[Cite as Ardire v. Westlake City Council, 2013-Ohio-3533.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99347



                               MARK ARDIRE, ET AL.

                                                             PLAINTIFFS-APPELLANTS

                                                     vs.

                                CITY OF WESTLAKE
                                CITY COUNCIL, ET AL.
                                                             DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                 Administrative Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-759816

        BEFORE: Stewart, A.J., Rocco, J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                            August 15, 2013
ATTORNEY FOR APPELLANTS

Gerald W. Phillips
Phillips & Co., L.P.A.
P.O. Box 269
Avon Lake, OH 44012


ATTORNEYS FOR APPELLEES

John D. Wheeler
Director of Law

BY: Robin R. Leasure
Assistant Director of Law
City of Westlake
27700 Hilliard Boulevard
Westlake, OH 44145
MELODY J. STEWART, A.J.:

       {¶1} Appellants Mark and Colby Ardire filed this administrative appeal against the

city of Westlake after the city adopted a development plan for a new middle school that

did not make specific proposals for dealing with traffic, noise abatement, and landscaping

for a proposed driveway to be located adjacent to their property. The Ardires did not file

their assignments of error within 20 days of the record being filed, so the city asked the

court to dismiss the appeal. The court granted the Ardires an additional 14 days to file

their assignments of error, but stated its “intent to dismiss for want of prosecution” and

notified the Ardires that a failure to file their assignments of error “may result in the

dismissal of the appeal” within the time ordered. When the deadline for filing their

assigned errors arrived, the Ardires sought an extension of time and also objected to the

composition of the transcript of proceedings, claiming that the city provided an

incomplete record. The city filed a second motion to dismiss, arguing that the Ardires

had yet to file their assignments of error. The Ardires did not respond to this motion nor

did the court rule on the motion for an extension of time or the objection to the record.

Eight months later, the court granted as “unopposed” the motion to dismiss on grounds

that the Ardires had yet to comply with the order to file assignments of error.

                                             I

       {¶2} The first issue we consider is whether this appeal has been rendered moot by

the completion of the driveway. The Ardires did not ask the court to stay construction of
the driveway after it dismissed their appeal, and the city now maintains that the driveway

has been “substantially constructed.” The Ardires maintain that the city has yet to install

mandatory buffering, landscaping, and drainage along the property, so construction is not

complete.

       {¶3} The mootness doctrine has its roots in the idea that courts decide actual

controversies, not abstract propositions. If events transpire post-judgment that make it

impossible for an appellate court to grant any effectual relief, the appellate court has

nothing to decide and the appeal is rendered moot. Miner v. Witt, 82 Ohio St. 237, 92

N.E. 21 (1910), syllabus. Our desire to avoid issuing decisions on abstract propositions

is so strong that mootness questions are one of the rare times when the parties are allowed

to supplement the record on appeal, but only for the purpose of establishing whether an

issue is moot. See, e.g., Gajewski v. Bd. of Zoning Appeals, 8th Dist. Cuyahoga No.

91101, 2008-Ohio-5270, ¶ 20.

       {¶4} In construction cases, the courts have held that “where an appeal involves the

construction of a building or buildings and the appellant fails to obtain a stay of execution

of the trial court’s ruling and construction commences, the appeal is rendered moot.”

Schuster v. Avon Lake, 9th Dist. Lorain No. 03CA008271, 2003-Ohio-6587, ¶ 8. Both

sides have supplemented the record on appeal with photographs to document their

respective positions on whether the project is complete: the city submitted photographs

to show that, as of March 2013, the driveway at the center of the controversy has been
substantially completed; the Ardires submitted photographs to show that neither buffering

for noise abatement nor drainage had been installed.

       {¶5} As we understand them, the Ardires’ objections to the middle school plan

were not based on the driveway itself, but to plans adopted by the city that did not

comport with city ordinances requiring the plan to account for traffic flow, landscape

buffering to abate noise from vehicles using that driveway, and flooding issues caused by

the removal of trees during construction of the driveway. The substantial completion of

the driveway is enough for us to find that this appeal is moot as to the construction of the

driveway itself, Pinkney v. Southwick Investments, LLC, 8th Dist. Cuyahoga Nos. 85074

and 85075, 2005-Ohio-4167, ¶ 13, but the issues the Ardires raise in this appeal are

separate and distinct from the construction of the driveway. The supplemental evidence

they offered suggests that the landscaping and water control measures are not complete,

so they are not moot.

                                             II

       {¶6} The Ardires raises a total of 11, overlapping assignments of error. The

substance of these assigned errors flow from the premise that the court denied them the

opportunity to present their evidence before the city council. From this premise they

argue that (1) their inability to offer evidence meant that the record was incomplete; (2)

with an incomplete record before it, the court was required to hold an evidentiary hearing;

and (3) until a complete record was before the court, they were under no obligation to file

assignments of error, so the decision to dismiss their appeal was premature.
                                              A

       {¶7} Once the complete transcript of an administrative proceeding is filed with the

clerk of the court, the appellant has 20 days to file assignments of error and a brief.

Loc.R. 28(A) of the Court of Common Pleas of Cuyahoga County, General Division.

The court has discretion under the rules to “extend or shorten the time within which

assignments of error or briefs shall be filed.” Loc.R. 28(D). The failure to file a brief in

an administrative appeal is a procedural default tantamount to a want of prosecution. See

Davis v. Cleveland, 8th Dist. Cuyahoga No. 92336, 2009-Ohio-4717, ¶ 12. As with

dismissals for want of prosecution under Civ.R. 41(B)(1), the court sitting in its appellate

capacity in an administrative appeal must give notice of its intent to dismiss for failure to

file a brief. Id. at ¶ 20.

       {¶8} The city filed the record on October 24, 2011, but the Ardires did not file

assignments of error within 20 days as required by Loc.R. 28(A). The city made its first

motion to dismiss the appeal on February 13, 2012. Even though the Ardires did not

oppose this motion to dismiss the appeal, the court granted them an additional 14 days

under Loc.R. 28(D), or until March 20, 2012, to file their assignments of error or risk

dismissal. When that deadline arrived, the Ardires filed motions objecting to the record

and seeking an extension of time. Their objections to the record on appeal were that the

city failed to file a “verbatim” record of the proceedings and that the city council failed to

file any conclusions of fact. They thus requested an evidentiary hearing to present

additional evidence and cross-examine witnesses. They also sought an order extending
the time in which to file their assignments of error until after a complete record could be

compiled.

       {¶9} The city objected to the Ardires’ assertions that the record was incomplete.

It noted that the proceedings before the city council had been recorded on video and that a

DVD containing that video was in the record. It also noted that the Ardires did not offer

any evidence to the city council nor did they insist on the right to cross-examine any other

person who appeared at the council meeting. The city also filed a motion asking the

court to dismiss the appeal for failure to file a brief as earlier ordered by the court.

       {¶10} The Ardires did not respond to the city’s motion to dismiss the appeal nor

did they file assignments of error in support of their appeal. Eight months later, the court

granted the motion to dismiss the appeal as “unopposed.”

       {¶11} There is no question that the Ardires did not file assignments of error within

20 days of the record having been filed. The court granted the Ardires an extension of

time to file their assignments of error, warning them that their failure to do so might result

in dismissal. See Ohio Furniture Co. v. Mindala, 22 Ohio St.3d 99, 101, 488 N.E.2d 881

(1986). On this basis alone, we can find that the court’s decision to dismiss the Ardires’

appeal after they failed to file a brief was consistent with our decision in Davis.

       {¶12} In addition, we find no basis for concluding that the Ardires’ objections to

the record tolled the time in which to file their assignments of error. The record had

been on file for five months before the Ardires objected to it. What is more, that

objection only came after the court granted them an extension of time in which to file the
assignments of error. Tellingly, the court granted the extension on its own initiative

because the Ardires did not seek any extension of time to file those assignments of error

— they failed to respond at all to the city’s first motion to dismiss the administrative

appeal.

                                            B

       {¶13} We also find no basis for the Ardires’ argument that the “incomplete” nature

of the record excused them from filing assignments of error. The record transmitted to

the court was complete in all respects.

       {¶14} The subject of the Ardires’ complaint about the completeness of the

transcript centers on a June 16, 2011 city council meeting at which council approved the

middle school development plan. They maintain that the transcript on appeal does not

contain an accurate recitation of the more than five minutes of remarks their attorney

made at the meeting of the city council. The record of the council meeting, prepared by

the clerk of the city council, summarized the attorney’s remarks as follows:

       Mr. Gerald Phillips * * *, attorney representing a Bassett Road property
       owner, enumerated various concerns regarding the middle school
       development plans that his client wanted to be addressed, including
       buffering, tree preservation plans, storm water drainage, traffic issues,
       illumination plan and compliance with Westlake code sections.

       {¶15} The Ardires claim that the clerk’s summary of their attorney’s presentation

failed to capture the entirety of his remarks and that they should have been allowed to

supplement the record with their verbatim presentation.
       {¶16} The flaw with the Ardires’ argument is that they equate the requirement of a

complete “transcript” as being the same thing as a written transcription of testimony.

R.C. 2506.02 governs the nature of the record for purposes of an administrative appeal

and defines a “complete” transcript as the “original papers, testimony, and evidence

offered, heard, and taken into consideration in issuing the final order, adjudication, or

decision.” This is in contrast to App.R. 9(B)(6), which requires a written transcript of all

proceedings of record, regardless of whether they were recorded by stenography, audio

recording device, or video recording device.

       {¶17} The video recording of the city council meeting was an original document

that captured the proceedings, including the presentation by the Ardires, and thus

constituted part of the original papers for purposes of the record.           Jankowski v.

Streetsboro, 11th Dist. Portage No. 1573, 1986 Ohio App. LEXIS 5502 (Jan. 31, 1986).

Although the video could have been transcribed and included in the record, it was not a

necessary condition for completing the record on appeal. Indeed, the Ardires make no

argument that they were in any way inhibited in their ability to prosecute the

administrative appeal simply because the city council meeting was recorded on video as

opposed to being transcribed.

       {¶18} In addition, the Ardires make no argument that the video included in the

record transmitted to the court was not “authentic, accurate, and trustworthy.” State v.

Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 109, citing State v.

Rogan, 94 Ohio App.3d 140, 148, 640 N.E.2d 535 (2d Dist.1994). We have held that the
transcript from an administrative agency need only contain the “gist of the arguments and

comments at the hearing in question” and only substantial omissions or gaps in the

transcript will warrant hearing additional evidence. Ardire v. Westlake Planning Comm.,

8th Dist. Cuyahoga No. 61636, 1993 Ohio App. LEXIS 620 (Feb. 4, 1993), citing

Franklin Twp. v. Marble Cliff, 4 Ohio App.3d 213, 447 N.E.2d 765 (10th Dist.1982).

      {¶19} Because the video recording is a verbatim memorialization of what

transpired at the city council meeting, we reject the Ardires’ argument that the court

should have conducted an evidentiary hearing under R.C. 2506.03. That section states

that the court hearing an appeal from an administrative decision is confined to the

transcript filed with the court unless the transcript does not contain a report of all the

evidence admitted at the hearing. As previously noted, the Ardires’ objections were

based on the clerk of council’s summary of the meeting.          That summary, read in

conjunction with the video recording of the city council meeting, was a proper record for

purposes of R.C. 2506.02.

                                            C

      {¶20} R.C. 2506.03 also allows the court to hear additional evidence if the

appellant or the appellant’s attorney was not allowed to appear in opposition to the order

being appealed and allowed to, among other things, present the appellant’s position,

arguments, and contentions, along with any evidence, cross-examination, and proffers of

evidence. The Ardires argue that the court erred by failing to hear additional evidence

because they were prohibited from offering evidence before the city council.
       {¶21} The record does show that the city council limited the time allowed to the

Ardires’ attorney when addressing the council, as it did with all others who appeared.

Although each person addressing the city council was limited to five minutes, the

president of the city council did allow the Ardires’ attorney additional time to speak

because it was thought that the attorney was addressing mutual concerns held by residents

affected by the middle school construction. The attorney may not have been allowed as

much time as he desired to present his clients’ case, but at no point did the Ardires seek to

supplement his presentation to the city council.

       {¶22} The Ardires had no evidence of any kind to offer nor did they make any

request to cross-examine witnesses. Theirs was not a case against the middle school

development plan, but a position statement that the city council not adopt the middle

school development plan without first ensuring compliance with relevant city code

sections relating to traffic, landscape buffering, lighting, and water retention. Viewed in

this manner, the Ardires’ arguments were prospective in nature and it is difficult to see

what evidence, if any, they could have offered beyond the citations they made to relevant

city code provisions during their presentation.

       {¶23} For these same reasons, we reject the Ardires’ arguments that the record was

incomplete because the city council failed to comply with the R.C. 2506.03(A)(5)

requirement that the administrative body “file with the transcript conclusions of fact

supporting the final order, adjudication, or decision.” The city council was not sitting as

factfinder nor was the Ardires’ presentation one that required any resolution of competing
“facts.” The Ardires requested nothing more than that the plans adopted by the city

comply with relevant building codes.

      {¶24}    In conclusion, the court had no need to hear additional evidence to

supplement the record because the record provided by the city was complete in all

respects. That being the case, the Ardires’ objection to the composition of the record

lacked merit and did not excuse them from filing their assignments of error in a timely

manner. The court did not err by dismissing the appeal for want of prosecution. The

assignments of error are overruled.

      {¶25} Judgment affirmed.

      It is ordered that appellees recover of appellants their costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.           A      certified

copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of

Appellate Procedure.




MELODY J. STEWART, ADMINISTRATIVE JUDGE

KENNETH A. ROCCO, J., CONCURS;

EILEEN A. GALLAGHER, J., DISSENTS WITH
SEPARATE OPINION
EILEEN A. GALLAGHER, J., DISSENTING:

        {¶26} I find that this case is improperly before this court and should be dismissed.

        {¶27} The trial court dismissed this case pursuant to Civ.R. 41(A)(1)(a), and the

case, therefore, was subject to refiling within the appropriate statute of limitations.

        {¶28} Further, I find that there were no reasonable grounds for the appeal and

would order that appellees recover from appellants costs taxed herein as well as attorney

fees.
