485 N.E.2d 824 | Ohio Ct. App. | 1984
Lead Opinion
The city of Warrensville Heights ("the city") appeals a reversal by the common pleas court of a zoning decision of the Warrensville Heights City Council. Appellee is a corporation known as 3910 Warrensville Center, Inc. ("Center") which owns a building at that address.
Appellee sought a certificate of business occupancy from the city building commissioner in order to resume operation of a tavern business on the premises which had been discontinued in 1981.
The Center's application was denied and a timely appeal was taken to city council, which affirmed the commissioner's decision after a hearing.1
Appellee perfected its appeal pursuant to R.C. Chapters 2505 and 2506 to the court of common pleas. On November 28, 1983, the court journalized the following entry:
"The decision of the Warrensville Heights City Council is hereby reversed."
On December 12, 1983, the city filed a motion for findings of fact and conclusions of law pursuant to Civ. R. 52 which the court overruled by reason of its untimeliness.
From the trial court's judgment the city has filed two separate appeals, consolidated for our review, which raise the sole issue of whether the common pleas court is required to issue findings in support of its decision.2
The appellant contends that since the trial court has not complied with a claimed statutory duty to make factual findings, it has effectively foreclosed any further review of the merits of this case.
The record reflects that upon appeal by Center to the common pleas court, the City filed the transcript of the council hearing and appellee filed a "motion requesting consideration of other evidence pursuant to R.C.
R.C.
"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
We find no support in the statute for appellant's proposition that the common pleas court is required to issue written factual findings in such appeals.
In Dudukovich v. Housing Authority (1979),
"Thus, it is quite evident that the Court of Common Pleas must weigh the evidence in the record, and whatever additional evidence may be admitted pursuant to R.C.
We find that the trial court's failure to specify the basis of its reversal does not constitute non-compliance with the statute.
Further, we find that the final judgment is not rendered defective because the court entered no ruling on appellee's motion for additional evidence. Ordinarily, an appellate court must presume the regularity of the proceedings below. Beach v.Sweeney (1958),
We also reject appellant's argument that the court was required to make findings of fact and conclusions of law pursuant to Civ. R. 52. In 12701 Shaker Co. v. Cleveland (1972),
* * * [T]he review of the action by the Board of Zoning Appeals is not a trial de novo, Williams v. Township Trustees (1969),
In Kennedy v. Cleveland Civil Service Comm. (May 3, 1979), Cuyahoga App. No. 38759, unreported, we held that the common pleas court has a duty to issue such findings upon the filing of a timely request. That decision, however, is clearly based upon the function of the court as a fact-finder in those administrative appeals in which the parties are entitled to a trial de novo.
In the instant case the trial court did not function as a fact-finder in a trial de novo. Therefore, even if appellant had filed a timely request for findings, the trial court was not mandated to issue them.
Appellant's assignment of error is not well-taken.
We do note, however, that the trial court's order failed to remand the case to the building commissioner for issuance of the occupancy permit. Consequently, judgment of the trial court is modified to include a remand to the Building Commissioner of Warrensville Heights for this purpose, and, as modified, the judgment is affirmed.
Judgment affirmed as modified.
MARKUS, P.J., and RUSSO, J., concur.
"The trial court erred in reversing the action of the Warrensville Heights City Council under Ohio Revised Code Section
Although App. R. 3 permits a party to file a single appeal, the city has filed a second appeal assigning the following as error:
"The trial court erred in granting appellee's motion to strike request for findings of fact and conclusions of law on the stated basis that said request was untimely."
"The hearing of such appeal shall proceed as in the trial of a civil action but the court shall be confined to the transcript as filed pursuant to section
"* * *
"(E) The officer or body failed to file with the transcript, conclusions of fact supporting the order, adjudication or decision appealed from; in which case, the court shall hear the appeal upon the transcript and such additional evidence as may be introduced by any party. At the hearing, any party may call as if on cross-examination, any witness who previously gave testimony in opposition to such party."
Concurrence Opinion
I agree with the majority's decision but add a second reason for the result reached by the majority.
The trial court's duty to provide factual findings arises only when a party makes a timely request for such findings. The request is timely before the disputed order is filed for journalization or within seven days after "notice of the court's announcement of its decision." Civ. R. 52. The court may announce its decision before it journalizes the resulting order or judgment. Civ. R. 58; Jackson v. Columbus (1974),
In this case, no party requested separate findings within seven days after the court journalized the challenged judgment. Hence, the court had no duty to provide such findings even if they were appropriate for this type of proceeding.