Opinion
No. 82-1078
Decided December 29, 1982.
Mandamus to enjoin processing of annexation documents denied, when — City council accepts annexation — Stay must be obtained or case rendered moot, when — R.C. Chapter 709.
IN MANDAMUS.
Relators, the Board of Trustees of Springfield Township, are appellants in an appeal presently pending before the Court of Appeals for Summit County in which they seek reversal of a decision by the court of common pleas ordering the Summit County Council to approve a petition seeking annexation of 272.7 acres of land to the city of Akron. The relevant facts which precipitated the instant action have been stipulated.
On June 1, 1979, property owners in an industrial-commercial area of Springfield Township, known as Gilchrist II, who desired their property be annexed to the city of Akron, filed a petition with the Summit County Council. After extensive litigation and a public hearing, the annexation request was denied.
The Gilchrist II petition was one of four annexation petitions previously considered by this court in Holcomb v. Bd. of Commrs. (1980), 62 Ohio St.2d 241[16 O.O.3d 278].
Subsequently, the Gilchrist II petitioners appealed the decision of the Summit County Council to the court of common pleas in accordance with the provisions of R.C. 307.56 and 2506.01. That court concluded that council's decision denying the annexation was illegal, unreasonable, arbitrary and against the manifest weight of reliable and probative evidence and, therefore, remanded the cause with instructions ordering the council to approve the petition and transmit all relevant annexation information to the clerk of the Akron City Council. See R.C. 2506.04. On May 4, 1982, relators appealed the order of the court of common pleas to the court of appeals. Relators, however, failed to request the court of common pleas to stay its judgment pending appeal, pursuant to Civ. R. 62(B).
In pertinent part, Civ. R. 62 provides:
"(B) Stay upon appeal. When an appeal is taken the appellant may obtain a stay of execution of a judgment or any proceedings to enforce a judgment by giving an adequate supersedeas bond. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court.
"(C) Stay in favor of the government. When an appeal is taken by this state or political subdivision, or administrative agency of either, or by any officer thereof acting in his representative capacity and the operation or enforcement of the judgment is stayed, no bond, obligation or other security shall be required from the appellant."
Absent a stay, the annexation information was forwarded to the city clerk who, after waiting sixty days in accordance with the provisions of R.C. 709.04, presented the Gilchrist II petition to the Akron City Council on June 28, 1982, at which time council accepted the annexation under Ordinance No. 415-1982. Pursuant to R.C. 709.10, the ordinance was to become effective July 28, 1982.
On July 9, 1982, nearly two weeks after the passage of the ordinance, relators filed a motion in the court of appeals requesting the issuance of a stay, pursuant to App. R. 7, in an attempt to enjoin the clerk of city council from authenticating, certifying or forwarding, and the county auditor and county clerk from accepting, recording and filing, the annexation documents. After conducting a hearing on the motion, the court of appeals declined to issue the stay on the basis that "* * * there is at this time [July 26, 1982] no act or proceeding which may be stayed pending resolution of this appeal."
In pertinent part, App. R. 7(A) provides:
"Application for a stay of the judgment or order of a trial court pending appeal, or for the determination of the amount of and the approval of a supersedeas bond, must ordinarily be made in the first instance in the trial court. A motion for such relief or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal may be made to the court of appeals or to a judge thereof, but, except in cases of injunction pending appeal, the motion shall show that application to the trial court for the relief sought is not practicable, or that the trial court has, by journal entry, denied an application, or failed to afford the relief which the applicant requested. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. * * *"
On July 27, 1982, relators initiated this action in mandamus contending that the provisions of R.C. 709.07 operate to deny their right to appeal the judgment of the court of common pleas and, as such, the statute is constitutionally defective. On that same day, we granted relators' request for an alternative writ restraining respondents from taking any action in furtherance of the annexation pending resolution of the subject cause.
Messrs. Vorys, Sater, Seymour Pease, Mr. John C. Elam and Mr. James H. Hedden, for relators. Mr. Robert D. Pritt, law director, and Ms. Patricia C. Ambrose, for respondent mayor of Akron.
Reporter's Note: Counsel presently appearing on behalf of relators did not represent relators in the proceedings below.
Relators argue the court of appeals construed R.C. 709.07 as the sole avenue by which to preserve their appeal from the court of common pleas and that this construction denies relators a meaningful and effective appeal to which they are entitled.
R.C. 709.07 provides, in pertinent part:
"(A) Within sixty days from the filing of the papers relating to the annexation with the auditor or clerk as provided by division (D) of section 707.04 or by section 709.033 of the Revised Code, any person interested, and any other person who appeared in person or by an attorney in the hearing provided for in section 709.031 of the Revised Code, may make application by petition to the court of common pleas praying for an injunction restraining the auditor or clerk from presenting the annexation petition and other papers to the legislative authority. The petition of a person interested shall set forth facts showing:
"(1) How the proposed annexation adversely affects the legal rights or interests of the petitioner;
"(2) The nature of the error in the proceedings before the board of county commissioners pursuant to section 707.04, 709.032, or 709.033 of the Revised Code, or how the findings or order of the board is unreasonable or unlawful." (Emphasis added.)
Examination of R.C. 709.07 indicates that relators' reliance thereon, as a basis for the instant action in mandamus, is without merit. By its express provisions, the statute contemplates injunctive relief for persons interested in a proposed annexation who assert "error in the proceedings before the board of county commissioners." In the cause sub judice, relators prevailed before the Summit County Council and concede the absence of error before that authority. Furthermore, contrary to relators' assertion, the court of appeals did not rely on R.C. 709.07 as a basis for declining to issue a stay of execution. Instead, the court held that since the Akron City Council passed the ordinance accepting the annexation and the city officials had fully complied with the provisions of R.C. Chapter 709, there was no act or proceeding which remained to be stayed. Thus, the request for the stay was held moot. We agree.
It is well-established that absent an injunction or order staying further action, "the adoption by the city council of an ordinance accepting annexation renders moot a case seeking to enjoin annexation." Garverick v. Hoffman (1970), 23 Ohio St.2d 74, 81 [52 O.O.2d 371]; Walker v. Serrott (1968), 14 Ohio St.2d 54, 55 [43 O.O.2d 118]. See, also, Miner v. Witt (1910), 82 Ohio St. 237; Webster v. Serrott (1966), 7 Ohio App.2d 67 [36 O.O.2d 158]; Crandall v. Cain (1956), 75 Ohio Law Abs. 134; Lamneck v. Cain (1955), 73 Ohio Law Abs. 20.
Unlike Garverick and Walker, supra, the present action was not initiated subsequent to the denial of a petition seeking a temporary injunction under R.C. 709.07. Rather, landowners, whose annexation petition was denied by the Summit County Council, perfected an appeal to the court of common pleas pursuant to R.C. 2506.01. Without question, R.C. 2506.04 provides an avenue of appeal by which relators could have obtained appellate review of the judgment of the court of common pleas, prior to this action having become moot.
In pertinent part, R.C. 2506.01 provides:
"Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state may be reviewed by the common pleas court of the county in which the principal office of the political subdivision is located, as provided in sections 2505.01 to 2505.45, inclusive, of the Revised Code, and as such procedure is modified by sections 2506.01 and 2506.04, inclusive, of the Revised Code."
R.C. 2506.04 provides:
"The court may find that the order, adjudication or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication or decision, or remand the cause to the officer or body appealed from with instructions to enter an order consistent with the findings or opinion of the court. The judgment of the court may be appealed by any party on questions of law pursuant to sections 2505.01 to 2505.45, inclusive, of the Revised Code."
We wish to emphasize that subsequent to the final order of the court of common pleas on April 21, 1982, until city council's enactment of the annexation ordinance on June 28, 1982, relators possessed several options. First, under Civ. R. 62(B), a stay was available upon request from the court of common pleas which would have prevented this cause from becoming moot. Second, a timely stay under the provisions of App. R. 7 could have been sought from the court of appeals. Neither course, however, was pursued despite the abundance of precedent which compels us to agree with the court of appeals that this action was rendered moot on June 28, 1982, the date city council adopted Ordinance No. 415-1982, accepting the annexation.
For the foregoing reasons, the writ of mandamus is hereby denied.
Writ denied.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.