[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. Appellants

v. CRYSTAL CLINIC ORTHOPAEDIC CENTER, LLC, et al. Appellees C.A. No. 29579

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2019-04-1247

DECISION AND JOURNAL ENTRY Dated: March 11, 2020

CALLAHAN, Presiding Judge. {¶1} Appellants, Ryan and Ashley Heane y, Dale and Carol Becker, and Mohamed and Mouna Katirji (“the Property Own ers”) appeal a judgment that di smissed their claims against Crystal Clinic Orthopaedic Cente r and CC Embassy LLC (“Crystal Clinic”). This Court dismisses the appeal as moot.

I. {¶2} Crystal Clinic planned construc tion of a facility on Embassy Pa rkway in Fairlawn. The Property Owners are resident s of two nearby subdivisions wh ose property abuts the construction site. They filed a complaint against Crystal Clin ic seeking the enforcement of setback and height restrictions through declaratory judgment an d injunctive relief. The Property Owners requested a temporary restraining order halting the cons truction 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 t he complaint, which addressed the2

height restrictions, for lack of standing. In a separate motio n, 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, Crysta l Clinic also supplemented its

motion to dismiss for mootness w ith periodic updates regarding the progress of construction. {¶3} The case proceeded to a hearing on a preliminary injunction bef ore a magistrate, who also took Crystal Clinic’s two motions to dismiss under adv isement. The magistrate’s decision denied the preliminary injunction, but also denied Cry stal Clinic’s motions to dismiss for failure to join necessary parties and for mootness. The ma gistrate did not specifically address Crystal Clinic’s argument regarding standing. Crystal Clinic o bjected to the magistrate’s decision, but the Propert y Owners did not do so. {¶4} The trial court upheld the magis trate’s decision to deny the pr eliminary injunction and specifically upheld certain of the magistrate’s findings, b ut 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 C ount Two of the complaint based on the conclusion that the Property Owners lacked standing, thu s dismissing the complaint in its entirety. Although these decisions fully resolved the claims a t issue, the trial court also rejected the magistrate’s conclusion with r espect to Crystal Clinic’s mo tion to dismiss the claims as moot, concluding that because construc tion had commenced, the complai nt 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 c ourts from deciding cases in wh ich no controversy remains. In re A.G. , 139 Ohio St.3d 572, 2014-Ohio-2597, ¶ 37. Consequently, this Court can only “decide actual c ontroversies by a judgment which can be carried into effect” and cannot “give opinions upon moot que stions or abstract propositi ons, or * * * declare principles or

rules of law which cannot affect the matter in issue in the cas e 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 meaning ful relief to the appellant. See

Miner at syllabus. For purposes of de termining whether an appeal is moot, this determination focuses on the relief that the appellant seeks from the Court a nd 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 di sputes, this Court has observe d 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 t herefore held that when

construction commences because a n appellant failed to seek a st ay 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 (summari zing decisions).4

{¶8} The Property Owners’ complaint c hallenged the construction of C rystal Clinic’s facility on its adjacent property, arguing that the constructio n violated various restrictive covenants. It is apparent from the record that construction co mmenced after the trial court denied the temporary restraining order. The progress of constr uction has continued since the trial court’s judgment dismissing the complaint, as evidenced b y 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 ha ve 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 g ranting 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 Cou nty Court of Common Pleas is moot, and t he appeal is dismissed. Appeal dismissed.

There were reasonable grounds for this appeal.5

We order that a special mandate issue out of this Court, direc ting 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 consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellants.

LYNNE S. CALL AHAN FOR THE COURT

CARR, J. SCHAFER, J. CONCUR.

APPEARANCES: WARNER MENDENHALL and LOGAN TROMBLEY, Attorneys at Law, for App ellants. CHRISTOPHER F. SWING, Attorn ey at Law, for Appellees. DAVID SPORAR, Attorney at Law, for Appellees.