Opinion

Carstensen v. Allen Twp. Bd. of Trustees

237 N.E.3d 881
2024 Ohio 870

Court: Ohio Court of Appeals
Filed: Mar 8, 2024
Status: Published
On the bench: Osowik
Cited by: 2 cases
Authority: More cited than 45.8%

The opinion

[Cite as Carstensen v. Allen Twp. Bd. of Trustees, 2024-Ohio-870.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

OTTAWA COUNTY

William J. Carstensen Court of Appeals No. OT-23-010

Appellant Trial Court No. 22 CV 361

Board of Trustees of Allen Township DECISION AND JUDGMENT

Appellee Decided: March 8, 2024

*****

William J. Carstensen, pro se.

James J. VanEerten, Ottawa County Prosecuting

Attorney, for appellee.

*****

OSOWIK, J.

{¶ 1} Appellant, William J. Carstensen, pro se, appeals from the judgment of the

Ottawa County Court of Common Pleas dismissing his appeal from a demolition order

issued by appellee, Board of Trustees of Allen Township (“the Board”). For the reasons

that follow, the trial court’s judgment is affirmed.

Statement of the Case and the Facts

{¶ 2} Carstensen is the owner of real property located at 22631 Toledo Street,

Curtice, Ottawa County, Ohio. The property is the site of two structures, namely an old

church and an accessory building. On April 12, 2022, the Allen Township Trustees issued

a resolution declaring the property to be “insecure, unsafe and/or structurally defective.”

The resolution further provided that the proper way to render the property safe was to: (1)

properly disconnect any and all utilities on the premises; (2) properly cap any well that

may be on the premises; (3) crush and fill any cistern or portions of a septic system on the

premises; (4) tear down the structure, remove all materials and debris and properly

dispose of same; and (5) remove the foundation, fill, grade, and seed pursuant to local

ordinance.

{¶ 3} Carstensen timely appealed the resolution order to the Board. A hearing on

the matter was held on August 23, 2022. At the hearing, the Board heard testimony from

three witnesses, including Carstensen, Allen-Clay Joint Fire District Chief Michael

Musolf, and Allen Township Zoning Inspector Nancy Sabin. The Board also admitted

into evidence several exhibits in the form of photos and reports.

{¶ 4} After the appellate hearing, the Board issued a document entitled “Findings

of Fact and Order,” which described the hearing proceedings and named the hearing

participants. The document also contained a finding by the Board that the

recommendations that were included in the Allen Township Fire Chief’s initial report

from August 2019 remained appropriate, “in as much [sic] as the matters which created

an insecure, unsafe and structurally defective condition have not been remedied by the

Appellant as evidenced by the Allen Township Fire Chief’s report dated August 22,

2022.” Thus, it was once again ordered that: (1) all utilities on the premises be properly

disconnected; (2) any well on the premises be properly capped; (3) any cisterns or

portions of a septic system on the premises be crushed and filled; (4) the structure be torn

down and all materials and debris be removed and properly disposed of; and (5) the

foundation be removed, with filling, grading and seeding pursuant to local ordinance. It

was further ordered that the total cost of removing the structure be paid out of the

Township General fund and then remain a lien upon the land until paid.

{¶ 5} On November 18, 2022, appellant filed in the trial court a Complaint to

Appeal Trustee’s Order and for Injunctive Relief. In the complaint, appellant requested

that the Board be enjoined from trespassing on the subject property or from taking any

further action to demolish or damage that property.

{¶ 6} On December 12, 2022, the Board filed a motion to dismiss on the grounds

that: (1) the administrative appeal was not timely filed; and (2) that Carstensen had failed

to request the issuance of a praecipe for preparation of the record. Carstensen filed a

memorandum in opposition to the Board’s motion, wherein he argued that if the court

were to allow the Board to go forward with the demolition of the subject buildings before

Carstensen had a reasonable opportunity to make additional repairs, “it would be unjust,

unfair, and against the Rules of Equity this Court should apply.”

{¶ 7} On March 7, 2023, the trial court issued a decision and order granting the

Board’s motion to dismiss on the grounds that the failure to file a request for the issuance

of a praecipe was fatal to Carstensen’s cause of action. Carstensen timely appealed from

this decision and order.

Assignment of Error

{¶ 8} Appellant asserts the following assignment of error on appeal:

I. The trial court erred in granting Defendant’s Motion to

Dismiss.

Analysis

{¶ 9} It is undisputed in this case that the decision from which Carstensen

appealed was issued pursuant to R.C. 505.86. Appeals of decisions issued pursuant to

R.C. 505.86 are governed by R.C. 2506.01, et seq. See R.C. 505.86 (C)(4). R.C. 2506.02

provides that “[w]ithin forty days after filing a notice of appeal * * *, the officer or body

from which the appeal is taken, upon the filing of a praecipe by the appellant, shall

prepare and file in the court to which the appeal is taken, a complete transcript of all the

original papers, testimony, and evidence offered, heard, and taken into consideration in

issuing the final order, adjudication, or decision.” (Emphasis added.)

{¶ 10} The necessity for a correct filing of an R.C. 2506.02 transcript becomes

evident upon a reading of R.C. 2506.03, “which limits the trial court’s role of review to

the transcript of [the] administrative agency’s proceedings.” Rodzen Warren City Health

Dept., 11th Dist. Trumbull No. 3633, 1987 WL 8230, *1 (Mar. 20, 1987), see also

Wikliffe Firefighters Assn., Local 1536 v. Wikliffe, 66 Ohio App.3d 681, 684-685, 586

N.E.2d 133 (11th Dist.1990) (in the hearing of administrative appeals, the court shall be

confined to the transcript as filed pursuant to R.C. section 2506.02 of the Revised code).

{¶ 11} Failure of an appellant to comply with R.C. 2506.02 “provides grounds for

the trial court to properly deny his or her appeal,” Wikliffe at 685, citing Rodzen, because

“‘[w]here no transcript has been filed as provided in Chapter 2506, Revised Code, the

Common Pleas Court has no basis or authority to permit the introduction of evidence and

no authority to proceed with the appeal.’” Avondale Community Council v. Zoological

Society of Cincinnati, 1st Dist. Hamilton No. C-930955, 1995 WL 298185, *1 (May 17,

1995), quoting Wickliffe at 685, citing Grant v. Washington Twp., 1 Ohio App.2d 84, 203

N.E.2d 859 (2d Dist.1963); see also Brosek v. City of Brook Park Board of Zoning

Appeals, 8th Dist. Cuyahoga No. 34544, 1976 WL 190797, *3 (Jan. 15, 1976) (holding

that without a transcript before it, the court of common pleas had no authority to proceed

at all under R.C. 2505.06).

{¶ 12} There is no question that Carstensen failed to request the issuance of a

praecipe for preparation of the record in this case. As a result of this failure, no record of

proceedings was ever transmitted to the trial court and, therefore, there was no basis on

which to review the decision of the Board. Accordingly, the trial court properly granted

the Board’s motion to dismiss.

{¶ 13} In this appeal, Carstensen makes no argument relating to the foregoing

analysis. Instead, he argues that principles of equity should control to excuse his delays in

making the prescribed repairs and, further, that he should be given a reasonable time to

complete those repairs. Although Carstensen’s complaint was captioned “Complaint to

Appeal Trustee’s Order and For Injunctive relief,” we find that the asserted cause of

action for injunctive relief must fail because “in general, injunctive relief is a remedy, not

a cause of action.” Woods v. Sharkin, 2022-Ohio-1949, 192 N.E.3d 1174, ¶ 70 (8th

Dist.); see also Bresler v. Rock, 2018-Ohio-5138, 117 N.E.3d 184, ¶ 45 (10th Dist.) (“In

general, injunctive relief is a remedy, not a cause of action.”).

{¶ 14} To the extent that Carstensen’s action can be construed as asserting a claim

for trespass, we find that it still must fail. To make a claim for injunctive relief to prohibit

a trespass by the Board onto his property, Carstensen must demonstrate a lack of

authority on the part of the Board to enter upon his land. See Kramer v. Angel’s Path,

L.L.C., 174 Ohio App.3d 359, 2007-Ohio-7099, 882 N.E.2d 46 (6th Dist.) (“The elements

of trespass include ‘(1) an unauthorized intentional act and (2) entry upon the land in the

possession of another.’”). Carstensen makes no claim -- and there is nothing in the record

to suggest -- that the Board did not follow R.C. 505.86 requirements for removing an

unsafe structure. Upon satisfying the requirements set forth by R.C. 505.86, the Board

became authorized to enter upon Carstensen’s land to remedy the defective conditions

upon it. See Shelton v. Twin Twp., 2015-Ohio-1602, 30 N.E.3d 1047 (12th Dist.) (where

township followed requirements set forth in R.C. 505.86 for removing an unsafe

structure, summary judgment as to wrongful demolition claim should have been granted

in township’s favor). As a result, Carstensen cannot establish a cause of action for

trespass in this case.

{¶ 15} Because Carstensen’s complaint fails to state a cause of action, either for

trespass or for injunctive relief, and, further, because Carstensen failed to request the

issuance of a praecipe for preparation of the record in this case pursuant to R.C. 2506.02,

we find that the trial court did not err in granting the Board’s motion to dismiss.

Accordingly, Carstensen’s sole assignment of error is found not well-taken.

Conclusion

{¶ 16} The judgment of the Ottawa County Court of Common Pleas is affirmed.

Appellant is to pay the costs of appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.