The opinion
[Cite as Upper Arlington City School Dist. Bd. of Edn. v. Upper Arlington Bldg. Dept., 2021-Ohio-3718.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Upper Arlington City School :
District Board of Education,
:
Appellant-Appellant,
: No. 20AP-576
v. (C.P.C. No. 20CV-4102)
:
City of Upper Arlington Building (REGULAR CALENDAR)
Department et al., :
Appellees-Appellees. :
D E C I S I O N
Rendered on October 19, 2021
On brief: Bricker & Eckler LLP, Christopher L. McCloskey,
Nelson M. Reid, and Tarik M. Kershah, for appellant.
On brief: Darren Shulman, Upper Arlington City Attorney,
for appellee City of Upper Arlington Building Department.
On brief: Arnold & Clifford LLP, James E. Arnold, and
Gerhardt A. Gosnell II, for appellee intervenor Jane Doe.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} After the Ohio Board of Building Appeals ("BBA") denied a variance in the
design of the bathrooms for its proposed elementary school, the Upper Arlington City
School District Board of Education ("School Board") filed an administrative appeal to the
Franklin County Court of Common Pleas. Because the City of Upper Arlington Building
Department ("City") stipulated to the variance, the School Board and the City filed a joint
motion for summary judgment that the trial court granted. One month later, Jane Doe, the
mother of a student who would attend the new elementary school, filed a motion to
No. 20AP-576 2
intervene and a motion seeking relief from judgment. The trial court granted both motions
and the School Board has appealed. As explained below, Jane Doe had no legally
protectable interest in the litigation and the trial court lacked authority to vacate the
judgment. Accordingly, we reverse and vacate the rulings granting Jane Doe's motions and
remand this case to the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} The School Board commissioned Architect Moody Nolan to design its new
elementary school, Windermere Elementary. (July 29, 2020 Stipulations of Fact at ¶ 2,
hereinafter, "Stipulations.") The School Board approved an architectural design that
included "single-occupant toilet rooms with floor-to-ceiling walls and solid, full-frame
lockable doors, identified by use for either sex," as well as "a communal lavatory" for
students. (Stipulations at ¶ 3.)
{¶ 3} After the City reviewed the plan, it issued an adjudication order that only
partially approved the new elementary school design and listed a number of items that did
not conform to the Ohio Building Code. (Stipulations at ¶ 5.) The order stated that the
bathroom design violated Section 2902.02 of the Ohio Building Code, Ohio Adm.Code
4101:1-29-01, which states: "Where plumbing fixtures are required, separate facilities shall
be provided for each sex." (Ex. A-1 to Stipulations, Item 13.) The order further provided:
"Provide separate restrooms for each sex. These shall be labeled on the plans and correct
signs provided." Id.
{¶ 4} The School Board appealed the nonconforming adjudication of the bathroom
design to the BBA. (Stipulations at ¶ 7.) In its appeal, the School Board argued that the
finding of nonconformance was "contrary to a fair interpretation or application" of the Ohio
Building Code, or, in the alternative, that the BBA should grant a variance which "would
not be contrary to the public interest and is warranted to avoid unnecessary hardship."
(Stipulations at ¶ 10-11.)
{¶ 5} In support of its position, the School Board presented testimony from several
representatives. Steve Dzuranin of Moody Nolan architects testified that the elementary
school design featured "three unisex restroom[ ] [facilities] for student use." (Tr. at 9-10.)
In "each restroom facility, each stall for the water closets [has] floor-to-ceiling walls, and
each stall has a solid full-framed lockable door. The facilities for [each] washroom are
No. 20AP-576 3
separate from that, and they are for shared use as well." (Tr. at 10.) Mr. Dzuranin noted
that the "entry into the washroom itself does not have a door. It is open so that staff can
monitor the students from a health perspective, making sure that they do wash their hands,
which is always a concern at the elementary school level; and then also from a safety
perspective to make sure that if an incident does arise, they can intervene." (Tr. at 11.)
{¶ 6} Paul Imhoff, the Superintendent of Upper Arlington Schools, described the
"lengthy process" in the community for planning its new elementary school. (Tr. at 22-23.)
The School Board believed that "single-user toilet rooms [were] going to alleviate the very
real issue of student anxiety that is caused by the use of more traditional group bathrooms."
(Tr. at 23.) Dr. Imhoff stated that the new bathroom designed improved safety: "student
supervision is positively impacted because a single teacher can more effectively supervise
students," as "all of the students are in the same area" for monitoring by teachers. (Tr. at
24.) He also emphasized "potty parity," which would reduce "lost time of instruction"
because children would "be able to go to the bathroom and not have to wait in line based
upon sex." Id. The design would also allow staff to more easily assist students with
disabilities or "any student who needs a bit of help." Id. Dr. Imhoff also stated that "safety
and privacy are greatly enhanced in our design, and it greatly reduces the risk of bullying
and harassment." (Tr. at 25.) "Many, many students are very nervous about the entire
bathroom experience, and making this a private experience more like they have at home is
good for every kid." Id. Dr. Imhoff had spoken "to many, many parents who state the use
of group bathrooms is one of the biggest areas of stress and anxiety for kids in school," as
such bathrooms provide "one of the greatest opportunities for bullying." Id. Dr. Imhoff
also noted that it was unnecessary to "classify students based upon gender," citing the
"growing number of students in all school districts who don't identify as male or female,
and the traditional bathroom design causes a great deal of stress and anxiety for these
students." Id. Simply, the appellant is seeking to obtain a variance to address student
safety and privacy on two fronts. First, to address the overall safety and privacy concerns
for every student attending Upper Arlington schools. Second, to address the all too real
stress, anxiety, and privacy concerns that transgender students face on a daily basis from
adults and peers simply because they openly identify differently from the assigned gender
they received at birth.
No. 20AP-576 4
{¶ 7} When questioned by the BBA, Dr. Imhoff agreed that some parents had
objected to the bathroom design, but their concerns had "not been based upon safety." (Tr.
at 30.) Rather, they were "people who look at this as a values issue and they think it's
somehow wrong to be a gender * * * nonconforming student." Id. Dr. Imhoff described "an
engagement process and a design process" that "went on for 18 months" with "full-scale
community meetings" and "volunteers who were a part of every building." (Tr. at 30-31.)
{¶ 8} Roger Eastep, the City's Chief Building Official, provided the following
position statement concerning the design:
I do not believe that the [BBA's] action in approving this
request will impact the safety of the building or its occupants.
If the [BBA] does not approve this request, the City would
further request clarity on the other buildings with a similar
plan. Please allow this letter to serve as notice that the Chief
Building Official does not find approval of this request will
result in safety hazard for this building or occupants.
(Stipulations at ¶ 9.)
{¶ 9} By a 3-2 vote, the BBA upheld the finding of noncompliance and did not issue
a variance. (Ex. A-2 to Stipulations.)
{¶ 10} The School Board appealed the BBA's final order to the trial court under R.C.
3781.031(D), which states: "Any party adversely affected by an order issued following an
adjudication hearing [of the BBA] may appeal to the court of common pleas of the county
in which the party is a resident or in which the premises affected by the order is located."
The School Board requested that the trial court either "determine as a matter of fact and
law that the proposed design of the School is a fair interpretation or application" of the Ohio
Building Code, or that it order the BBA to grant a variance. (June 24, 2020 Notice of
Administrative Appeal and Demand for Record.)
{¶ 11} The School Board and the City jointly moved the trial court for summary
judgment granting the variance to allow the proposed bathroom design. (July 29, 2020
Joint Mot. for Summ. Jgmt.) Both parties agreed that a variance under R.C. 3781.19 was
justified because "single-occupant toilet rooms identified for use by either sex are not
against the public interest and enforcement of the Building Code and Plumbing Code
provisions at issue will result in an unnecessary hardship." (Joint Mot. for Summ. Jgmt. at
2.) Separately, the School Board filed a brief that also argued for a variance, but additionally
No. 20AP-576 5
argued that the BBA had erred when it upheld the City's adjudication order. (Sept. 2, 2020
Brief of Appellant.)
{¶ 12} The trial court granted the parties' joint motion for summary judgment.
(Sept. 15, 2020 Decision.) It cited the evidence that the School Board and the City had
stipulated to, including the testimony before the BBA of the architect, the superintendent,
and the City's Chief Building Official, when ruling that "a preponderance of the evidence
supports the Court's finding that a literal enforcement of the Code as applied to the School
District's bathroom design will result in unnecessary hardship." (Decision at 9.) The trial
court also found that "no testimony or evidence presented at the BBA hearing"
demonstrated "that utilization of single-occupant toilet rooms identified for use by either
sex was against the public interest." Id. It noted that the International Building Code had
been amended "to expressly allow unisex single-user toilet rooms," and that the Ohio
Department of Commerce had "proposed these same exceptions to the Ohio Building
Code." (Decision at 11.) It also cited the parties' stipulation that the "requested variance is
not a public safety issue under the Code." Id. The trial court both granted the parties'
motion for summary judgment and remanded the case to the BBA with an order to issue
the requested variance. (Decision at 13.)
{¶ 13} One month later, Jane Doe filed a motion to intervene under Civ.R. 24. She
identified herself as "a resident of Upper Arlington and the mother of John Doe, a
kindergarten student at Windermere Elementary." (Oct 14, 2020 Mot. to Intervene at 2.)
She argued that the trial court "simply did not have the full story, nor an opportunity to
know the full story before entering summary judgment." Id. She asserted that the "plans
for only unisex bathrooms at the Windermere school were not disclosed or discussed in the
community meetings referenced in the testimony of School Superintendent Dr. Paul
Imhoff. And obviously, the public did not have an opportunity to present evidence to this
Court that a variance would not be in the public interest." Id. In support of her request to
intervene under Civ.R. 24, Jane Doe cited her son's attendance at Windermere Elementary
as evidence of her "personal interest in the subject matter of the action" and claimed that
her interest "will be (and in fact already has been impaired)" because she opposed the
variance. Id. at 4. Because the School Board and the City both sought the variance, they
"obviously" did not adequately represent her interests. Id. She also filed a motion for relief
No. 20AP-576 6
from judgment under Civ.R. 60(B) with the motion to intervene, asserting that it was "the
equivalent of a 'pleading' " as required by Civ.R. 24 in the context of an administrative
appeal. Id. at fn. 1.
{¶ 14} The next day, the trial court granted Jane Doe's motion to intervene as a
matter of right under Civ.R. 24(A). (Oct. 15, 2020 Decision and Entry.) The trial court
considered the motion timely because Jane Doe had filed it within 30 days of the summary
judgment ruling, " 'within days' of being informed of it," and before remand of the matter
to the BBA. Id. at 5. It cited Jane Doe's "personal interest in the subject matter of the appeal
as the mother of a current kindergarten student," agreed that "her interests have been
impaired because she had no opportunity to oppose the variance," and considered the
parties' "joint, uncontested and stipulated summary judgment" an impairment of "Jane
Doe's ability to protect her interests." Id. The trial court also found that the School Board
and the City would "not be unduly inconvenienced or prejudiced" because "the appeal
period has not run, the matter has not yet been remanded to the [BBA], and no variance
has been issued." Id. at 6. The trial court acknowledged that neither the School Board nor
the City "had the opportunity to file memoranda in support or opposition to the motion" to
intervene but justified ruling on the motion immediately in order to rule "prior to the
expiration of the appeal period and before the matter is remanded" to the BBA. Id. at 1.
For these reasons, the trial court granted the motion and accepted Jane Doe's motion for
relief from judgment under Civ.R. 60(B) in lieu of the pleading required by Civ.R. 24. Id.
at 6-7.
{¶ 15} The trial court also granted the motion for relief from judgment. (Nov. 30,
2020 Decision and Entry.) It found that Jane Doe had standing because "she sought to
intervene as an appellee, not an appellant." (Decision and Entry at 2-3.) Jane Doe had
moved for relief from judgment under Civ.R. 60(B), arguing "that she possesse[d] a
meritorious defense [and] is entitled to relief," while the School Board argued that a motion
under Civ.R. 60(B) was procedurally improper given the "special statutory proceeding" of
the appeal. (Decision and Entry at 4.) The trial court did not grant the motion under Civ.R.
60(B), but instead reasoned that it had been "procedurally improper" to grant the parties'
joint motion for summary judgment. Thus, it considered the judgment "void ab initio" and
ruled:
No. 20AP-576 7
After review and consideration, the Court finds Appellee's,
Jane Doe, Motion well-taken, and is hereby GRANTED, in
accordance with above-decision. The Court's September 15,
2020 Entry granting the School Board summary judgment is a
legal nullity and is hereby VACATED.
(Emphasis sic.) (Decision and Entry at 5.)
{¶ 16} The School Board has appealed, challenging the trial court's ruling to allow
Jane Doe to intervene and its decision to vacate the judgment, with the following
assignments of error:
[I.] [The] Trial Court erred in granting [the] motion to
intervene of Intervenor Jane Doe, in her individual capacity
and on behalf of her minor son John Doe through [the] Trial
Court's "Decision and Entry Granting Motion to Intervene of
Jane Doe (Filed October 14, 2020) and Order Adding Jane Doe,
Individually and on Behalf of her Minor Son, as an Appellee"
filed 10/15/20.
[II.] [The] Trial Court erred in granting [the] motion to vacate
judgment of Intervenor Jane Doe, in her individual capacity
and on behalf of her minor son John Doe through [the] Trial
Court's "Decision and Entry Granting Appellee's, Jane Doe,
Motion to Vacate Summary Judgment, filed October 15, 2020"
filed 11/30/20.
II. STANDARD OF REVIEW
{¶ 17} We apply an abuse of discretion standard to review a trial court's ruling on a
motion to intervene under Civ.R. 24. State ex rel. Merrill v. Ohio Dept. of Natural
Resources, 130 Ohio St.3d 30, 2011-Ohio-4612, ¶ 41 ("Whether intervention is granted as
of right or by permission, the standard of review is whether the trial court abused its
discretion in allowing intervention.").
{¶ 18} An abuse of discretion results if a trial court's ruling is "unreasonable,
arbitrary, or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). "An
unreasonable decision is one that is unsupported by a sound reasoning process." Lias v.
Beekman, 10th Dist. No. 06AP-1134, 2007-Ohio-5737, ¶ 12, citing AAAA Ents. v. River
Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). An
arbitrary ruling lacks an " 'adequate determining principle' " and is " 'not governed by any
fixed rules or standard.' " Downey v. 610 Morrison Rd., LLC, 10th Dist. No. 07AP-903,
No. 20AP-576 8
2008-Ohio-3524, ¶ 11, quoting Dayton ex rel. Scandrick v. McGee, 67 Ohio St.2d 356, 359
(1981). An unconscionable ruling " 'affront[s] the sense of justice, decency, or
reasonableness.' " U.S. Bank Natl. Assn. v. Collier, 10th Dist. No. 08AP-207, 2008-Ohio-
6817, ¶ 19, quoting Black's Law Dictionary (8th Ed.2004).
{¶ 19} Questions of law, which include those of a court's subject-matter jurisdiction,
are reviewed de novo, with no deference to the trial court's reasoning. Kingsley v. Ohio
State Personnel Bd. of Rev., 10th Dist. No. 10AP-875, 2011-Ohio-2227, ¶ 27. This standard
applies to the trial court's ruling vacating its previous entry of summary judgment, as it
purported to exercise its inherent authority when so doing.
III. ANALYSIS
{¶ 20} The School Board's assignments of error challenge the trial court's rulings
granting Jane Doe's motions for intervention under Civ.R. 24 and relief from judgment
under Civ.R. 60. Before addressing the substance of those rulings, we must resolve the
preliminary question of whether those Ohio Rules of Civil Procedure apply in an
administrative appeal under R.C. 3781.031 of a BBA decision to a court of common pleas.
{¶ 21} Rule 1 of the Ohio Rules of Civil Procedure determines the rules' applicability
to the trial court proceedings in this administrative appeal. See Gallick v. Franklin Cty. Bd.
of Revision, 10th Dist. No. 15AP-182, 2018-Ohio-818, ¶ 16-18 (applying Civ.R. 1 to
determine ("whether Civ.R. 59, which governs motions for new trial, applies to appeals
initiated under R.C. 5717.05" of decisions of the county board of revision); Richmond v. Bd.
of Rev., 64 Ohio App.2d 243, 245 (10th Dist.1979) (applying Civ.R. 1 to determine whether
the trial court had discretion under Civ.R. 6 to grant an extension of time to agency to file a
transcript in an appeal under R.C. 4141.26 of administrative determination employer
unemployment compensation rate).
{¶ 22} Under Civ.R. 1(A), the Ohio Rules of Civil Procedure apply "in all courts of
this state in the exercise of civil jurisdiction at law or in equity," subject to the exceptions
stated in section (C):
These rules, to the extent that they would by their nature be
clearly inapplicable, shall not apply to procedure (1) upon
appeal to review any judgment, order or ruling, * * * (8) in all
other special statutory proceedings; provided, that where any
statute provides for procedure by a general or specific reference
No. 20AP-576 9
to all the statutes governing procedure in civil actions such
procedure shall be in accordance with these rules.
{¶ 23} As the Supreme Court of Ohio has noted, "the rules are not categorically
inapplicable to appeals from administrative orders. Under Civ.R. 1(C), the rules apply
unless they are 'by their nature * * * clearly inapplicable.' " Ramsdell v. Ohio Civ. Rights
Comm., 56 Ohio St.3d 24, 27 (1990). The question of whether the Civil Rules apply "must
be decided on a case-by-case basis, depending on the statute involved." Id. In addition, "it
cannot be categorically said that the Rules of Civil Procedure do or do not apply. One must
begin with the general proposition that they do apply and address each rule on its own
merits." Haig v. State Bd. of Edn., 10th Dist. No. 89AP-1251, 1990 Ohio App. LEXIS 3331,
*13-14 (Aug. 9, 1990).
{¶ 24} "There are two considerations in determining whether the Civil Rules do not
apply: whether the procedural statute governs a special statutory proceeding and whether
that statute renders the civil rule at issue 'clearly inapplicable.' " Ferguson v. State, 151 Ohio
St.3d 265, 2017-Ohio-7844, ¶ 21. "An administrative appeal filed pursuant to a statute, * * *
is a special statutory proceeding." Gallick at ¶ 18. In this case, the School Board appealed
the BBA's decision to the trial court under R.C. 3781.031, which states:
Any party adversely affected by an order issued following an
adjudication hearing may appeal to the court of common pleas
of the county in which the party is a resident or in which the
premises affected by the order is located. The court shall not be
confined to the record as certified to it by the agency but any
party may produce additional evidence and the court shall hear
the matter upon the record and additional evidence any party
introduces. The court shall not affirm the agency's order unless
the preponderance of the evidence before it supports the
reasonableness and lawfulness of the order and any rule of the
board of building standards upon which the order is based in
its application to the particular set of facts or circumstances
involved in the appeal.
{¶ 25} "A review of a decision of the Board of Building Appeals is specifically
governed by R.C. 3781.031, although there is an interplay with R.C. Chapter 119." Parkman
Properties v. Tanneyhill, 11th Dist. No. 2007-T-0098, 2008-Ohio-1502, ¶ 16; see also R.C.
3781.031(A) ("Any department or agency of the state or any political subdivision that
enforces Chapters 3781. and 3791. of the Revised Code * * * shall issue an adjudication order
No. 20AP-576 10
within the meaning of sections 119.06 to 119.13 of the Revised Code"). Thus, appeals from
adjudication orders of the BBA are subject to the general provisions governing
administrative appeals under Chapter 119, as well as any more specific provision under R.C.
3781.031. See Sergakis v. Busch, 10th Dist. No. 99AP-283, 1999 Ohio App. LEXIS 6467, *7
(Dec. 30, 1999) (citing specific standards in R.C. 3781.031 that apply to BBA appeals and
the reviewable scope of evidence, as compared to R.C. 119.12); 84 Lumber Co. v. McMillen,
10th Dist. No. 76AP-364, 1976 Ohio App. LEXIS 8165, *17 (Dec. 14, 1976) (holding that the
broader scope of review under R.C. 3781.031 meant that "the trial court would not be
limited to reviewing whether the order of the agency was supported by reliable, probative
and substantial evidence" under R.C. 119.12, but instead would be allowed to "weigh all of
the evidence before it in order to determine whether the greater weight of such evidence
favors the order of the agency from which the appeal is taken"). Thus, the special statutory
proceedings outlined in both R.C. 3781.031 and 119.12 applied in the trial court.
{¶ 26} Turning to the second question under Ferguson, we ask whether either
"statute renders the civil rule at issue 'clearly inapplicable.' " Id. at ¶ 21. "A civil rule is
clearly inapplicable ' "only when [its] use will alter the basic statutory purpose for which the
specific procedure was originally provided in the special statutory action." ' " Id. at ¶ 24,
quoting Price v. Westinghouse Elec. Corp., 70 Ohio St.2d 131, 133 (1982), quoting State ex
rel. Millington v. Weir, 60 Ohio App.2d 348, 349 (10th Dist.1978). See State ex rel. Ohio
Civ. Rights Comm. v. Gunn, 45 Ohio St.2d 262, 266 (1976) (holding that the Civil Rules
were clearly inapplicable to "a proceeding to enforce a subpoena duces tecum issued by the
Civil Rights Commission" because "[t]o render the enforcement provisions of R. C.
4112.04(B)(6) subject to the complaint and summons requirements of the Civil Rules would
be contrary to the [statute's] mandates").
{¶ 27} Here, the first Civil Rule at issue is 24(A), which allows for intervention of
right. Given that courts have allowed intervention under Civ.R. 24(A) in R.C. 119.12
appeals, we cannot conclude that that statute renders the rule clearly inapplicable. See,
e.g., South Community, Inc. v. State Emp. Relations Bd., 38 Ohio St.3d 224, 225 (1988)
(holding that State Employee Relations Board was an "agency" for purposes of an
administrative appeal under R.C. 119.12, in an action in which school union had filed a
motion to intervene in the common pleas court); Euclid v. Liquor Control Comm., 10th
No. 20AP-576 11
Dist. No. 93APE12-1655, 1994 Ohio App. LEXIS 3819, *11 (Aug. 30, 1994) (affirming trial
court's ruling allowing Civ.R. 24(A) intervention of original applicants in city's R.C. 119.12
administrative appeal of decision of Liquor Control Commission, as applicants "were a
party to this litigation at the administrative level and have a significant interest in the
outcome of this litigation").
{¶ 28} With regard to appeals of decisions of the BBA under R.C. 3781.031, we find
no language in the statute that renders Civ.R. 24(A) clearly inapplicable. R.C. 3781.031
provides only limited instructions to the trial court hearing an appeal. The instructions
concern the administrative record (provided "at the expense of the agency"), venue (the
appeal is to be filed in "the court of common pleas of the county in which the party is a
resident or in which the premises affected by the order is located"), scope of the evidence
("any party may produce additional evidence and the court shall hear the matter upon the
record and additional evidence any party introduces"), and the standard of review (the trial
court can affirm only if "the preponderance of the evidence before it supports the
reasonableness and lawfulness of the order and any rule of the board of building standards
upon which the order is based in its application"). Intervention under Civ.R. 24 conflicts
with none of the foregoing provisions. See State ex rel. Montgomery v. Akron, 9th Dist.
No. 20698, 2002-Ohio-720 (affirming trial court's denial of motion to intervene under
Civ.R. 24 by city that failed to give notice required by R.C. 3734.101(B)(2), holding that
because the "statute expressly provides a specific mechanism with which to intervene in an
action brought pursuant to R.C. Chapter 3734, Civ.R. 24, which addresses intervention in
civil actions, does not apply"). Thus, we discern no basis for concluding that intervention
under Civ.R. 24(A), when properly allowed, might "alter the basic statutory purpose" of the
foregoing "specific procedure" under R.C. 3781.031. Ferguson at ¶ 23. Accordingly, we
turn to the School Board's first assignment of error.
A. First Assignment of Error
{¶ 29} In its first assignment of error, the School Board asserts that the trial court
abused its discretion by granting Jane Doe's motion to intervene under Civ.R. 24(A). The
School Board argues that any interest Jane Doe has in the proceeding is not legally
protectable, that she lacks standing to "appeal or participate in the administrative appeal,
and that she does not qualify as a party under either R.C. 3781.031 or R.C. 119.01(G)."
No. 20AP-576 12
(Appellant's Brief at 10-14.) The School Board also argues that the motion should have been
overruled because Jane Doe did not attach a pleading to it, as required by Civ.R. 24(C).
(Appellant's Brief at 15-17.)
{¶ 30} In response, Jane Doe argues that the School Board "confuses standing to
appeal an order of the BBA with standing to intervene as an appellee." (Emphasis sic.)
(Brief of Appellee Intervenor at 6.) Because "it was the School [Board], not Jane Doe, that
sought affirmative legal relief from the decision of the BBA," she argues that she does not
have "the obligation to establish standing to appeal" the BBA's decision. (Brief of Appellee
Intervenor at 7.) Citing Wagner v. Miami Cty. Bd. of Zoning Appeals, 2d Dist. No. 2003-
CA-19, 2003-Ohio-4210, and Riebe Living Trust v. Bd. of Lake Cty. Commrs., 11th Dist.
No. 2011-L-105, 2013-Ohio-59, she argues that "courts have recognized that an interested
non-party may intervene in an administrative appeal as an appellee where appropriate."
(Emphasis sic.) (Brief of Appellee Intervenor at 7.) In her view, intervention was justified
because "there is literally no one present in the Trial Court proceedings to defend the BBA's
decision" but herself. (Brief of Appellee Intervenor at 8.)
{¶ 31} Rule 24(A) of the Ohio Rules of Civil Procedure governs intervention of right.
The rule provides:
Upon timely application anyone shall be permitted to intervene
in an action: (1) when a statute of this state confers an
unconditional right to intervene; or (2) when the applicant
claims an interest relating to the property or transaction that is
the subject of the action and the applicant is so situated that the
disposition of the action may as a practical matter impair or
impede the applicant's ability to protect that interest, unless the
applicant's interest is adequately represented by existing
parties.
{¶ 32} There is a "liberal construction generally accorded Civ.R. 24 in favor of
intervention" if its "mandatory procedural requirements" are met. State ex rel.
SuperAmerica Group v. Licking Cty. Bd. of Elections, 80 Ohio St.3d 182, 184 (1997).
"Failure to meet any one of the elements in Civ.R. 24(A) will result in denial of the right to
intervene." Fairview Gen. Hosp. v. Fletcher, 69 Ohio App.3d 827, 831 (10th Dist.1990).
{¶ 33} Because there is no indication that any statute conferred "an unconditional
right to intervene" upon Jane Doe, we begin by examining her claimed "interest relating to
the property or transaction that is the subject of the action." Civ.R. 24(A). The interest
No. 20AP-576 13
claimed by the intervenor "must be one which is legally protectable." State ex rel. Dispatch
Printing Co. v. Columbus, 10th Dist. No. 99AP-766, 1999 Ohio App. LEXIS 3557, *11
(Aug. 5, 1999). In addition, the interest must be direct and substantial. Fairview Gen.
Hosp. at 833.
{¶ 34} In Dispatch Printing Co., an action to obtain public records brought by a
newspaper against the city's police department, a police union argued that its "interest in
preventing the public disclosure of 'member identifiable information' in violation of
its collective bargaining agreement" justified intervention. Id. at *10-11. Because "the Ohio
Supreme Court addressed" the claims in another case "and expressly held that neither had
any merit," we agreed with the trial court that the police union had "failed to demonstrate
that it has a legally protectable interest in the present action." Id. at *13.
{¶ 35} In Fairview General Hospital, a hospital asserted that it had an interest
justifying intervention in a declaratory judgment action in which another hospital sought
certification of a competing neonatal intensive care unit. Id. at 832. We rejected the
argument that a possible loss of business or increase in local health care costs amounted to
an interest that was direct, substantial, or legally protectable. Id. at 832-33.
{¶ 36} In reviewing the trial court's ruling and Jane Doe's arguments for
intervention, we find no explanation of her "interest relating to the property or transaction
that is the subject of the action" that justified intervention. Civ.R. 24(A). The trial court
addressed this element by stating only that she "has a personal interest in the subject matter
of the appeal as the mother of a current kindergarten student who attends Windermere
Elementary and will attend the new Windermere school building that is the subject of the
appeal when it opens for the 2021-22 school year." (Oct. 15, 2020 Decision at 5.) Jane Doe
said no more in the memorandum in support of her motion. Neither her briefing nor the
trial court's rulings make any connection between her status as a mother of a school pupil
and variance the parties seek. A nebulous "personal interest" is not the standard for
allowing intervention of right under Civ.R. 24(A). The proposed intervenors in Dispatch
Printing Co. and Fairview General Hospital were at least able to articulate an interest that
related to the subject matter of the litigation. Jane Doe's personal interest as the mother of
a pupil is far more attenuated and tangential than a party seeking to prevent economic loss
or to protect the disclosure of its members' personnel records. Like those parties, she has
No. 20AP-576 14
failed to articulate any direct, substantial, or legally protectable interest, and the trial court's
reliance on her "personal interest" was unreasonable.
{¶ 37} Jane Doe's failure to attach a pleading to her motion to intervene as required
by Civ.R. 24(C) also illustrates her lack of a legally cognizable interest in this litigation.
Civ.R. 24(C) states that a motion to intervene "shall be accompanied by a pleading, as
defined in Civ.R. 7(A), setting forth the claim or defense for which intervention." "Implicit"
in the rule's pleading requirement is the necessity that the intervenor be able to "claim an
'interest' which is direct, substantial and legal protectable." Fairview at 834. "The pleading
requirement is 'logical, as the applicant is asking to be made a party to the existing action.' "
Schaffer v. Jones, 1st Dist. No. C-160684, 2017-Ohio-7730, ¶ 18, quoting 1 Baldwin's Ohio
Practice, Civil Practice, Section 24:26 (2016). "When a motion to intervene is not
accompanied by a pleading, as required by Civ.R. 24(C), the motion should be denied." Id.
See also State ex rel. Citizen Action v. Hamilton Cty. Bd. of Elections, 115 Ohio St.3d 437,
2007-Ohio-5379, ¶ 22 (denying intervention because proposed intervenor "did not file any
pleading with its motion" and was untimely). The lack of a pleading stating a claim or
defense should have prompted the trial court to more critically inquire into the nature of
Jane Doe's interest. Instead, it accepted an accompanying motion for relief from judgment
under Civ.R. 60(B) as "compliant" with the rule. (Oct. 15, 2020 Decision at 6.) Because the
motion was not compliant with the rule's pleading requirement, the trial court's reasoning
was not sound.
{¶ 38} Although not raised by the School Board, we also question the trial court's
reasoning on the timeliness of the motion to intervene. The Supreme Court of Ohio has:
[L]aid out five factors for determining whether a motion to
intervene is timely:
"(1) the point to which the suit had progressed; (2) the purpose
for which intervention is sought; (3) the length of time
preceding the application during which the proposed
intervenor knew or reasonably should have known of his
interest in the case; (4) the prejudice to the original parties due
to the proposed intervenor's failure after he knew or reasonably
should have known of his interest in the case to apply promptly
for intervention; and (5) the existence of unusual
circumstances militating against or in favor of intervention."
No. 20AP-576 15
State ex rel. N.G. v. Cuyahoga Cty. Court of Common Pleas, 147 Ohio St.3d 432, 2016-
Ohio-1519, ¶ 23, quoting State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio
St.3d 501, 502-03 (1998).
{¶ 39} When finding the motion timely, the trial court reasoned that "the existing
parties to this appeal will not be unduly inconvenienced or prejudiced if Jane Doe is
permitted to intervene because the appeal period has not run, the matter has not yet been
remanded to the [BBA], and no variance has been issued." (Oct. 15, 2020 Decision at 6.)
However, any inconvenience or prejudice to the existing parties could not have been known
to the trial court because it granted Jane Doe's motion the day after she filed it. In doing
so, the trial court denied the parties the opportunity to respond allowed by the Civil Rules.
See Civ.R. 6(C)(1) ("Responses to a written motion * * * may be served within fourteen days
after service of the motion"). " 'If a trial court disregards the response time created by the
Ohio Rules of Civil Procedure, that court has committed reversible error.' " Cuervo v. Snell,
10th Dist. No. 99AP-1442, 2000 Ohio App. LEXIS 4404, *8 (Sep. 26, 2000), quoting
Gibson-Myers & Assoc. v. Pearce, 9th Dist. No. 19358, 1999 Ohio App. LEXIS 5010
(Oct. 27, 1999). See also Miller v. Lint, 62 Ohio St.2d 209, 215 (1980) ("However hurried a
court may be in its efforts to reach the merits of a controversy, the integrity of procedural
rules is dependent upon consistent enforcement because the only fair and reasonable
alternative thereto is complete abandonment.").
{¶ 40} The trial court's other reasons for finding the motion timely were not
persuasive. The significance of the fact that the appeals period had "not run" is unclear.
Compare App.R. 4(A)(1) (requiring notice of appeal to be filed "within 30 days" of final
order's entry) with Sept. 15, 2020 Jgmt. Entry and Oct. 15, 2020 Decision. One day
remained in the appeal period when the trial court ruled, but the salient fact was that Jane
Doe filed the motion to intervene after the entry of judgment. "Intervention after final
judgment has been entered is unusual and ordinarily will not be granted." State ex rel. First
New Shiloh Baptist Church at 503-04. It is also not clear why the trial court stated that the
matter had not yet been remanded to the BBA when its judgment doing so with instructions
to issue the variance had been entered by the clerk some 29 days earlier. Compare Civ.R.
58(A)(1) ("A judgment is effective only when entered by the clerk upon the journal") with
Sept. 15, 2020 Jgmt. Entry.
No. 20AP-576 16
{¶ 41} Jane Doe cites several cases in support of her contention that,
notwithstanding the requirement of Civ.R. 24(A) that she have an interest in the proceeding
in order to intervene, she should be able "to participate in this matter as an appellee."
(Emphasis sic.) (Brief of Appellee Intervenor at 6.)
{¶ 42} In Wagner v. Miami Cty. Bd. of Zoning Appeals, 2d Dist. No. 2003-CA-19,
2003-Ohio-4210, ¶ 17, the appellate court reversed the trial court's denial of the appellants'
motion to intervene on the sole ground that it "prematurely decided the motion to
intervene, in violation of" its local rules, by ruling before the appellants had been able to
present arguments in a reply brief. The appellants' "interest" under Civ.R. 24(A) was not
addressed by the Second District Court of Appeals, but we note that they were property
owners that had "opposed the granting of [a] conditional use permit" sought by a neighbor
for mineral extraction. Id. at ¶ 1. Unlike Jane Doe, they had "retained counsel and
participated in the administrative hearing process, presenting evidence in opposition" there
before the appeal to the trial court. Id. at ¶ 3.
{¶ 43} In Riebe Living Trust v. Bd. of Lake Cty. Commrs., 11th Dist. No. 2011-L-105,
2013-Ohio-59, the Eleventh District Court of Appeals reversed a trial court's ruling that the
proposed intervenors' motion was untimely. There were "disputed facts" concerning
whether the proposed intervenors had actual knowledge of the litigation and a settlement
agreement between the parties. Id. at ¶ 21. The trial court did not hold an evidentiary
hearing and "to the extent that the trial court's decision [was] based on the conclusion that
[they] knew about the litigation, it [was] incorrect as a matter of law because that issue was
not adjudicated in a manner that would have properly resolved the disputed facts." Id. The
proposed intervenors were property owners facing a $23,000 tap-in fee for a sewer line
arising from the parties' settlement agreement. As in Wagner, the issue of the proposed
intervenors' "interest" under Civ.R. 24(A) was not at issue.
{¶ 44} Neither Wagner nor Riebe Living Trust relieve Jane Doe of the burden to
state a direct, substantial, and legally protectable interest in order to intervene under Civ.R.
24(A). Because she did not, it was unreasonable for the trial court to sustain her motion
and an abuse of discretion to allow intervention. The voting booth, not the trial court, was
the appropriate forum for Jane Doe to advance her interests. See Youngstown Edn. Assn.
v. Youngstown City Bd. of Edn., 36 Ohio App.2d 35, 38 (7th Dist.1973) (affirming denial of
No. 20AP-576 17
Civ.R. 24 motion for intervention of right and permissive intervention filed by "concerned"
group of parents in litigation between school board and teachers, and "point[ing] out that
[the parents] are, as are all other citizens * * *, represented in school-teacher community
matters by an elected board. This is the result of a representative form of government. They
are bound to 'live with' their representatives.").
{¶ 45} The first assignment of error is sustained.
B. Second Assignment of Error
{¶ 46} In support of the second assignment of error, the School Board argues that a
Civ.R. 60(B) motion such as the one Jane Doe filed, is "clearly inapplicable" to an
administrative appeal filed in the common pleas court pursuant to a special statutory
proceeding under R.C. 119.12 or 3781.031. (Appellant's Brief at 19.) The School Board also
argues that Jane Doe's motion did not satisfy the requirements for relief under Civ.R. 60(B),
and that the trial court's conclusion that its previous summary judgment ruling was "void
ab initio" was "legally flawed." (Appellant's Brief at 21-27.)
{¶ 47} In response, Jane Doe argues that Civ.R. 60(B) may apply to appeals under
R.C. 3781.031 because they "are materially different from those under R.C. 119.12," as they
may involve the introduction of additional evidence. (Brief of Appellee Intervenor at 20.)
In addition, R.C. 3781.031 does not contain the language in R.C. 119.12(O) that states that
the trial court's judgment "shall be final and conclusive unless reversed, vacated or modified
on appeal." (Brief of Appellee Intervenor at 21.) She also points out that the trial court did
not actually grant the motion for relief from judgment on the grounds raised by her motion,
but instead "vacated its prior entry of summary judgment as void"; thus, she requests that
the case be remanded for the trial court to consider her motion on its merits. (Brief of
Appellee Intervenor at 14.)
{¶ 48} Because we have held that the trial court abused its discretion when it granted
Jane Doe's motion to intervene, she did not have standing to have her motion for relief from
judgment to be considered on its merits. See Ericsson Inc. v. InterDigital Communications
Corp., 418 F.3d 1217, 1224 (Fed.Cir.2005) ("Without intervention, there is no proper party
with standing to be afforded relief under Rule 60(b)."); See also Lopez v. Merit Ins. Co.,
109 Nev. 553, 853 P.2d 1266 (Nev.1993) (holding that due to an erroneous grant of
intervention, the proposed intervenor had never actually been a party and could not
No. 20AP-576 18
therefore seek relief from judgment under applicable civil rule). Thus, if the trial court had
granted relief under Civ.R. 60(B), we would not review the merits of the ruling, but would
instead simply vacate it as an artifact of its erroneous ruling granting intervention. See
Ericsson at 1224.
{¶ 49} Here, however, the trial court's reasons had nothing to do with the arguments
under Civ.R. 60(B) raised in Jane Doe's motion. Thus, we are compelled to address the
trial court's ruling. It reasoned as follows:
Without determining whether the Civil Rules apply, the Court
finds that its grant of summary judgment was procedurally
improper. While the Court was initially surprised that a Joint
Motion for Summary Judgment had been filed in an
administrative appeal, it relied upon the representations of
counsel for both the School Board and the City that such a
motion was uncontested and was proper, necessary and
appropriate given time constraints and the interests of judicial
economy. However, based upon subsequent developments, the
Court questions the procedural vehicle used to obtain the
desired result (i.e., a joint motion for summary judgment as
opposed to the normal administrative appellate briefing
schedule).[] The Court finds that the Joint Motion for
Summary Judgment circumvented the normal procedure for
administrative appeals and the Court's deviance therefrom was
procedurally improper. Instead, the Court should have
followed the normal briefing schedule and allowed the record
to fully develop before rend[er]ing a decision. Therefore, the
Court's September 15, 2020 Entry granting summary judgment
is void ab initio.
(Emphasis sic.) (Nov. 30, 2020 Decision and Entry at 5.)
{¶ 50} Because the trial court did not actually grant the motion for relief from
judgment under Civ.R. 60(B), any discussion of whether the rule is "clearly inapplicable" in
an R.C. 3781.031 appeal would be advisory. See, e.g., German Village Soc., Inc. v.
Columbus City Council, 10th Dist. No. 91AP-1122, 1992 Ohio App. LEXIS 2152, *10
(Apr. 16, 1992) (declining to "issue what would be an advisory opinion" on appellant's
assignment of error after determining that the trial court had lacked jurisdiction to enter
judgment upholding variance). We therefore decline to address that issue and instead turn
to the trial court's actual reason for vacating the judgment.
No. 20AP-576 19
{¶ 51} We emphasize that the trial court ruled that its judgment was "void ab initio"
because, in granting the parties' motion for summary judgment, it had "circumvented the
normal procedure for administrative appeals" by ruling on the parties' motion. (Nov. 30,
2020 Decision and Entry.) Instead, the trial court believed that it "should have followed
the normal briefing schedule and allowed the record to fully develop before rend[er]ing a
decision."1 Id.
{¶ 52} Any procedural irregularity that led the trial court to grant summary
judgment did not render the judgment void. "Procedural irregularities affect the court's
jurisdiction over the particular case and render a judgment voidable, whereas a judgment
rendered by a court that lacks subject-matter jurisdiction is void." Howell v. Howell, 10th
Dist. No. 13AP-961, 2014-Ohio-2195, ¶ 8, citing In re J.J., 111 Ohio St.3d 205, 2006-Ohio-
5484, paragraph one of syllabus. In this case, there is no indication that the trial court
lacked subject-matter jurisdiction over the appeal or personal jurisdiction over the parties
that would have justified employing its inherent power to vacate void judgments. See
Patton v. Diemer, 35 Ohio St.3d 68, 70 (1988) (holding that "a judgment rendered by a
court lacking subject matter jurisdiction is void ab initio. Consequently, the authority
to vacate a void judgment is not derived from Civ.R. 60(B), but rather constitutes an
inherent power possessed by Ohio courts"). The defects perceived by the trial court
describe only a voidable judgment, but "[a] court has no inherent authority to vacate
voidable judgments." Howell at ¶ 8, citing McIntyre v. Braydich, 11th Dist. No. 96-T-5602,
1997 Ohio App. LEXIS 5449 (Dec. 5, 1997). See also Yakubik v. Yakubik, 9th Dist. No.
19587, 2000 Ohio App. LEXIS 1267, *6 (Mar. 29, 2000) ("Correcting errors of law made by
the trial court is properly the role of the appellate court, not the trial court."). Moreover,
we question the trial court's assessment of summary judgment in an R.C. 3781.031 appeal
as "procedurally improper," as it has been used as a vehicle to resolve such appeals in the
Franklin County Court of Common Pleas. See Sergakis. In light of the foregoing, we
conclude that the trial court erred when it vacated its entry of summary judgment. The
second assignment of error is sustained.
1 Although the trial court claimed that the parties' "Joint Motion for Summary Judgment circumvented the
normal procedure for administrative appeals," the School Board filed a brief with supporting exhibits on
September 2, 2020 in support of the appeal, some six weeks before Jane Doe filed the motion to intervene
on October 14, 2020.
No. 20AP-576 20
IV. CONCLUSION
{¶ 53} Because Jane Doe lacked a legally protectable interest in this case, the trial
court abused its discretion by granting her motion to intervene under Civ.R. 24(A). The
trial court also erred by vacating its previous entry of summary judgment, which was not
void. Accordingly, we sustain the School Board's assignments of error and vacate trial
court's rulings. We remand the case to the trial court for further proceedings consistent
with this decision.
Judgment reversed; case remanded.
BROWN and BEATTY BLUNT, JJ., concur.
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