[Cite as Pride v. Cleveland Hts. Nuisance Abatement Bd. of Rev. , 2022

- Ohio

- 1236.]

COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
DARLENE PRIDE , :

Plaintiff

- Appell ant , : No. 110638 v. : CITY OF CLEVELAND HEIGHTS : NUISANCE ABATEMENT BOARD OF REVIEW , ET AL. , :

Defendant s - Appell ee s . :

JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 14, 2022

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

- 21
- 945687

Appearances: Gary Cook; and James Alexander, Jr. , for a ppellant

. William R. Hanna, Cleveland Heights Director of Law , and Pamela Roessner, Assistant Director of Law , for a ppellee

.
FRANK DANIEL CELEBREZZE, III , P. J. :

Appellant Darlene Pride (“appellant”) appeals the decision of the Cuyahoga County Court of Common Pleas that affirmed the decision of appellee c ity of Cleveland Heights Nuisance Abatement Board of Review (“NABR”) in heradministrative appeal . After a thorough review of the applicable law and facts, we

affirm the judgment of the common pleas court.

I. Factual and Procedural History Appellant was the owner of a double

- family dwelling located at 3188 Coleridge Road/2390 Lee Road, Cleveland Heights , Ohio (“Property”). In September 2020, a large fire occurred at the Property. The following day, the c ity of Cleveland Heights conducted an inspection of the Property by three city representatives

— City Fire Inspector Jim Streb (“Streb”), City Building Official Rick LoConti (“LoConti”), and City Housing Director Allan Butler (“Butler”).

Streb determined that, prior to the fire, there were structural issues at the Property, including standing water in the basement, hoarding conditions, and a general la ck of maintenance. He further found that the Property was severely damaged by the fire.

LoConti also found many structural issues with the Property, to wit: the roof had partially collapsed, the floor to the attic had collapsed, and the building joists were separating. The Property was extremely deteriorated, which had caused structural collapse. There were additional structural problems involving the foundation of the Property.

LoConti found that the Property was unsafe and posed a serious hazard

t o human life and health. He determined that the Property should be razed immediately. Butler concurred with these findings.Appellant wanted to repair the Property and requested a second

inspection. The three city officials again inspected the Property several days later and came to the same conclusion

— that the Property was unsafe, a serious hazard to health and human life, and had to be razed.

The city’s b uilding o ffic ial and h ousing d irector issued a “ Notice of Code Violation and an Emergency Demolit ion Order ” to appellant , who filed a notice of appeal with the NABR.

The NABR held a virtual hearing via WebEx on appellant’s appeal, wherein appellant appeared and was represented by counsel. Appellant was permitted to present evidence and witnesses at the hearing.

At the time of the hearing, 120 days had passed since appellant’s notice of appeal had been filed. Appellant did not present any evidence at the hearing of any efforts she had made during that time to address the findings of the inspections of the Property or to render it safe and habitable. She was permitted to testify at the hearing, but did not do so , and only presented the testimony of an architect with regard to repairing the Property.

Prior to the hearing, Butler had conducted an updat ed inspection of the Property and took photographs of the deterioration since the fire. Several feet of ice had formed in the basement of the Property. Butler testified that the ice further rendered the Property unsafe and a hazard because it had caused additional damage to the foundation of the Property.According to county records, the Property had been valued at

$235,000 prior to the fire. There was a tax delinquency of $10,000 on the Property. The city estimated the cost to repair the Property to be $484,500. Appellant’s architect testified that the estimated cost of repair was $300,000. Appellant did not have insurance for the Property.

At the conclusion of the hearing, the NABR determined that the city had proven the existence of a nuisance and t he reasonableness of the b uilding

o fficial’s e mergency d emolition o rder. Appellant ’s appeal was denied.

The proceedings at the hearing were recorded using WebEx, but it was later discovered that the recording was corrupted and consequently could not be

tr anscribed. The NABR reconvened to consider findings of fact and issued its final order and decision along with findings of fact.

Appellant timely filed an appeal of the NABR decision to the Cuyahoga County Court of Common Pleas under R.C. Chapter 2506. She further sought an emergency stay of the demolition of the Property, which was granted by the court.

The parties briefed the administrative appeal, and the court affirmed the decision of the NABR. The court determined that, a fter reviewing the record , it could not find that the decision of the NABR wa s unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable , and probative evidence. Appellant did not seek a stay of this decision, and the Property was demolished on June 14, 2021.

Appellant appealed, raising three assignments of error for our review:1. The lower court erred in upholding the appellee’s affirmation of the

nuisance finding and demolition order because the fi nal order to raze the residence was unconstitutional, illegal, arbitrary, capricious, unreasonable, and unsupported by the preponderance of substantial, reliable, and probative evidence. 2. The lower court erred by not considering the appellant’s assig nment of error that the Cleveland Heights City Council was required to pass legislation authorizing the demolition of the property as a nuisance, because the lower court incorrectly opined that the appellant “waived” the argument and/or that such issue cou ld be reviewed under the “plain error” doctrine.

3. The lower court erred by not conducting a hearing to supplement the evidence missing from the nuisance board record.
II. Law and Analysis Preliminarily, we must address an issue that was discussed at oral argument in this matter

— whether this appeal has been rendered moot because the Property has already been razed. A matter becomes moot “[i]f events transpire post

judgment that make it im possible for an appellate court to grant any effectual relief, the appellate court has nothing to decide and the appeal is rendered moot.” Ardire v. Westlake City Council , 8th Dist. Cuyahoga No. 99347, 2013

- Ohio

- 3533, ¶ 3, citing
Miner v. Witt , 82 Ohio St . 237, 92 N.E. 21 (1910), syllabus.

This court has previously held that where the subject building on the property has been demolished , and the property owner has failed to obtain a stay of the lower court’s judgment, the property owner’s arguments are ren dered moot. Mayfield v. Costanzo & Son Co ., 8th Dist. Cuyahoga No. 96890, 2012

- Ohio

- 271, ¶ 14, citing Armour v. Luckey , 9th Dist. Summit No. 10220, 1981 Ohio App. LEXIS13668 (Aug. 27, 1981) (denial of stay and demolition of the building rendered

argument on appeal moot)

.

As noted above, appellant failed to obtain a stay of the lower court’s decision upholding the nuisance finding and demolition order, and the Property was demolished. Accordingly, any arguments related to the propriety of the demolition h ave been rendered moot. While appellant expressed a desire to seek damages with regard to the razing of the Property , such relief could only be sought through a separate action. Consequently, b ecause the demolition order has been carried out and the Property has been razed, there is no relief in this administrative appeal that can be afforded to appellant. Even if this court were to reverse the judgment of the lower court, there is no relief th at can be afforded to appellant because the demolition has already occurred. ‘ “An appeal is moot if it is impossible for the appellate court to grant any effectual relief. ’ ” Wells Fargo Bank, N.A. v. Cuevas , 8th Dist. Cuyahoga No. 99921, 2014

- Ohio

- 498, ¶ 22, quoting Equibank v. Rivera , 8th Dist. Cuyahoga No. 72224, 1998 Ohio App. LEXIS 185, 3 (Jan. 22, 1998), citing
Miner

. However, we note that appellant’s second and third assignments of error appear to invoke due process arguments , and thus we will addre ss them. See, e.g., Mayfield. As set forth below, we find them both to be without merit.
A. Second Assignment of Error In her second assignment of error, appellant argues that t he lower court erred by not considering her assigned error that Cleveland Height s CityCouncil was required to pass legislation authorizing the demolition of the P roperty

as a nuisance, because the lower court incorrectly opined that the appellant waived the argument and/or that such issue could be reviewed under the plain error doctr ine. In its order, the common pleas court determined that appellant ’s assertion that c ouncil should have declared the Property a nuisance prior to issuing a demolition order could have been raised at the hearing before the NABR, but appellant did not do so. The trial court noted that this argument was made for the first time in the appeal and was consequently waived.

We find that the common pleas court correctly determined that appellant had failed to bring the issue of the need for legislative action to the attention of the NABR and thus, the issue was waived on appeal.

Regardless, even if the lower court had reviewed appellant ’s argument for plain error, her argument was without merit. Appellant correctly notes that
C leveland H eights C odified O rdinance (“CHCO”) 553.03(b) provides that “Council shall first declare said property or structur e a Nuisance prior to the issuance of an order to raze.” However, the order in this case was an emergency order. Under CHCO 553.11, if the mayor or designee determine that an emergency exists due to the continuing presence of a nuisance, the c ity may per form any action under CHCO Chapter 553 or other applicable state and federal law without prior notice or hearing.

Accordingly, because the NABR determined that an emergency existed with regard to the Property, the c ity was permitted to raze the Propertywi thout any further action. There was no plain error, and appellant ’s second

assignment of error is overruled.
B. Third Assignment of Error
In appellant ’s final assignment of error, she argues that the common pleas court erred by failing to conduct a hearing t o supplement the evidence missing from the NABR’s record.

Under R.C. 2506.02, the NABR had 40 days to “ prepare and file * * * a complete transcript of all the original papers, testimony, and evidence offered, heard, and taken into consideration in issuing [its] final order, adjudication, or decision. ” As noted above, the hearing before the NABR was conducted via WebEx ; the proceedings were also supposed to be recorded via WebEx

. However, the recording was corrupted and unavailable for transcription.

Th e c i ty filed a r ecord of p roceedings that contained all of the original papers submitted to the NABR with respect to appellant ’s appeal, including numerous photographs and documents submitted by the c ity, along with appellant ’s partially completed architec tural plans. The c ity further submitted hearing minutes that contain ed a summary of all the sworn testimony presented to NABR by the c ity’s witnesses and appellant ’s sole witness

— her architect. The hearing minutes also
contain ed a summary of the questions and comments of the NABR members regarding appellant ’s appeal. In addition, NABR issued a written f inal o rder and d ecision and f

indings of f

act.After the c ity filed the record with the common pleas court, appellant

moved the court to order the c ity to file a complete transcript of all testimony.
A ppellant argued that the summary of proceedings filed by the c ity failed to include evidence obtained on cross

- examination where some of the c ity’s witnesses agreed that the Property could be repaired. The court denied appellant ’s motion, presumably because there was no transcript to be filed due to the technical difficulties. In reviewing an appeal under R.C. C hapter 2506, the common pleas

court “ is confined to the transcript of the administrative body, unless one of the conditions specified in R.C. 2506.03 appears on the face of the transcript or by affidavit. ” Dvorak v. Mun. Civil Serv. Comm

. , 46 Ohio St.2d 99, 346 N.E.2d 157 (1976) , paragraph one of the syllabus

.

R.C. 2506.03 pr ovides the following: (A ) The hearing of an appeal taken in relation to a final order, adjudication, or decision covered by division (A) of section 2506.01 of the Revised Code shall proceed as in the trial of a civil action, but the court shall be confined to the transcript filed under section 2506.02 of the Revised Code unless it appears, on the face of that transcript or by affidavit filed by the appellant, that one of the following applies: (1) The transcript does not contain a report of all evidence admitted or proffered by the appellant. (2) The appellant was not permitted to appear and be heard in person, or by the appellant’s attorney, in opposition to the final order, adjudication, or decision, and to do any of the following: (a) Presen t the appellant’s position, arguments, and contentions; (b) Offer and examine witnesses and present evidence in support;(c) Cross

- examine witnesses purporting to refute the appellant’s

position, arguments, and contentions; (d) Offer evidence to refute e vidence and testimony offered in opposition to the appellant’s position, arguments, and contentions; (e) Proffer any such evidence into the record, if the admission of it is denied by the officer or body appealed from. (3) The testimony adduced was not g iven under oath. (4) The appellant was unable to present evidence by reason of a lack of the power of subpoena by the officer or body appealed from, or the refusal, after request, of that officer or body to afford the appellant opportunity to use the powe r of subpoena when possessed by the officer or body. (5) The officer or body failed to file with the transcript conclusions of fact supporting the final order, adjudication, or decision. If one of those conditions exists, the court shall hear the appeal upon the transcript and additional evidence as may be introduced by any party. R.C. 2506.03(B). “ [If] an affidavit is filed pursuant to R.C. 2506.03, * * * the reviewing court must consider its content in its disposition of the case. ” Dvorak at paragrap h two of the syllabus.

This court has noted that “[i] t is not enough that omissions or gaps occur in the transcript, a party seeking to present additional evidence pursuant to R.C. 2506 [.03] must demonstrate that there is a reasonable likelihood that the

a dditional evidence when allowed would change the outcome of the decision he [or she] seeks to overturn. ” Ardire v. W estl ake Planning Comm ., 8th Dist. Cuyahoga
N o . 61636, 1993 Ohio App. LEXIS 620, 7 (Feb. 4, 1993) , citing Franklin Twp

. v. Marble Cliff

, 4 O hio App.3d 213 , 447 N.E.2d 765 ( 10 th Dist. 1982)

.Appellant moved the court to order the c ity to provide a complete

transcript, but it could not do so as a result of the WebEx technical difficulties. The record does not reflect that appellant subsequently moved to submit additional evidence under R.C. 2506.03(A) once her prior motion was denie d. While the instant assignment of error asserts that the court erred by failing to conduct a hearing, appellant never asked it to do so. Accordingly, appellant did not pursue her available remedy. See Smith v. Coventry Twp. Zoning Dept

. , 9th Dist. Summ it No. 23871, 2008

- Ohio

- 2532, ¶ 9 , quoting Bussey v. Portsmouth Metro. Hous. Auth ., 4th
Dist. Scioto No. 92 CA 2059, 1993 Ohio App. LEXIS 5988, 20 (Nov. 30, 1993) ( ‘ “ remedy for an inadequate transcript is to file a R.C. 2506.03(A) motion requesting the cou rt to hear additional evidence. ’ ” ).

Accordingly, we find that appellant has not demonstrated that the common pleas court erred in failing to conduct a hearing, and her third assignment of error is overruled.
III. Conclusion

Appellant’s first assignment of erro r was rendered moot by her failure to seek a stay of the lower court’s decision, which allowed the Property to be razed. Appellant’s second and third assignments of error are overruled. The lower court did not err in finding that appellant had waived the issue of the need to bring legislative action or in declining to conduct a hearing in this matter

.

Judgment affirmed. It is ordered that appellee recover from appellant costs herein taxed.The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court 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.

FRANK DANIEL CELEBREZZE, III , PRESIDING JUDGE
EILEEN A. GALLAGHER , J., and EMANUELLA D. GROVES , J., CONCUR