Concrete, Inc. v. Willowick , 2020 Ohio 71 ( 2020 )

[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.
3