Capital City Community Urban Redevelopment Corp. v. ColumbusCapital City Community Urban Redevelopment Corp. v. Columbus
Rendered on December 20, 2012
Fred J. Milligan, for appellants.
Richard C. Pfeiffer, Jr., City Attorney, and Paula J. Lloyd, for appellee.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiffs-appellants, Capital City Community Urban Redevelopment Corporation (individually “Capital City“) and Charles L. Adrian (collectively “appellants“), appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee, city of Columbus (“city“). For the following reasons, we affirm.
I. BACKGROUND
{¶ 2} Capital City is a non-profit corporation that sold the Lincoln Theater, a building located in Columbus, Ohio, to Columbus Urban Growth Corporation (“CUG“) on September 17, 2002. As pertinent here, paragraph 9(a) of the purchase agreement required CUG to provide Saturday movies to children for $1 or less for a double feature
{¶ 3} In 2005, appellants filed an action against the city seeking, inter alia, a declaratory judgment that paragraph 9(a) of the agreement was a restrictive covenant that bound the city and CUG. We addressed the issue in Capital City Community Urban Redevelopment Corp. v. Columbus, 10th Dist. No. 08AP-769, 2009-Ohio-6835 (”Capital City I“), and held that paragraph 9(a) “was a covenant running with the land by which the city was bound.” Id. at ¶ 19. We found the phrase “Saturday movies” to be unambiguous, but declined to interpret the phrase “for as long as feasible,” stating that “the definition of this phrase is for interpretation by the city. If any party disagrees with the city‘s definition at some point in the future, appropriate action may be taken to determine the definition of this phrase.” Id. at ¶ 17.
{¶ 4} On remand, the trial court entered a declaratory judgment determining that paragraph 9(a) was a real covenant running with the land, and that the city was required to perform its obligations under that provision in the manner set forth in Capital City I.
{¶ 5} In October 2010, appellants filed a complaint against the city in the present case, alleging that the city had failed to comply with the Saturday double feature requirement of paragraph 9(a). Appellants characterized the complaint as “an application for further relief based on a declaratory judgment previously granted * * * brought pursuant to [R.C.] 2721.09.” (Complaint, 1.) Appellants also filed a motion requesting an order for the city to show cause as to why further relief should not be granted.
{¶ 6} The city filed an answer on November 5, 2010 but shortly thereafter amended its answer to include the additional affirmative defense of failure to join a necessary party. According to the city, the right to manage and operate the theater belonged to the Lincoln Theatre Association (“LTA“) pursuant to a 99-year renewal forever lease entered into between LTA and the city in 2007, while the underlying declaratory judgment action was pending. The city claimed that the lease left the city without any rights of possession to show movies making it impossible for the city to perform the requested relief.
{¶ 7} Appellants moved for summary judgment on August 15, 2011, which the city opposed. At a pre-trial conference held on October 11, 2011, the trial court granted
{¶ 8} In light of appellants’ decision not to join additional parties, the city obtained leave to file a motion for summary judgment. The city attached the lease agreement entered into with LTA as well as the agreement entered into between LTA and CAPA. In a decision and entry dated March 7, 2012, the trial court entered summary judgment in favor of the city and dismissed appellants’ complaint on the ground that appellants failed to join LTA as a necessary party as required by
II. ASSIGNMENTS OF ERROR
{¶ 9} In a timely appeal, appellants present the following four assignments of error for our consideration:
[I.] The Trial Court erred in sustaining defendant‘s motion for summary judgment and dismissing plaintiff‘s complaint for failure to join the Lincoln Theatre Association as a party defendant.
[II.] The Trial Court erred by failing to sustain plaintiffs’ motion for an order to show cause why further relief should not be granted.
[III.] The Trial Court erred by failing to sustain plaintiffs’ motion for summary judgment.
[IV.] The delays and other procedural irregularities reflected in the record raise a reasonable question as to whether the trial judge because of his personal views concerning the case is able to carry out the prior decision of this Court with objectivity and dispatch. The Court should exercise its discretion to enter the judgment that the trial judge should have entered and/or remand the case to the assignment office for random assignment to another judge.
{¶ 10} In their first assignment of error, appellants argue that the trial court erred by granting the city‘s motion for summary judgment and dismissing the complaint for failure to join LTA as a necessary party. We disagree.
{¶ 11} Appellate review of summary judgment is de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, ¶ 8. To obtain summary judgment, the movant must show that (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion when viewing evidence in favor of the nonmoving party and that conclusion is adverse to the nonmoving party.
{¶ 12} Here, the trial court granted the city‘s motion for summary judgment and dismissed appellants’ complaint by relying on
{¶ 13} The trial court found LTA to be a necessary party based on the affidavit submitted by the city‘s Development Director Boyce Safford, and the lease agreement executed between LTA and the city. Safford averred that the city had transferred the rights of management, operation, and use of the Lincoln Theater to LTA pursuant to the 99-year renewable lease agreement. According to Safford, the assessment of whether it is feasible to show Saturday double features for $1 or less is within the province of the LTA in connection with its contractual right to manage, operate, and use the theater. The trial court also found Section 5.01(a)(ii) of the lease agreement to be particularly persuasive, as it granted LTA considerable discretion in the management and operation of the theater.
{¶ 14} Appellants argue that their complaint was not subject to the necessary party requirement in
{¶ 15} Next, appellants claim that principles of waiver and estoppel prevented the city from asserting the defense of failure to join LTA as a party by not raising it in the previous declaratory judgment action. We disagree. “[T]he failure to join a necessary
{¶ 16} Upon review of the record, we find that the city presented evidence that LTA was a necessary party for purposes of
{¶ 17} This conclusion does not, however, end our analysis. Appellants alternatively claim that, even if LTA were a necessary party under
{¶ 18} In Copeland v. Tracy, 111 Ohio App.3d 648 (10th Dist.1997), this court rejected the argument that
{¶ 19} The Supreme Court of Ohio discussed Copeland in Plumbers, a case addressing whether a party can satisfy
{¶ 20} Given that our holding in Copeland remains valid in the context of
{¶ 21} For the reasons discussed above, we find no error in the trial court‘s decision to dismiss appellants’ complaint for lack of jurisdiction based on appellants’ failure to join LTA as a necessary party. See Portage Cty. at ¶ 100 (affirming dismissal of action for declaratory relief where failure to include necessary party constituted a jurisdictional defect);
{¶ 22} Our resolution of appellants’ first assignment of error is dispositive of appellants’ second and third assignments of error, which argue that the trial court erroneously failed to rule on their motion for the city to show cause as to why relief should not be granted and by refusing to sustain appellants’ motion for summary judgment. “[T]the absence of a necessary party renders all other issues moot, including the merits.” Copeland at 656; see also Bretton Ridge at 185. Accordingly, appellants’ second and third assignments of error are rendered moot.
C. Fourth Assignment of Error
{¶ 23} Appellants’ fourth assignment of error challenges the trial court‘s objectivity concerning the case and asks this court to disqualify the trial court and order that the case be reassigned. “However, ‘[t]his court lacks authority to consider issues of disqualification.’ ” J.V.C.-N. v. M.P.D., 10th Dist. No. 11AP-581, 2012-Ohio-1418, ¶ 33, quoting Herold v. Herold, 10th Dist. No. 04AP-206, 2004-Ohio-6727, ¶ 20. ” ‘Pursuant to
III. CONCLUSION
{¶ 24} Having overruled appellants’ first and fourth assignments of error, and having found appellants’ second and third assignments of error to be rendered moot, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN, P.J., and CONNOR, J., concur.