Fiore v. LargerFiore v. Larger
OPINION
Rendered on the 9th day of October, 2009.
JOHN H. STACHLER, Atty. Reg. #0064130, and NICHOLAS SMITH, Atty. Reg. #0076848, 214 West Monument Avenue, P.O. Box 10068, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellants, Charles Fiore and Michelle Fiore-King
CRAIG W. SAUNDERS, Atty. Reg. #0071865, and DENNIS M. HANAGHAN, Atty. Reg. #0003464, Hanaghan & Hanaghan, 32 North Main Street, Suite 911, Dayton, Ohio 45402 Attorneys for Defendant-Appellees, Aloys Larger and Marcella Larger
MATHIAS H. HECK, JR., by DOUGLAS TROUT, Atty. Reg. #0072027, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorneys for Defendant-Appellee, Board of Township Trustees of Butler Township, Ohio
FRENCH, J. (by assignment)
{¶ 1} Appellants, Charles Fiore and Michelle Fiore-King (collectively, “the
{¶ 2} The Fiores are co-owners of real property located at 8748 Haloran Lane, Dayton, Ohio, and the Largers are co-owners of adjacent real property located at 8712 North Dixie Drive, Dayton, Ohio. Both properties are located in Butler Township and are subject to the Butler Township Board of Township Trustees’ zoning authority. As applicable to this appeal, Butler Township Zoning Code section 4303.02(C) states that “[w]hen any open off-street parking area containing more than five (5) parking spaces is adjacent to a Residential District, an effective buffer or screen, consisting of a solid wall, fence, or dense living hedge, shall be provided at the lot line to protect the privacy of the adjoining residential uses. Such wall, fence, or hedge shall be not less than six (6) feet in height.”
{¶ 3} The Largers’ property, located within a commercial district established by Butler Township, contains a building used as a barber shop and an open parking lot to the east of the barber shop. The Largers’ property has ingress and egress to Dixie Drive, a north-south public roadway located adjacent to the western edge of the Largers’ property. The Fiores’ property is located within a residential district established by Butler Township and contains a building used as a personal residence. The Fiores’ property has ingress and egress to Haloran Lane, a north-south, private, non-dedicated roadway, essentially parallel to Dixie Drive, that
{¶ 4} In or around 1984, a brick wall, less than six feet in height, was constructed near the eastern boundary of the Largers’ property. The wall inhibited ingress and egress between the Largers’ property and Haloran Lane and acted as a buffer or screen between the Largers’ property and the Fiores’ property.
{¶ 5} In 1999, the owners of real property adjacent to and/or abutting Haloran Lane, including the Fiores and the Largers, signed an “Access Agreement,” which was recorded in the title records for the Fiores’ and the Largers’ properties. The access agreement states that the signatories desire to insure “a clear right of access to and from their property from * * * Haloran Lane” and provides that “the undersigned * * * covenant and agree that none of the undersigned shall take any action which in any way affects, infringes upon, or restricts the right of any other party to this Agreement * * * to the free and open access, including the right of ingress and egress, to said other party‘s property from Haloran Lane.”
{¶ 6} In 2005, the Largers arranged for the destruction of a portion of the brick wall along the eastern boundary of their property and created a break wide enough for vehicles to pass through. The Largers thereafter arranged for the construction of a paved driveway from the parking lot on their property to Haloran Lane, a three-foot portion of which was constructed atop the Fiores’ property. The Largers did not obtain a zoning permit or certificate for either the partial destruction of
{¶ 7} In 2007, without official permit or authorization, the Fiores arranged for the destruction of the section of the Largers’ driveway that was atop the Fiores’ property and for the restoration of the surface grade to its original state. In April or May 2008, Stuart Vaughn, who allegedly had a tenancy interest in the Largers’ property, placed gravel-like materials in the area where the paved driveway had been removed and raised the surface grade to the level of the adjacent surfaces of Haloran Lane and the Largers’ property. This facilitated the ingress and egress of vehicles between the Largers’ property and Haloran Lane without inhibiting drainage along Haloran Lane.
{¶ 8} Although this appeal stems from consolidated cases involving claims by both the Fiores and the Largers, the only claim relevant to this appeal is the Fiores’ claim for relief, pursuant to
{¶ 9} “In case * * * any land is or is proposed to be used in violation of sections 519.01 to 519.99, inclusive, of the Revised Code, or of any regulation or provision adopted by any board of township trustees under such sections, such board, the prosecuting attorney of the county, the township zoning inspector, or any adjacent or neighboring property owner who would be especially damaged by such violation, in addition to other remedies provided by law, may institute injunction, mandamus, abatement, or any other appropriate action or proceeding to prevent, enjoin, abate, or remove such unlawful * * * use. * * * ”
{¶ 11} At the bench trial conducted on September 3, 2008, the parties submitted a joint stipulation of facts and presented no testimony or additional evidence, leaving essentially legal questions for the court to resolve. The court therefore heard legal arguments from counsel and, after a brief recess, issued a ruling from the bench. The court stated that the Fiores had standing to bring an action under
{¶ 12} The following day, before the trial court journalized a dismissal entry, the Fiores filed a motion for reconsideration, urging the court to consider the equitable doctrine of unclean hands and its effect on the Largers’ estoppel defense. Specifically, the Fiores argued that the trial court failed to consider their argument
{¶ 13} On September 10, 2008, the trial court issued a decision and entry denying the Fiores’ motion for reconsideration. The trial court stated that its oral pronouncement of judgment was not an interlocutory order, subject to a motion for reconsideration. The court also rejected the Fiores’ argument on the merits, stating that it considered the doctrine of unclean hands before concluding that the Fiores were equitably estopped from pursuing their claim.
{¶ 14} The Fiores filed a timely notice of appeal and presently assert the following assignments of error:
ASSIGNMENT OF ERROR 1:
{¶ 15} “THE TRIAL COURT PREJUDICIALLY ERRED AS A MATTER OF LAW BY GRANTING JUDGMENT IN FAVOR OF THE LARGERS AND DISMISSING THE FIORES’ STATUTORY ZONING VIOLATIONS ABATEMENT CLAIM.”
ASSIGNMENT OF ERROR 2:
{¶ 16} “THE TRIAL COURT PREJUDICIALLY ERRED AS A MATTER OF LAW BY OVERRULING THE FIORES’ MOTION FOR RECONSIDERATION.”
{¶ 17} By their first assignment of error, the Fiores maintain that the trial court erred by granting judgment in favor of the Largers and dismissing their claim for relief
{¶ 18} The Fiores primarily argue that, because their claim for injunctive relief based on the Largers’ zoning violations is statutory, equitable doctrines like estoppel are inapplicable. To the contrary, the Largers respond that equitable principles apply to
{¶ 19} In Ohio, “when a statute grants a specific injunctive remedy to an individual or to the state, the party requesting the injunction ‘need not aver and show, as under ordinary rules in equity, that great or irreparable injury is about to be done for which he has no adequate remedy at law.’ ” Ackerman v. Tri-City Geriatric & Health Care, Inc. (1978), 55 Ohio St.2d 51, 56, quoting Stephan v. Daniels (1875), 27 Ohio St. 527, 536. Subsequent to Ackerman, various Ohio courts have held that, because
{¶ 20} In Baker, this court reviewed an injunction issued pursuant to
{¶ 21} In Ackerman, the Supreme Court of Ohio suggested a distinction between claims brought by a governmental agent and a private citizen. The Supreme Court noted the majority rule in federal jurisdictions and in a growing number of states that, “where an injunction is authorized by a statute designed to provide a governmental agent with the means to enforce public policy, ‘no balancing of equities is necessary,’ * * * and ‘(i)t is enough if the statutory conditions are made
{¶ 22} This court has not addressed the applicability of equitable principles and defenses in an
{¶ 23} “No person shall * * * use any land in violation of any zoning ordinance
{¶ 24} In Miller, the trial court granted an injunction, requiring the removal of those portions of the defendants’ carwash in violation of municipal zoning requirements. On appeal, this court determined that at least one plaintiff had standing to request injunctive relief under
{¶ 25} Despite the Miller plaintiffs’ standing and a clear zoning violation, this court balanced the equities and, ultimately, concluded that the plaintiffs were not entitled to an injunction against the defendants’ zoning violations. Instead, we ordered the municipality to regulate traffic on the adjacent roadway to resolve the inconvenience or injury to the plaintiffs rather than requiring the defendants to comply with the zoning requirements. Regarding the equitable principles that a court must consider in granting injunctive relief under
{¶ 26} “The extraordinary nature of the remedy by injunction calls for a particular application of equitable principles, and it may be said to be the duty of the court to consider and weigh the relative conveniences and comparative injuries to the parties which would result from the granting or refusal of injunctive relief. Because
{¶ 27} “When the court is thus asked to undo something that has been done, it must, for obvious reasons, act in a careful and conservative manner and grant the relief only in situations which so clearly call for it as to make its refusal work a real and serious hardship and injustice.
{¶ 28} “ * * * As in other cases of injunction, the court will balance the equities between the parties and consider the benefit to the plaintiff of a mandatory writ as against the inconvenience and damage to the defendant, and award relief accordingly.” Miller at 296-97.
{¶ 29} Other Ohio appellate courts have similarly considered equitable principles when examining claims by private citizens for injunctive relief under
{¶ 30} We discern no basis for applying a different analysis to a private citizen‘s claim under
{¶ 31} In their second argument under the first assignment of error, the Fiores contend that, even if the court was entitled to consider equitable principles in determining whether to issue injunctive relief, the court erred in applying estoppel here because the Largers did not come to the court with clean hands. Estoppel may be nullified if the party asserting it has “unclean hands.” Collins v. Moran, 7th Dist. No. 02 CA 218, 2004-Ohio-1381, ¶21. “The maxim, ‘he who comes into equity must come with clean hands,’ requires only that the [party invoking equity] must not be guilty of reprehensible conduct with respect to the subject matter of [the] suit.” Marinaro v. Major Indoor Soccer League (1991), 81 Ohio App.3d 42, 45, citing Kinner v. Lake Shore & M. S. Ry. Co. (1904), 69 Ohio St. 339, paragraph one of the syllabus. For the doctrine of unclean hands to apply, the party against whom it is asserted must be at fault in relation to the other party and in relation to the transaction upon which the claims are based. Trott v. Trott, 10th Dist. No. 01AP-852, 2002-Ohio-1077. Here, the Fiores maintain that the Largers’ zoning violations, including the construction of the brick wall less than six feet high, the partial removal of the brick wall, and the construction of a driveway onto Haloran Lane, demonstrate blatant misconduct that precludes them from relying on estoppel
{¶ 32} On appeal, the Fiores maintain that the trial court erred by not addressing their unclean hands argument, despite its discussion of other arguments raised at trial. We disagree. First, the trial court specifically rejected, on the record, the Fiores’ assertion that the wall on the Largers’ property violated the access agreement. Secondly, even if this statement did not suggest the trial court‘s rejection of the Fiores’ unclean hands argument, the trial court‘s judgment in favor of the Largers constitutes a presumptive rejection of that argument. See Church v. Fleishour Homes, Inc., 172 Ohio App.3d 205, 2007-Ohio-1806, ¶77. Therefore, we reject the Fiores’ contention that the trial court erred by not addressing its unclean hands argument.
{¶ 33} We additionally conclude that the Fiores’ unclean hands argument fails on its merits. By signing the access agreement, the Fiores agreed to take no action to restrict another party‘s right of ingress and egress from that party‘s property to Haloran Lane. The trial court aptly stated that the Fiores’ action to enforce the zoning code constituted an action to infringe upon and restrict the Largers’ ingress and egress between their property and Haloran Lane, in direct contravention of the access agreement. Although the Fiores correctly state that the access agreement is irrelevant to whether the Largers were in compliance with the zoning code, the
{¶ 34} In their second assignment of error, the Fiores maintain that the trial court erred by overruling their motion for reconsideration. The Fiores argue that the trial court erred in its analysis of the motion for reconsideration by mischaracterizing its oral decision as a final judgment, but they also concede that the court was divested of subject-matter jurisdiction upon entering final judgment, prior to ruling on the motion for reconsideration. In that regard, they argue that, because the final judgment entry divested the trial court of subject-matter jurisdiction, the court erred by deciding the motion for reconsideration.
{¶ 35} It is undisputed that interlocutory orders are subject to motions for reconsideration, but final judgments and orders are not. See Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 378, 379, fn. 1. We agree with the Fiores that the
{¶ 36} We also agree with the Fiores’ contention that the trial court was divested of subject-matter jurisdiction over this matter upon the filing of its final judgment entry on September 5, 2008, and, therefore, lacked jurisdiction when it issued its decision denying the motion for reconsideration. The trial court‘s entry of final judgment rendered the previously filed motion for reconsideration a nullity, and, therefore, the trial court‘s subsequent denial of that motion was also a nullity. See Perritt v. Nationwide Mut. Ins. Co., 10th Dist. No. 03AP-1008, 2004-Ohio-4706, ¶12. This court accordingly lacks jurisdiction to consider the Fiores’ second assignment of
{¶ 37} Having overruled the Fiores’ assignments of error, we affirm the judgment of the Montgomery County Court of Common Pleas.
GRADY and FROELICH, JJ., concur.
(Hon. Judith L. French, judge from the Tenth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
John H. Stachler
Nicholas M. Smith
Craig W. Saunders
Dennis M. Hanaghan
Mathias H. Heck, Jr.
Douglas Trout
Hon. Timothy N. O‘Connell