The opinion
[Cite as Troy Twp. Bd. of Trustees v. Lawson, 2017-Ohio-7216.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BOARD OF TRUSTEES OF TROY
TOWNSHIP, JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
BENJAMIN D. LAWSON, ET AL., : Case No. 17-COA-003
:
Defendants - Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County
Court of Common Pleas, Case No.
09-CIV-229
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 11, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
CHRISTOPHER R. TUNNELL BENJAMIN D. LAWSON
Ashland County Prosecutor FRANCES P. LAWSON
384 Twp Rd. 1031
By: MICHAEL D. DONATINI Nova, Ohio 44859
Assistant Prosecuting Attorney
110 Cottage St., 3rd Fl.
Ashland, Ohio 44805
Ashland County, Case No. 17-COA-003 2
Baldwin, J.
{¶1} Defendant-appellants Benjamin D. Lawson and Frances P. Lawson appeal
from the January 25, 2017 Judgment Entry of the Ashland County Court of Common Pleas
finding them in contempt.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 19, 2009, appellee Board of Trustees of Troy Township filed a
complaint against appellants Benjamin D. Lawson and Frances P. Lawson, seeking to
enforce the township Zoning Resolution. Appellee, in its complaint, alleged that appellants
had located and maintained mobile offices on their property and had not obtained a zoning
certificate for the same in violation of Section 801 of the Troy Township Zoning Resolution.
Appellee further alleged that appellants had violated Section 511 of the Zoning Resolution
because the mobile offices were in a dilapidated and deteriorated condition that constituted
a nuisance and that appellants were using their property in a manner that violated sections
301(3) and 417 of the Zoning Resolution because the mobile office units did not meet the
criteria for manufactured or modular homes. Finally, in their complaint, appellee alleged
that appellants were keeping junk items on their property in violation of Section 502 of the
Zoning Resolution. Appellants filed a pro se answer on May 28, 2009. Appellants, in their
answer, cited to R.C. 303.21, which exempts agricultural uses from countywide zoning
under certain circumstances.
{¶3} Appellee, on October 1, 2009, filed a Motion for Judgment on the Pleadings
pursuant to Civ.R. 12(C). Appellants filed a memorandum in opposition to the same on
October 8, 2009, citing to R.C. 303.21. Appellee filed a reply on October 15, 2009. The
trial court, pursuant to a Judgment Entry filed on February 8, 2010, denied such motion.
Ashland County, Case No. 17-COA-003 3
{¶4} A mediation conference was held on July 14, 2010 and the case was
settled. The parties’ Settlement Agreement was attached to the Mediation Status Report
that was filed on July 15, 2010. An Agreed Judgment Entry dismissing the case was filed
on October 6, 2010.
{¶5} Thereafter, on October 13, 2015, appellee filed a Motion to Show Cause,
alleging that appellants were in contempt for failing to comply with the July 14, 2010
settlement. A hearing on the motion was held on December 11, 2015. As memorialized in
a Judgment Entry filed on January 25, 2017, the trial court found that appellants had failed
to comply with the Settlement Agreement and found them in contempt. The trial court
granted appellants time to purge their contempt.
{¶6} Appellants now appeal from the trial court’s January 25, 2017 Judgment
Entry, raising the following assignments of error on appeal:
{¶7} I. BENJAMIN LAWSON AND FRANCES LAWSON SHALL IMMEDIATELY
BEGIN TO REMOVE ALL HALF STRUCTURES SITUATED ON THE PREMISES
SITUATED AT 384 TOWNSHIP RD. NOVA OHIO, AND SHALL COMPLETE SUCH
REMOVAL ON OR BEFORE MAY 1, 2017.
{¶8} II. BENJAMIN D. LAWSON AND FRANCES LAWSON SHALL
IMMEDIATELY BEGIN TO FULLY CONSTRUCT THE RESIDENCE LOCATED AT 384
TOWNSHIP RD 1031 NOVA OHIO, SHALL COMPLETE SUCH CONSTRUCTION
BEFORE JUNE 15, 2017, AND DO SO IN ACCORDANCE WITH THE PLANS INCLUDED
WITH THE TROY TOWNSHIP BOARD OF ZONING APPEALS APPLICATION
(INCLUDING WITHOUT LIMITATION, A PITCHED ROOF, A BRICK FACADE AND A
FOUNDATION).
Ashland County, Case No. 17-COA-003 4
{¶9} III. BENJAMIN LAWSON AND FRANCES LAWSON SHALL ON OR
BEFORE JUNE 30, 2017 PLANT PINE TREES ALONG SOUTH AND EAST SIDES OF
THE 384 TOWNSHIP ROAD 1031 NOVA OHIO PROPERTY, AND SHALL MAINTAIN OR
REPLACE ANY OF SAID TREES AS REQUIRED.
I, II, III
{¶10} Appellants, in their three assignments of error, do not specifically challenge
the trial court’s contempt finding against them. Rather, appellants specifically contend that
under R.C. 519.21, appellee had no power to prohibit “the use of any land for agricultural
purposes or the construction or use of buildings or structures incident to the use for
agricultural purposes of the land on which such buildings or structures are located,..” and
that they were using their land and/or structures on their land for agricultural purposes.
Appellants further argue that, by ordering them to plant pine trees, appellee denied them
the rightful enjoyment of their farm.
{¶11} The trial court, in its January 25, 2017 Judgment Entry, ordered, in part,
that, in order to purge themselves of contempt, appellants were required to do the
following:
{¶12} 1. Benjamin D. Lawson and Frances Lawson shall immediately begin to
remove all half structures situated on the premises located at 384 Township Road 1031,
Nova, Ohio, and shall complete such removal on or before May 1, 2017;
{¶13} 2. Benjamin D. Lawson and Frances Lawson shall immediately begin to
fully construct the residence located at 384 Township Road 1031, Nova, Ohio, shall
complete such construction on or before June 15, 2017, and shall do so in accordance
Ashland County, Case No. 17-COA-003 5
with the plans included with the Troy Township Board of Zoning Appeals application
(including, without limitation, a pitched roof, a brick facade and a foundation);
{¶14} Benjamin D. Lawson and Frances Lawson shall, on or before June 30,
2017, plant pine trees along the south and east sides of the 384 Township Road 1031
Nova, Ohio property, and shall maintain or replace any of said trees as required, through
October 1, 2017.
{¶15} As noted by appellee, these are the same conditions to which appellants
agreed as a condition of the case being settled and dismissed. Had appellants wished to
pursue the agricultural use defense or other defenses, they could have declined to settle
the case, proceeded to trial and presented evidence. Appellants, however, did not do so
and have waived the defenses. “Waiver” is defined as the voluntary relinquishment of a
known legal right. Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 2006-
Ohio-6553, at ¶ 49. By entering into the settlement agreement, appellants affirmatively
waived the agricultural use or other defenses.
{¶16} Moreover, [w]hen portions of the transcript necessary for resolution of
assigned errors are omitted from the record, the reviewing court has nothing to pass upon
and thus, as to those assigned errors, the court has no choice but to presume the validity
of the lower court's proceedings, and affirm.” Knapp v. Edwards Laboratories, 61 Ohio
St.2d 197, 199, 400 N.E.2d 384 (1980). “The duty to provide a transcript for appellate
review falls upon the appellant. This is necessarily so because an appellant bears the
burden of showing error by reference to matters in the record.” Id.
Ashland County, Case No. 17-COA-003 6
{¶17} Appellants have not provided this Court with a transcript of the December
11, 2015 hearing. Without a transcript, we must presume the validity of the trial court's
proceedings and affirm.
{¶18} Appellants’ three assignments of error are, therefore, overruled.
{¶19} Accordingly, the judgment of the Ashland County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Gwin, P.J. and
John Wise, J. concur.