2014 Ohio 4358
Ohio Ct. App.2014Background
- Mohammad and Umtul Ashraf owned property on Zumstein Drive that included two hotels; one parcel (6121 Zumstein Drive, Columbus Inn and Suites) was operated by Neera and Virendra Garg under a land-installment contract while legal title remained with the Ashrafs.
- From Jan. 2012–June 2013 Columbus police made 497 runs to the Columbus Inn and Suites; controlled buys and search warrants uncovered heroin, marijuana, guns, syringes, scales, and resulted in prostitution-related convictions.
- Columbus City Attorney Pfeiffer filed a civil nuisance action under R.C. Chapter 3767 seeking a nuisance finding, permanent injunction, sale of fixtures, one-year closure, and $300 fines; he also sought an ex parte TRO and a preliminary injunction.
- The trial court granted an ex parte TRO (without notice) ordering forcible removal of occupants and closure until the then-scheduled hearing date; the TRO expired by its terms on June 26, 2013 and was not extended.
- No preliminary injunction hearing occurred within statutory deadlines; at trial (Sept. 2013) the municipal court found the Ashrafs guilty of maintaining a nuisance, concluded the owners acquiesced in the criminal activity, ordered one-year closure and abatement, and taxed $300 each.
- On appeal the Ashrafs raised (1) error in issuance/duration of the TRO and (2) that the final judgment was against the manifest weight of the evidence as to acquiescence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity and effect of ex parte TRO (scope & duration) | Pfeiffer: court properly sought TRO and moved for preliminary injunction under R.C. 3767; TRO prevented removal of property and protected public safety | Ashraf: TRO exceeded R.C. 3767(B)(2) scope (which only authorizes restraint of removal of personal property) and was improperly issued under Civ.R. 65; challenged forcible removal and closure | Court: TRO was granted under Civ.R. 65 (broad relief) but expired by its own terms on June 26, 2013; because it was not extended and its expiration moots appellate relief, the TRO issue is overruled as moot |
| Whether owners acquiesced to criminal activity (necessity for one-year closure) | Pfeiffer: proof by clear and convincing evidence via (1) general reputation testimony, (2) prostitution/drug-related convictions at the property, and (3) direct evidence (police notices, meetings, owner awareness, refusal to hire security) | Ashraf: denied knowledge and acquiescence; claimed inability to abate because Garg ran operations; challenged statutory evidence rules (argued Rezcallah requires direct evidence) | Court: affirmed—relator met clear-and-convincing burden using prima facie reputation/convictions plus direct evidence of owner knowledge and refusal to act; trial court credibility determinations upheld; one-year closure and abatement mandated by R.C. 3767 were proper |
Key Cases Cited
- State ex rel. Pizza v. Rezcallah, 84 Ohio St.3d 116 (Ohio 1998) (explains limits on closure authority and standards for injunctive relief under R.C. Chapter 3767)
- State ex rel. Pizza v. Rayford, 62 Ohio St.3d 382 (Ohio 1992) (discusses TRO duration and Civ.R. 65 limitations)
- Eastley v. Volkman, 132 Ohio St.3d 328 (Ohio 2012) (sets forth Ohio manifest-weight-of-the-evidence standard)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (Ohio 1978) (articulates appellate review standard that judgments supported by competent credible evidence will not be reversed on weight grounds)