[Cite as Heaney v. Crystal Clinic Orthopaedic Ctr., L.L.C., 2020-Ohio-894.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

RYAN HEANEY, et al.                                         C.A. No.          29579

        Appellants

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
CRYSTAL CLINIC ORTHOPAEDIC                                  COURT OF COMMON PLEAS
CENTER, LLC, et al.                                         COUNTY OF SUMMIT, OHIO
                                                            CASE No.   CV-2019-04-1247
        Appellees

                                 DECISION AND JOURNAL ENTRY

Dated: March 11, 2020



        CALLAHAN, Presiding Judge.

        {¶1}     Appellants, Ryan and Ashley Heaney, Dale and Carol Becker, and Mohamed and

Mouna Katirji (“the Property Owners”) appeal a judgment that dismissed their claims against

Crystal Clinic Orthopaedic Center and CC Embassy LLC (“Crystal Clinic”).                 This Court

dismisses the appeal as moot.

                                                       I.

        {¶2}     Crystal Clinic planned construction of a facility on Embassy Parkway in Fairlawn.

The Property Owners are residents of two nearby subdivisions whose property abuts the

construction site. They filed a complaint against Crystal Clinic seeking the enforcement of

setback and height restrictions through declaratory judgment and injunctive relief. The Property

Owners requested a temporary restraining order halting the construction while the case was

pending, but the trial court denied the motion. Crystal Clinic moved to dismiss the complaint for

failure to join necessary parties and to dismiss Count Two of the complaint, which addressed the
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height restrictions, for lack of standing. In a separate motion, Crystal Clinic also moved to

dismiss the entire complaint as moot, arguing that construction at the site had commenced.

While these matters were pending before the trial court, Crystal Clinic also supplemented its

motion to dismiss for mootness with periodic updates regarding the progress of construction.

       {¶3}     The case proceeded to a hearing on a preliminary injunction before a magistrate,

who also took Crystal Clinic’s two motions to dismiss under advisement. The magistrate’s

decision denied the preliminary injunction, but also denied Crystal Clinic’s motions to dismiss

for failure to join necessary parties and for mootness. The magistrate did not specifically address

Crystal Clinic’s argument regarding standing.        Crystal Clinic objected to the magistrate’s

decision, but the Property Owners did not do so.

       {¶4}     The trial court upheld the magistrate’s decision to deny the preliminary injunction

and specifically upheld certain of the magistrate’s findings, but rejected the magistrate’s decision

with respect to Crystal Clinic’s motions to dismiss. The trial court dismissed Count One of the

complaint for failure to join necessary parties and dismissed Count Two of the complaint based

on the conclusion that the Property Owners lacked standing, thus dismissing the complaint in its

entirety. Although these decisions fully resolved the claims at issue, the trial court also rejected

the magistrate’s conclusion with respect to Crystal Clinic’s motion to dismiss the claims as moot,

concluding that because construction had commenced, the complaint should also be dismissed

for that reason.

       {¶5}     The Property owners filed this appeal.       They did not, however, pursue an

injunction pending disposition of the appeal under App.R. 7(A). While the appeal has been

pending, Crystal Clinic filed a series of affidavits with this Court that document the progress of

construction.
                                                3


                                                II.

       {¶6}    The mootness doctrine prevents courts from deciding cases in which no

controversy remains. In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, ¶ 37. Consequently, this

Court can only “decide actual controversies by a judgment which can be carried into effect” and

cannot “give opinions upon moot questions or abstract propositions, or * * * declare principles or

rules of law which cannot affect the matter in issue in the case before it.” Miner v. Witt, 82 Ohio

St. 237, 238 (1910), quoting Mills v. Green, 159 U.S. 651, 633 (1895). This Court must dismiss

an appeal as moot when it is impossible for us to grant meaningful relief to the appellant. See

Miner at syllabus. For purposes of determining whether an appeal is moot, this determination

focuses on the relief that the appellant seeks from the Court and whether the subject matter of the

case remains subject to the Court’s control. See, e.g., Akron Dev. Fund I, Ltd. v. Advanced

Coatings Internatl., Inc., 9th Dist. Summit No. 25375, 2011-Ohio-3277, ¶ 22-29.

       {¶7}    In the context of construction disputes, this Court has observed that once

construction begins, meaningful relief is unavailable because “the damage has already been done

[and] the land has been permanently altered.” Neighbors for Responsible Land Use v. Akron, 9th

Dist. Summit No. 23191, 2006-Ohio-6966, ¶ 11. This Court has therefore held that when

construction commences because an appellant failed to seek a stay of execution or an injunction

pending appeal, the appeal is moot. See id. at ¶ 12-13; Poulson v. Wooster City Planning

Comm., 9th Dist. Wayne No. 04CA0077, 2005-Ohio-2976, ¶ 7; Schuster v. City of Avon Lake,

9th Dist. Lorain No. 03CA008271, 2003-Ohio-6587, ¶ 8; Frank Novak & Sons, Inc. v. Avon

Lake Bd. of Edn., 9th Dist. Lorain No. 01CA007835, 2001 WL 1545505, *2 (Dec. 5, 2001).

Other courts have reached the same conclusion. Smetzer v. Catawba Island Twp. Bd. of Zoning

Appeals, 6th Dist. Ottawa No. OT-17-033, 2018-Ohio-4238, ¶ 11 (summarizing decisions).
                                               4


       {¶8}   The Property Owners’ complaint challenged the construction of Crystal Clinic’s

facility on its adjacent property, arguing that the construction violated various restrictive

covenants. It is apparent from the record that construction commenced after the trial court

denied the temporary restraining order. The progress of construction has continued since the

trial court’s judgment dismissing the complaint, as evidenced by two affidavits filed with this

Court while the appeal was pending. See Miner, 82 Ohio St. 237 at 239 (explaining that

mootness may be demonstrated by extrinsic evidence on appeal). Nonetheless, the Property

Owners did not request an injunction pending appeal that may have halted the further progress of

construction. See Neighbors for Responsible Land Use at ¶ 13. See generally App.R. 7(A) (“A

motion for * * * an order suspending, modifying, restoring or granting an injunction during the

pendency of an appeal may be made to the court of appeals[.]”); Dayton City School Dist. Bd. of

Edn. v. Dayton Edn. Assn., 80 Ohio App.3d 758, 761 (2d Dist.1992).

       {¶9}   Because the Property Owners did not seek an injunction pending appeal to halt

construction, as permitted by App.R. 7(A), this Court concludes that the appeal is moot. See

Neighbors for Responsible Land Use at ¶ 12-13; Poulson at ¶ 7; Schuster at ¶ 8. Consequently,

the appeal must be dismissed. See Miner at syllabus.

                                              III.

       {¶10} The Property Owners’ appeal from the judgment of the Summit County Court of

Common Pleas is moot, and the appeal is dismissed.

                                                                             Appeal dismissed.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



CARR, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

WARNER MENDENHALL and LOGAN TROMBLEY, Attorneys at Law, for Appellants.

CHRISTOPHER F. SWING, Attorney at Law, for Appellees.

DAVID SPORAR, Attorney at Law, for Appellees.
