-132 10
abatement action and declared a nuisance." Ashraf signed the police copy of the letter to
acknowledge receipt of it. Virendra Garg, who was operating the Columbus Inn and
Suites, received an identical letter. After receiving the letter, Garg met with Ashraf and
proposed that they jointly hire a security guard to patrol their hotels. Ashraf refused.
{¶ 29} In early March 2013, Garg showed Ashraf his copy of the search warrant
that the police executed at the Columbus Inn and Suites on February 21, 2013. The search
warrant stated that a confidential informant purchased heroin from an individual in room
144 of the Columbus Inn and Suites. Ashraf did not say anything in response to the
search warrant.
{¶ 30} The police subsequently searched the Columbus Inn and Suites pursuant to
a warrant on May 30, 2013. The May warrant was based on a confidential informant's
purchase of heroin from an individual in room 212 of the Columbus Inn and Suites. Garg
talked with Ashraf about the May warrant. During that conversation, Garg again
suggested that they jointly hire a security guard. Ashraf again refused.
{¶ 31} Officer Clinger testified that throughout 2012 and 2013 he gave oral reports
about criminal activity in the area of State Route 161 during the monthly meetings of the
161 Task Force. Ashraf was a member of the 161 Task Force. Ashraf was present at
meetings where Officer Clinger discussed the crime occurring at the hotels located at the
intersection of Interstate 71 and State Route 161. According to Officer Clinger, he
specifically targeted the Columbus Inn and Suites in those discussions "because that was
our main focus, and that was the worst [hotel] on the table over and over in many
community meetings." (Tr. 224.)
{¶ 32} Ashraf never approached Officer Clinger, who is a community liaison
officer, for assistance with or suggestions for dealing with the criminal activity at the
Columbus Inn and Suites. In fact, prior to the filing of the complaint, Ashraf admittedly
took no affirmative action to stem the criminal activity at Columbus Inn and Suites.
Ashraf's only response was to obtain Garg's assurance that he was taking all possible steps
to deal with the situation.
{¶ 33} To counter this evidence, Ashraf first claims ignorance. At trial, Ashraf
testified that he never witnessed any criminal activity when he visited the Columbus Inn
and Suites. Ashraf also stated that he was unaware of the incidents of drug sales and
No. 14AP-132 11
prostitution that the Columbus police officers testified about. The trial court did not
believe Ashraf; it concluded instead that Ashraf knew "full well of the serious and ongoing
criminal activities taking place at Columbus Inn and Suites." (R. 50, at 6.) We concur
with the trial court's assessment of Ashraf's credibility. Ashraf worked six to seven days a
week at the neighboring hotel and his hotel on the other side of Interstate 71. He drove by
Columbus Inn and Suites approximately once a day, and, according to Garg, he visited
about once a month to collect Garg's monthly payment under the land installment
contract. Given the frequent police presence at the Columbus Inn and Suites,5 the
prostitutes and drug dealers that habitually loitered outside the premises, and the
multiple drug needles that could be found scattered around the premises, we find it hard
to accept that Ashraf did not know of the chronic criminal activity at the Columbus Inn
and Suites.
{¶ 34} Next, Ashraf asserts that there was nothing that he could do to abate the
criminal activity at the Columbus Inn and Suites, so he should not be faulted for his
failure to act. We recognize that Garg, not Ashraf, controlled the operation of the
Columbus Inn and Suites. However, Ashraf ignores the options that were open to him:
asking the police for advice regarding what he and Garg could do to combat the illegal
activity, and asking Garg to implement any police suggestions. Officer Clinger testified to
a number of tactics a hotel owner can employ in response to criminal activity, including
hiring a security guard or special-duty police officer, refusing to rent rooms to known
criminals or troublemakers, asking at check-in for identification from everyone who will
be visiting a room and reporting anyone else on the property to the police as a trespasser,
and refusing to rent rooms for long-term stays. Ashraf neither sought out nor asked Garg
to use these tactics. Moreover, Ashraf did not even ask Garg if he was taking any anti-
crime measures. When Garg took the initiative and requested that Ashraf join him in
hiring a security guard, Ashraf turned him down.
{¶ 35} In sum, we find abundant competent, credible evidence supports the trial
court's determination that appellants acquiesced in the criminal activity that created and
5 As we stated above, the Columbus police made 497 runs to the Columbus Inn and Suites from January
2012 to June 2013. Officer Clinger characterized this number of runs as "extremely high" and a
significant drain on police resources. (Tr. 216.)
No. 14AP-132 12
perpetuated the nuisance at the Columbus Inn and Suites. Accordingly, we overrule
appellants' second assignment of error.
{¶ 36} By appellants' first assignment of error, they argue that the trial court erred
in entering the TRO that forcibly removed the occupants of the Columbus Inn and Suites
and closed the hotel. Appellants contend that R.C. 3767.04(B)(2) provides the only
authority for the issuance of a TRO in a civil nuisance action, and thus, the city attorney
could not seek, and the trial court could not grant, a TRO under Civ.R. 65.
{¶ 37} We agree with appellants that the trial court relied on Civ.R. 65, rather than
R.C. 3767.04(B)(2), to grant the TRO. Pursuant to R.C. 3767.04(B)(2), a trial court may
grant a TRO to prevent the removal of personal property and contents from the place of
the alleged nuisance. The TRO at issue here granted much broader injunctive relief.
Consequently, in granting it, the trial court must have relied on Civ.R. 65(A), which does
not limit the type of relief the court may order in a TRO.
{¶ 38} Although we concur with appellants that Civ.R. 65(A) served as the
authority for granting the TRO, we disagree with them regarding the duration of the TRO.
Both appellants and the city attorney appear to believe that the TRO remained in effect
until the trial court entered the January 21, 2014 final judgment. They are incorrect. By
its terms, the TRO "remain[ed] in effect until [June 26, 2013] or as otherwise ordered by
this Court." (R. 6, at 8.) The trial court never issued an order extending the length of the
TRO.6 Thus, the TRO expired on June 26, 2013.
{¶ 39} The city attorney points out that he also moved for a preliminary injunction
pursuant to R.C. 3767.04, and, because appellants requested and received a continuance
of the hearing on that motion, R.C. 3767.04(B)(3) mandated that the trial court grant the
preliminary injunction. The city attorney correctly recites the law. The trial court,
however, never granted the city attorney's motion and never issued a preliminary
injunction. Accordingly, after the expiration of the TRO on June 26, 2013, no closure
order existed until the trial court ordered a one-year closure of the premises in the
January 21, 2014 final judgment.
6 We note that Civ.R. 65(A) restricts a trial court's ability to lengthen the duration of a TRO. "Under
Civ.R. 65(A), a temporary restraining order is effective for up to fourteen days, subject to renewal for one
additional term of fourteen days. If renewed, a TRO absolutely expires twenty-eight days from its original
issuance unless the adverse party consents to a longer term." Rayford, 62 Ohio St.3d at 386, fn. 4.
No. 14AP-132 13
{¶ 40} Once the TRO expired, the controversy surrounding the entry of that order
became moot. State ex rel. Celebreeze v. Bd. of Cty. Commrs. of Allen Cty., 32 Ohio St.3d
24, 26 (1987), fn. 2 ("The injunction in question is no longer in force, having expired upon
the resolution of the case by the trial court, and the issue of its propriety is therefore
moot."); McClead v. McClead, 4th Dist. No. 06CA67, 2007-Ohio-4624, ¶ 14 ("[T]he
expiration of a challenged order renders an appeal of that order moot."). Issues are moot
when they present no actual, genuine, live controversy, the decision of which can
definitely affect existing legal relations. Kormanik v. Cooper, 195 Ohio App.3d 790, 2011-
Ohio-5617, ¶ 12 (10th Dist.). Ohio courts exercise restraint in cases that do not present
actual controversies. Tschantz v. Ferguson, 57 Ohio St.3d 131, 133 (1991). If while an
action is pending, an event occurs that renders it impossible for a court to grant any
effectual relief, the court will generally dismiss the action. Id., quoting Miner v. Witt, 82
Ohio St. 237 (1910), syllabus.
{¶ 41} We suspect that appellants would argue that a live controversy remains
because we could compensate them for an improperly granted TRO by subtracting the
number of days the TRO was in force from the one-year closure period ordered in the
January 21, 2014 final judgment. We reject this argument. R.C. 3767.06(A) mandates the
effectual closing of the place where the nuisance is found to exist "for a period of one
year." If we altered the one-year period, we would contravene statutory law. We cannot
do that. Accordingly, we conclude that the expiration of the TRO mooted any question of
its propriety, and we overrule as moot appellants' first assignment of error.
{¶ 42} For the foregoing reasons, we overrule as moot appellants' first assignment
of error, and we overrule appellants' second assignment of error. We affirm the judgment
of the Franklin County Municipal Court.
Judgment affirmed.
SADLER, P.J., and LUPER SCHUSTER, J., concur.