IN THE SUPREME COURT OF OHIO

Brunswick Hills TownshipBoard of Trustees

Appellant

V.

Thomas Ludrosky, et al.

Appellees

On Appeal from the Medina CountyCourt of Appeals,

Ninth Appellate District

Court of AppealsCase No. 11 CA0026-M

MEMORANDUM IN SUPPORT OF JURISDICTION OF THE APPELLANTBRUNSWICK HILLS TOWNSHIP BOARD OF TRUSTEES

Dean Holman (0020915)Medina County ProsecutorDavid J. Folk (0083297) (COUNSEL OF RECORD)Medina County Assistant Prosecuting AttorneyMedina County Prosecutor's Office72 Public SquareMedina, Ohio 44256Telephone 330-723-9536Fax No. 330-764-8400dfolk@medinaco.org

COUNSEL FOR APPELLANT BRUNSWICK HILLS TOWNSHIP BOARD OF TRUSTEES

Joseph R. Spoonster (0070863)

FORTNEY & KLINGSHIRN

4040 Embassy Parkway, Suite 280Akron, Ohio 44333Telephone 330-665-5445Fax No. 330-665-5446jspoonster@fklaborlaw.com

COUNSEL FOR APPELLEE THOMAS LUDROSKY, ET AL.

C;_E6?6c UF ^Oi1RTSUPREME CdURT Jr OHIO

TABLE OF CONTENTSPage

L THE BRUNSWICK HILLS TOWNSHIP BOARD OF TRUSTEES APPEAL IS OFPUBLIC OR GREAT GENERAL INTEREST ............................................ 1

II. STATEMENT OF THE CASE AND FACTS ............................................. 2

IV. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ........................... 4

Appellant's Proposition of Law: The appellate court impermissiblysubstituted its judgment for that of the local authority and that of the trial

court

l. Appellate Court's Standard of Review ............................................ 4

2. Townships are Permitted to Regulate Land-Use through Zoning ............... 5

3. Argument ............................................................................. 6

V. CONCLUSION ................................................................:............... 10

Certificate of Service .................................................................................. 11

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I. THE BRUNSWICK HILLS TOWNSHIP BOARD OF TRUSTEES APPEAL IS OFPUBLIC OR GREAT GENERAL INTEREST

The appellate court's split-decision that the Ludroskys are not operating a crane rental and

services business from their residential property, warrants this Court's review, as that holding has the

potential to undermine the statutory authority conferred on local governments to segregate uses that

are incompatible, to prevent commercial activity in residential areas, and to preserve the character of

a community. The appellate court impermissibly substituted its own judgment for that of the local

zoning authority which determined that the Ludroskys were conducting a business in violation of

township zoning regulations, and for that of the trial court which upheld the zoning authority's

decision.

The Ohio Legislature has determined that there are a number of public policies underlying a

township's authority to zone for land uses. Specifically, land use zoning promulgates the public

health, safety, convenience, comfort, prosperity and general welfare of local communities.

Moreover, good land use zoning achieves these ends in a systematic and evenhanded manner. The

court of appeal's decision threatens these policy considerations.

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II. STATEMENT OF THE CASE AND FACTS

The Appellees in this matter, Thomas and Kimberly Ludrosky (collectively, "the Ludroskys")

are the owners of a parcel of land located at 5035 Sleepy Hollow Road in Brunswick Hills Township,

Medina County, Ohio and more fully described as Permanent Parcel No. 01-02C-16-031. Kim

Ludrosky owns Timberwolf, Inc., a construction services business, providing light crane service to

local home and small building contractors. Thomas Ludrosky, Kim's husband, is currently,

Timberwolf's only employee. The Ludroskys own two cranes that they use in connection with their

business: (1) a 30-ton 1998 Terex T-340; and (2) a 20-ton 2001 Volvo WG34. The Ludroskys use

an accessory building on the Property as a storage facility for their crane rental and service business.

In a letter dated February 4, 2009 the Brunswick Hills Township Zoning Inspector issued a

determination to Edward and Linda Sholtis of 5055 Sleepy Hollow Road, Brunswick Hills

Township, that the Ludroskys were not in violation of the Brunswick Hills Township Zoning

Regulations. Thereafter, the Sholtises served the Brunswick Hills Township Board of Zoning

Appeals a Notice of Appeal challenging the determination by the Zoning Inspector. The Shotises

challenged the Zoning Inspector's determination, contending that the residents at 5035 Sleepy

Hollow Road were operating a business from the premises by using such premises as primary and

incidental storage facilities for their crane rental and service operation in violation of Brunswick

Hills Township zoning.

On May 6, 2009, at a public hearing, the Brunswick Hills Township Board of Zoning

Appeals was presented with evidence to determine whether the Ludroskys were illegally operating a

business from their property at 5035 Sleepy Hollow Road. The Board heard testimony from affected

property owners and neighbors, and reviewed exhibits presented by the parties. The hearing was

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continued to May 20, 2009. At the May 20Yh hearing, the Board deliberated on the record, and found

that the Ludroskys were illegally operating a business from their property at 5035 Sleepy Hollow

Road. The Board formally notified the Ludroskys of their decision in letter dated July 15, 2009.

Per the Board's instructions, the Brunswick Hills Township Zoning Inspector issued a

citation to the Ludroskys stating that "All/any operation of the business by using the premises as

primary and incidental storage of cranes and any other construction equipment used for business

must cease and desist immediately or legal action will be initiated to terminate your operation."

Pursuant to R.C. Section 2506.01, on August 10, 2009, the Ludroskys filed a Notice of

Appeal in Medina County Common Pleas Case Number 09-CIV-1539 challenging the decision of

the Brunswick Hills Township Board of Zoning Appeals that the Ludroskys were operating a

business at 5035 Sleepy Hollow Road. However, the Ludroskys failed to file a praecipe requesting

the Board to prepare the record and transcript of the proceedings as required by Section 2506.02 of

the Ohio Revised Code. As a result, on the Township's Motion, the Medina County Court of

Common Pleas dismissed the Ludroskys' Appeal.

Despite the Board's finding that the Ludroskys were impermissibly utilizing the site as the

sole storage facility for Mrs. Ludrosky's crane rental and service operation contrary to the

Township's Rural Residential zoning provisions, and despite the Common Pleas Court's disniissal of

their appeal, the Ludroskys continued to utilize the Property for the storage of their cranes in the

Rural Residential District. As a result, Appellee Brunswick Hills Township Board of Trustees (the

"Township") filed a complaint for preliminary and permanent injunction in the Medina County Court

of Common Please to enjoin the Ludroskys from continuing to use their property in violation of the

Board's order and the Brunswick Hills Township Zoning Resolution

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The parties agreed to submit the case to the court on stipulated facts, evidence and documents

as a basis of support in the parties proposed findings of fact, conclusions of law, and supporting

briefs. On March 3, 2011, the trial court ruled in favor of the Township, specifically holding:

[T]hat Brunswick Hills Township has established by clear and convincing evidencethat the Ludroskys' use of their land is in violation of the Township ZoningResolution and therefore it is entitled to have this Court enjoin the violation.

Thereafter, the Ludroskys appealed the trial court's ruling to the court of appeals. In a split-

decision, the appellate court determined that the trial court erred in finding that the Ludroskys' use of

their property constituted a business and that the trial court abused its discretion in granting a

permanent injunction.

IV. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Appellant's Proposition of Law: The appellate court impermissiblysubstituted its judgment for that of the local authority and that of the

trial court.

1. Appellate Court's Standard of Review

In the Ninth Appellate District, the Court of Appeals reviews the granting of an injunction by

a trial court under an "abuse of discretion standard." Smead v. Graves (9`h Dist. 2008), 2008 Ohio

115 at *P8. This Court has stated that "an abuse of discretion connotes more than an error of law or

judgment; it implies an attitude on the part of the trial judge that is unreasonable, arbitrary or

unconscionable." Planned Parenthood Ass'n. v. Proj. Jericho (1990), 52 Ohio St.3d 56 at *62; See

also Smead at *P8, quoting Blakemore v. Blakemore (1983), 5 Ohio St.3d 217 at 219 ("The term

`abuse of discretion' connotes more than an error of law or judgment; it implies that the court's

attitude is unreasonable, arbitrary or unconscionable").

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Further, "[t]he grant or denial of an injunction is solely within the trial court's discretion and

therefore, a reviewing court should not disturb the judgment of the trial court absent a showing of a

clear abuse of discretion." Corrigan v. Illuminating Co. (2009), 122 Ohio St.3d 265, at **P33,

quoting Garono v. State (1988), 37 Ohio St.3d 171, 173, 524 N.E.2d 496; See also Fodor v. First

Nat'l. Supermarkets, Inc. (1992), 63 Ohio St.3d 489 at 495 ("[A] trial court has broad discretion to

grant injunctive relief, and it follows that such a judgment may not be reversed absent an abuse of

that discretion * * *"); See also, see also Perkins v. Quaker City (1956), 165 Ohio St. 120 at 125

("unless there is a plain abuse of discretion, reviewing courts will not disturb such judgments").

Importantly, this Court has emphasized that a reviewing court "must not substitute its

judgment for that of the trial court where there exists some competent and credible evidence

supporting the findings offact and conclusions of law rendered by the trial court." (Emphasis

added). Myers v. Garson (1993), 66 Ohio St.3d 610 at 616; See City Of Hubbard ex rel. Creed v.

Sauline (1996), 74 Ohio St. 3d 402 at 406. Moreover, the Ninth District Court itself has held that the

appellate court "will not substitute its judgmentfor that of the Board of Zoning Appeals where

there has been no palpable abuse of its power." Bridle v. Hudson Twp. (1989), 1989 Ohio App.

LExis 321, unreported.

2. Township's are Permitted to Regulate Land-Use through Zoning

It is undisputed that Ohio township's are statutorily permitted to regulate land use through the

use of zoning regulations. The power to enact zoning regulations is a legislative function delegated

to townships by the general assembly. Bd. of Twp. Trustees v. Ott (6Ih Dist. 1994), 1994 Ohio App.

LExiS 114, unreported, at * 8. Townships regulate land in the unincorporated territories by virtue of

R.C. Section 519.02. Revised Code 519.02 provides in pertinent part:

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In the interest of the public health and safety, the board of township trustees mayregulate by resolution, in accordance with a comprehensive plan * * * the uses of

land for trade, industry, residence, recreation, or other purposes in theunincorporated territory of the township. * * * For all these purposes, the board maydivide all or any part of the unincorporated territory of the township into districts orzones of such number, shape, and area as the board determines * * *

Plainly, Ohio law permits unincorporated townships to regulate the use land for business and

residential purposes.

3. Arguwnent

In the instant matter, it is clear that the appellate court impermissibly substituted its judgment

for that of the Township zoning authority when it reversed the trial court's decision that the

Ludroskys were operating a business from their residential property. The record before that court

plainly showed that the Brunswick Hills Township Board of Zoning Appeals held extensive

evidentiary hearings lasting several evenings at which time the Board reviewed the Township Zoning

Inspector's records submitted as the basis of her opinion.

The Board also heard the testimony of nine witnesses presented by the Ludrosky's Attomey,

as well as the testimony of the Ludrosky's themselves. In addition, the Board was presented with

evidence, including the testimony of Brunswick Hills Township residents who testified as to why the

Ludroskys were illegally operating a business within the Township. During these administrative

hearings Township residents stated opposition to the Ludrosky's use of the property. Specifically,

neighbors testified that they had safety concerns involved with the cranes backing into the

Ludrosky's driveway and with the effect the cranes would have on road traffic, that they had issues

with the noise generated by these cranes, and that the business generates a tremendous amount of

dust and dirt and fumes that are disruptive to their neighbor's lifestyle. In short, the Board of Zoning

6

Appeals conducted a hearing at which competent credible evidence was presented to support its

decision that the Ludroskys were illegally operating a business in Brunswick Hills Township.

Importantly, the Board of Zoning Appeals interpreted their own zoning code when they made their

decision. (Emphasis added). Moreover, the Ludroskys were given the opportunity at the

administrative level to present evidence in support of their claims -- they were represented by legal

counsel, and the Board heard all of the evidence presented prior to making its decision. All of this

information was provided to the trial court and was part of the appellate court record. In

determining that the activity conducted on Ludroskys residential property did not amount to a

business, the court clearly substituted its judgment for that of the Board of Zoning Appeals where

there was no palpable abuse of that Board's power. This is clearly in violation of that Court's own

precedent set for in Bridle vs. Hudson Twp., supra.

It is also clear that the appellate court impermissibly substituted its judgment for that of the

trial court. The record before the Court of Appeals shows that the Medina County Court of Common

Pleas was presented with the administrative court record containing verbatim transcripts of

administrative level hearings, and evidence that was presented to the Board of Zoning Appeals. The

Court was presented with evidence that there were safety concerns involved with the Ludroskys

cranes; specifically, the neighbor's were concerned with about the Ludrosky's backing 20 and 30 ton

cranes off of their residential road and into their driveway and with the effect they would have on

road traffic. Evidence showed that there were issues with the noise and fumes generated'by these

cranes that permeated the surrounding residential areas. Moreover, evidence before the trial court

showed that until one week before their administrative hearing before the Board of Zoning Appeals,

the Ludrosky's home address was listed as its business address in various business and telephone

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directories throughout Medina County.

This evidence before the trial court also included the transcript from the May 6r' and May 20'

Board of Zoning Appeals hearing, as well as transcripts from numerous past administrative hearings

involving the Ludroskys and their attempt to legitimize their illegal crane operation. The court was

presented with evidence of, and acknowledged in their own findings of fact that in addition to storing

a 20 ton and 30 ton crane, the Ludroskys had contact with customers, stored equipment, conducted

customer billing, and maintained equipment -- all from their residential property, and only a few

yards away from distressed neighbors. Clearly, based on the record before the trial court, there

existed competent and credible evidence which supported the trial court's fmding that the Ludroskys

were operating a business from their residential property in violation of the Brunswick Hills

Township Zoning Resolution. Moreover, based upon the preceding, it cannot be said that that trial

court abused its discretion in making such a determination. Thus, the appellate court substituted its

judgment for that of the trial court when it determined that the Ludroskys were operating not

operating a business from their residential property.

Further, the cases cited as support in the appellate court's decision are inapplicable in this

matter. Those cases were predicated upon specific fact pattems upon which their respective courts of

appeal based their decision. The Court cites Wooten v. Neave Township B.Z.A. (2"d Dist. 2002),150

Ohio App.3d 56 in support of its decision that the Ludroskys are not operating a business. In Wooten

the court determined that parking two dump trucks in a residential property that were used to haul

stone from a single supplier coupled with occasional routine maintenance on those trucks and

bookkeeping did not amount to a home occupation. The court also cites Miller v. Frye (5th Dist.

1992), Stark App. No. CA-8862 in support of its decision that the Ludroskys are not operating a

8

business on their residential property. In Miller, the 5`h District Court of Appeals determined that the

parking of a semi tractor-trailer coupled with telephone calls from home and the listing of home

address as the business address on tax returns did not constitute a home business. Finally, the court

cites Kiracofe v. Kethcam (3`d Dist. 2005), 2005 Ohio 5271, for the proposition that "the mere

parking of a commercial vehicle on residential property without conducting any activity of the

business on that property, does not amount to a home business." Individually, the decisions in these

cases are based on separate, unique and disparate activity. However, in the case at bar, the

Ludroskys conducted all of the aforementioned activities and more. As the trial court in this matter

found, cumulatively, the Ludroskys parked their 20 ton and 30 ton diesel cranes at their residence;

used the property as a maintenance yard for those cranes; had contact with customers at their

residence; stored equipment and business documents and did bookkeeping on site. In essence, the

Ludroskys did everything except hang a flashing neon sign in front of their home stating "Crane

Rental Service."

Moreover, pursuant to Ohio Revised Code Section 519.02, townships in Ohio have the

exclusive authority to regulate land use in the unincorporated areas of the county. Here the appellate

court acted legislatively, in effect, defining for the Township what a business entails, rather than

applying the facts of this matter to the Brunswick Hills Township Zoning Resolution. R.C. 519.02

ensures that townships have the right to define and categorize what constitutes a business in their

jurisdiction. By determining that the Ludroskys are not operating a business, the appellate court is in

effect stating that the storage of 20 ton and 30 ton cranes (and all of the ancillary business activity

that goes with it) is a normal proper ancillary use of residential property, on residential lots of any

size. This position is, of course, untenable. The appellate court's finding is illogical, and destroys the

9

viability of what is clearly is clearly intended as a zoning district restricted to traditional residential

uses.

Despite the fact that both the Board of Zoning Appeals and the trial court considered

competent and credible evidence in arriving at their decision, the court of appeals determined that the

trial court abused its discretion, reversed the court, and determined that the Ludroskys were not

operating a business from their residential property. In doing so, they substituted theirjudgment for

the trial court and for that of the Board of Zoning Appeals where there has been no palpable abuse of

power in derogation of this Court's legal precedence. Should this Court decide not to take

jurisdiction over this matter, local zoning authorities throughout the Ninth District will be severely

hampered in carrying out their statutory duty to promulgate land use regulations in the interest of the

public health, safety, convenience, comfort, prosperity and general welfare of local communities.

Ostensibly, should the Ninth District's ruling stand, property owners in residential districts would

have cart blanche to park as many commercial vehicles as they may fit on their residential properties

-- in essence, these individuals could operate veritable construction yards a matter of feet away from

neighboring homes. Worse yet, based upon the appellate court's ruling, it would be virtually

impossible for a township's zoning authority to determine what constitutes a business operated from

a residential property -- a right granted to townships by virtue of Ohio Revised Code Section 519.02.

CONCLUSION

In the instant matter, the appellate court substituted their judgment as to what is a business in

a residential zoning district in Brunswick Hills Township, for that of the trial court and of the

Township zoning authority in contravention of Myers, City ofHudson, and Bridle. For this reason,

and the supporting facts and conclusions discussed in this memorandum, the Appellant Township's

10

issue involves a matter of public and great general interest. The Appellant respectfully requests that

the Supreme Court accept jurisdiction in regards to the Township's proposition of law.

Respectfully submitted,

David J. Foll.

COUNSEL FOR APPELLANT BRUNSWICKHILLS TOWNSHIP BOARD OF TRUSTEES

Certificate of Service

I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary U.S.mail to counsel for Appellee, Joseph R. Spoonster, Fortney & Klingshirn, 4040 Embassy Parkway,

Suite 280, Akron, Ohio 44333 on ToLy 2(a , 2012.

Respectfully submitted,

David J. Folk'

COUNSEL FOR APPELLANT BRUNSWICKHILLS TOWNSHIP BOARD OF TRUSTEES

11

c^!T1T ffiF APPEALSSTATE OF OHIO ) IN THE COURT OF APPEALS

COUNTY OF MEDINA

)sf2 JUN I 1 AM 11' COINTH JUDICIAL DISTRICT

1' ;l EOBRUNSWICK HILLS TOWNSIOW^d01tyA COUTYTe A. No. 11CA0026-MBOARD OF TRUSTEES gLE,p; or CO TS

Appellee/Cross-AppellantAPPEAL FROM JUDGMENT

V. ENTERED IN THECOURT OF COMMON PLEAS

THOMAS LUDROSKY, et al. COUNTY OF MEDINA, OHIOCASE No. 10CIV0032

Appellants/Cross-Appellees

DECISION AND JOURNAL ENTRY

Dated: June 11, 2012

MOORE, Presiding Judge.

{1[1} Appellants, Thomas and Kimberly Ludrosky, appeal from the judgment of the

Medina County Court of Common Pleas. Appellees, Brunswick Hills Township Board of

Trustees, cross-appeal. This Court reverses.

I.

{1f2} Appellants, Thomas and Kimberly Ludrosky (collectively the "Ludroskys") own

and reside on property in Brunswick Hills Township in Medina County, Ohio. The property is

subject to the zoning resolutions of Brunswick Hills Township. Ms. Ludrosky owns

Timberwolf, Inc., which provides crane services to individuals and contractors. The Ludroskys

own two cranes for use in the business. When they are not in use, the cranes are stored in a pole

barn on the Ludroskys' property.

{¶3} Edwin and Linda Sholtis (collectively the "Sholtises") live next to the Ludroskys.

In July 2008, the Sholtises contacted the Brunswick Hills Township Zoning Inspector alleging

MEDINA COUNTY COURT OF COMMON PLEAS•STATE OFOHIO, MEDINA COUNTY S.S. I hereby certify that this is a truecopy of the odgihal on file in said coun> Witssmy hand and thesealpf said codrt at Mediha, Ohio this ar1 day of

k f C rtad h GlB ou sswort , er oW^RayiB^P u Deputy

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2

that the Ludroskys were conducting a business from their home in violation of the township's

zoning resolution. On February 4, 2009, the inspector issued a determination letter finding that

the Ludroskys were not conducting a business from their home. The Sholtises appealed to the

Brunswick Hills Township Board of Zoning Appeals (the "BZA"). Following a public hearing, a

decision was issued on July 15, 2009, declaring that an illegal business operation was being run

from the Ludroskys' property. The decision instructed the zoning inspector to take all necessary

and appropriate action to terminate the business operation. On August 10, 2009, pursuant to

R.C. 2506.01, the Ludroskys filed a notice of appeal in the Medina County Court of Common

Pleas challenging the decision of the BZA. However, the Ludroskys failed to file a praecipe

requesting that the BZA prepare the record and transcript of the proceedings as required by R.C.

2506.02. As a result, the Medina County Court of Common Pleas dismissed the Ludroskys'

appeal.

{¶4} On January 7, 2010, Appellee Brunswick Hills Township Board of Trustees (the

"Board") filed a complaint for preliminary and permanent injunctive relief to restrain the

Ludroskys from continuing to use their property in violation of the zoning resolution. After

several hearings, the parties agreed to submit the case to the court on stipulated facts, evidence

and documents in support of each party's proposed findings of fact and conclusions of law. On

March 3, 2011, the trial court entered an order granting the permanent injunction and ordering

the Ludroskys to "cease to store, park, or place any cranes or other construction equipment" on

their property.

{15} The Ludroskys timely filed a notice of appeal. They raise two assignments of

error for our review. The Board timely filed a notice of cross-appeal, and raises one assignment

of error for our review. We will address the cross-appeal first to facilitate our review.

covv

3

II.

CROSS-APPEAL ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOTRULING ON WHETHER THE LUDROSKYS WERE PRECLUDED FROMRELITIGATING THE ISSUE OF WHETHER STORING CRANES ON THEIRRESIDENTIAL PROPERTY WAS AN IMPERMISSIBLE BUSINESSACTIVITY.

{¶6} As a preliminary note, we will address the Board's assignment of error on cross-

appeal. The Board contends that khe trial court erred by not ruling on its argument that the

Ludroskys were precluded from relitigating the issue of whether storing cranes on their property

was an impermissible business activity. We disagree.

{¶7} The Board acknowledges that "[t]he grant or denial of an injunction is solely

within the trial court's discretion and, therefore, a reviewing court should not disturb the

judgment of the trial court absent a showing of a clear abuse of discretion." Garona v. State, 37

Ohio St.3d 171, 173 (1988). See also Peroz v. Nagel, 9th Dist. No. 22047, 2004-Ohio-5179, ¶

12). However, because the applicability of res judicata is a question of law, we utilize a de novo

standard of review. Ohio Patrolmen's Benevolent Assn. v. Munroe Falls, 9th Dist. No. 23898,

2008-Ohio-659, ¶ 13, citing Payne v. Cartee, 111 Ohio App.3d 580, 586-87 (4th Dist.1996).

{1[8} This Court has stated that "[t]he doctrine of res judicata provides that `[a] valid,

final judgment rendered upon the merits bars all subsequent actions based upon any claim arising

out of the transaction or occurrence that was the subject matter of the previous action."' Perrine

v. Patterson, 9th Dist. No. 22993, 2006-Ohio-2559, ¶ 22, quoting Grava v. Parkrnan Twp., 73

Ohio St.3d 379 (1995), syllabus. Rcs judicata applies to adm'snisYative actions, where a party

has failed to properly appeal the administrative ruling under R.C. 2506.01. Green v. Akron, 9th

Dist. Nos. 18284, 18294, 1997 WL 625484 (Oct. 1, 1997). Here, Ludrosky attempted to appeal

4

to the court of common pleas pursuant to R.C. 2506.01, but it was dismissed for failing to file a

praecipe requesting that the BZA prepare the record and transcript of the proceedings as required

by R.C. 2506.02. The doctrine of res judicata also applies to situations where the BZA files a

complaint for injunctive relief due to alleged failures to comply with zoning ordinances. See

Prairie Twp. Bd. of Trustees v. Ross, 10th Dist. No. 03AP-509, 2004-Ohio-838, ¶ 14 (barring the

appellant from raising issues that should have been raised in an appeal from the BZA's decision

pursuant to R.C. 2506). Thus, the doctrine of res judicata may be argued in the present case.

{19} The doctrine of res judicata includes the concepts of issue preclusion (collateral

estoppel) and claim preclusion. Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations

Bd., 81 Ohio St.3d 392, 395 (1998). The concept of issue preclusion has been described as

follows:

[A] fact or a point that was actually and directly at issue in a previous action, andwas passed upon and determined by a court of competent jurisdiction, may not bedrawn into question in a subsequent action between the same parties or theirprivies, whether the cause of action in the two actions be identical or different.

Fort Frye, 81 Ohio St.3d at 395. See also Rehoreg v. Stoneco, Inc., 9th Dist. No. 04CA008481,

2005-Ohio-12, ¶ 10.

{¶10} There are two types of issue preclusion. Offensive use of issue preclusion "occurs

when the plaintiff seeks to foreclose the defendant from litigating an issue [that] the defendant

has previously litigated unsuccessfully in an action with another party." Parklane Hosiery Co.,

Inc. v. Shore, 439 U.S. 322, 326 (1979), fn. 4. Defensive use of collateral estoppel occurs when

a defendant seeks to prevent a plaintiff from asserting a claim that the plaintiff has previously

litigated unsuccessfully in another action. Id. Here, the Board is attempting to use the doctrine

offensively.

5

{¶11} The burden of pleading and proving the identity of issues rests on the party

asserting the issue preclusion. Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193,

198 (1983), citing Hernandez v. Los Angeles, 624 F.2d 935 (9th Cir.1980). Also, issue

preclusion can only be applied against parties who have had a prior "full and fair" opportunity to

litigate their claims. Goodson, 2 Ohio St.3d at 198 quoting C.A. Hardy v. Johns-Manville Sales

Corp., 681 F.2d 334, 338 (5th Cir.1982).

{¶12} The Board contends that the trial court should have been precluded from deciding

the issue of whether the storage of the cranes on their property was an impermissible business

activity because it was already litigated before the BZA. Although the doctrine of res judicata

may be raised in this context, the question here is whether this fact "was actually and directly at

issue in [the] previous ac6on" and whether Ludrosky was afforded "full and fair" opportunity to

litigate the claims. Fort Frye, 81 Ohio St.3d at 395; Goodson, 2 Ohio St.3d at 198.

1¶13} In the previous action, the BZA framed the issue before it as whether an illegal

business was being run from the Ludroskys' property. The evidence presented at the hearing

included the use of the residence address as the address for the business, business calls conducted

on the property, the storage of business documents on the property, and the maintenance and

storage of the cranes on the property. The BZA determined that an illegal business operation

was being run from the property, and ordered the inspector to cite the Ludroskys and take all

necessary and appropriate action to temrinate the operation of such business. Conversely, the

issue framed by the Board in this action is whether storage of the cranes alone constitutes an

impermissible business activity. In addition, the trial court's decision orders the Ludroskys to

cease to store, park, or place any cranes or other construction equipment on their property,

regardless of whether the use is related to business or personal activities. We conclude that this

6

action for injunctive relief reaches beyond the scope of the issues previously litigated, and thus,

issue preclusion does not apply. Accordingly, the trial court did not err in failing to accept the

Board's position on issue preclusion.

{¶14} The Board's assignment of error on cross-appeal is overruled.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ISSUINGAN INJUNCTION AGAINST THE LUDROSKYS.

{115} In their first assignment of error, the Ludroskys argue that the trial court erred and

abused its discretion by issuing an injunction against them. We agree.

{¶16J R.C. 519.24 authorizes a township board of trustees to seek an injunction

enjoining a landowner from violating the township's zoning resolution. To prevail, the Board

must show, by clear and convincing evidence, that the defendant is using his or her property in

violation of a zoning ordinance. Azar v. Baughman, 9th Dist. No. 8686, 1978 WL 215229 (June

21, 1978). Once a violation is established, "[t]he decision to grant or deny an injunction is solely

within the discretion of the trial court," and will not be reversed absent an abuse of discretion.

Bd, of Trustees of Columbia Twp. v. Albertson, 9th Dist. No. 01CA007785, 2001 WL 1240135,

*4 (Oct. 17, 2001), citing Danis Clarkco Landfill Co. v. Clark Cty. Waste Mgt. Dist., 73 Ohio

St.3d 590 (1995), paragraph three of the syllabus.

{1[17} The Brunswick Hills Township Zoning Resolution defines a "home occupaGon"

as "[a]n accessory use conducted for intended financial gain within a dwelling where such use is

clearly incidental and secondary to the use of the dwelling for residential purposes." The zoning

resolution divides home occupations into two classes. "Class I Home Occupation[s]" are

permitted uses under the resolution. A home occupation is considered "Class I" so long as:

COPY

7

1. It is conducted entirely within the residence dwelling; however, this does notinclude the garage;

2. The usage does not occupy more than twenty percent (20%) of the living floor area;3. The home occupation does not require the visitation or solicitation of clients,

continuous or frequent motor freight delivery of materials or removal of products,outdoor advertising, or display of products or services produced on the premises; and

4. No activity associated with the home occupation is to be visible from any publicright-of-way or adjacent property[.]

A "Class II Home Occupation" is defined as "any home occupation which does not conform to

the requirements for a "Class I Home Occupation." "Class II Home Occupation[s]" are

conditionally pemiitted uses for which the BZA may issue conditional zoning certificates.

However, the "proposed use shall not constitute primary or incidental storage of facilities for a

business, industrial, or agricultural activity conducted elsewhere." It is undisputed that the

Ludroskys were never granted a Class II Home Occupation certificate.

{¶18} First, we must determine whether the Ludroskys' use constitutes a home

occupation, specifically, whether there was "[a]n accessory use conducted for intended financial

gain within a dwelling" which then requires classification. The trial court's findings of fact

acknowledge that the Ludroskys run a service which provides cranes to building contractors.

The cranes are driven to the building sites by Mr. Ludrosky, and each night are returned to a

garage on the Ludroskys' property. The trial court concluded that "[t]here is no doubt that the

Ludroskys are numing a business and there is no doubt that there is not another address for the

business." The court further noted that the Ludroskys "are running a business out of their home,

a business which involves contact with customers, billing, maintaining equipment, and storing

equipment. Clearly their activity is far more than just parking cranes overnight " We are

nundful that the trial court had the opportunity "to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the credibility

8

of the proffered testimony." Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).

Nonetheless, we conclude that the trial court misapplied the facts to the law.

{119} In Wooten v. Neave Twp. Bd of Zoning Appeals, 150 Ohio App.3d 56, 2002-

Ohio-5992 (2d Dist.), a zoning board detennined that Wooten, who housed two dump trucks in a

barn he built on his property, had a home occupation. Wooten operated a sole proprietorship.

Each day, he drove his truck to a location to haul gravel and stone to various customers. At the

end of the day, he drove his truck back to his bam and parked it. The court acknowledged that

Wooten did not contact customers from his home, and no customers visited there. He did not

advertise, nor did he haul materials to his home for resale. He did do bookkeeping for the

business at home, and occasionally performed routine maintenance. He even hired a second

employee, who drove to his home each morning, and followed him to haul gravel and stone to

customers as well. The employee returned the truck to Wooten's home each evening. The

Second District affirmed the decision of the trial court and held that "the trucks were merely used

to conunute to work, much as one would use an employer-owned vehicle for commuting

purposes." Id at ¶ 16. The court found "nothing about this activity that would lead to the

conclusion that a`home occupation' was involved." Id.

{1[20} In Miller v. Frye, 5th Dist. No. CA-8862, 1992 WL 238505 (Aug. 31, 1992), a

zoning inspector sought to permanently enjoin Frye from parking his semi tractor-trailer on his

premises located in a residentially zoned area. Frye owned the truck and used it to deliver loads

for a trucking company. His tax returns indicated that he had a sole proprietorship. Typically,

Frye would call into the trucking company each afcenmoon to see if it had a job for him the

following day. If so, he would drive his truck from his home to pick up a load, and then deliver

it to another location prior to returning home and parking his truck at the end of the day. The

COPY

9

court noted that he did not have a business phone at his residence, nor did he advertise from

there. The trial court "found as a matter of law that the parking of [Frye's] income-producing

vehicle on his residential property was not equivalent to using his premises for business

purposes." Id at *2. On appeal, the inspector argued that Frye's tax filings indicated that he

operated a sole proprietorship located at his home address. The Fifth District stated that "such

evidence is not conclusive in demonstrating that [Frye] was using his residential premises for

business purposes. * * * Instead, the evidence demonstrates that [he] was an owner of a semi

tractor-trailer and used the same to earn a living. The mere fact that [Frye] parked this income-

producing truck on his residential property during non-income producing hours does not, without

more, establish that [he] was operating a trucking business from his home." Id at *2-3. The

court further held that Frye's tax deducfions for the use of the truck in his business, and the fact

that he named his home address as the business address, did not establish that he was in violation

of the zoning ordinance.

{¶21} In the case at hand, the trial court focused on the fact that the Ludroskys' use of

the property included "contact with customers, billing, maintaining equipment, and storing

equipment." Based on prior precedent, "the mere parking of a commercial vehicle on residential

property, without conducting any activity of the business on that property, does not amount to a

business practice." Kiracofe v. Ketcham, 3d Dist. No. 1-05-19, 2005-Ohio-5271, ¶ 18, citing

Wooten at ¶ 12-16. Furthermore, in Wooten, the performance of bookkeeping for the business at

home, and the occasional routine maintenance did not amount to a home occupation. Likewise,

the phone calls with the trucking company in Frye, and the fact that the residence was listed as

the business address, was not equivalent to using the residence for business purposes. The Board

stresses that this situation is factually distinct from those cases, particularly in light of the

10

cumulative effect of the storage of the cranes, the occasional calls conducted on the property, the

storage of business documents, and the occasional use of the residence as a business address.

However, in Wooten, even the fact that a second employee was hired and arrived at the residence

every day to assist with the hauling did not amount to business activity. In Frye, the defendant

made routine phone calls to inquire about trucking jobs, rather than occasional calls to

customers. He also listed the residence as the business address for tax purposes, whereas the

Ludroskys have utilized a post office box the majority of the time. Accordingly, we conclude

that the Ludroskys' use of the property to store the cranes, and occasional phone calls and

bookkeeping, does not amount to "[a]n accessory use conducted for intended fmancial gain

within a dwelling."

{122} We conclude that the trial court en•ed in finding that the Ludroskys' use of the

property constituted a home occupation, and, thus, abused its discretion in granting the

permanent injunction. Accordingly, the Ludroskys' first assignment of error is sustained.

ASSIGNMENT OF ERROR H

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ISSUINGAN OVERLY BROAD INJUNCTION PROHIBITING PERMITTEDACTIVITIES.

{923} In their second assignment of error, the Ludroskys argue that the trial court erred

by issuing an overly broad injunction prohibiting permitted activities. However, in light of our

disposition of their first assignment of error, we decline to address this second assignment of

error as it is rendered moot. See App.R. I2(A)(I)(c).

COGY

II

Ill.

{124} The Ludroskys' first assignment of error is sustained. We decline to address their

second assignment of error, as it is rendered moot. The Board's assignment of error on cross-

appeal is overruled. The judgment of the Medina County Court of Common Pleas is reversed.

Judgmentreversed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appeilee/Cross-Appellants.

CARLA MOOREFOR THE COURT

BELFANCE, J.CONCURS.

12

CARR, J.DISSENTING.

I respectfully dissent because I agree with the trial court's conclusion, based on its

findings of fact, that the Ludroskys were operating a business from their home. Therefore, I

would fiuther address the Ludroskys' second assigiunent of error but overrule it because I would

conclude that the injunction was not overly broad. Based on this resolution of the Ludroskys'

appeal, I would decline to address the Board's cross-appeal as it has been rendered moot. See

App.R. 12(A)(1)(c). Accordingly, I would affirm the trial court's judgment.

APPEARANCES:

JOSEPH R. SPOONSTER, III, Attorney at Law, for Appellants/Cross-Appellees.

DEAN HOLMAN, Prosecuting Attorney, and DAVID J. FOLK, Assistant Prosecuting Attomey,for Appellee/Cross-Appellant.

COMMON PLEAS COURT

1 I MAR -3 PM 2: 48IN THE COURT OF COMMON PLEAS FILED

MEDINA COUNTY, OHIO oAVio B wAOSwoRTNMEDINA COUNTY

CLERK OF COURTS

Brunswick Hills TownshipBoard of Trustees

Plaintiff

vs.

Thomas Ludrosky, et al.

Defendants

CASE NO. 10CIV0032

JUDGE JAMES L. KIMBLER

Judgment Entry

Case History

Brunswick Hills Township Board of Trustees filed an action for a preliminary and permanent injunction

preventing Mr. and Mrs. Ludrosky from storing crane equipment on their property in the township. The Court

heard evidence on the action for a preliminary injunction. Pursuant to Civ. R. 65 (B) (2) the hearing on the

preliminary injunction was combined with a hearing on the merits. Therefore this entry deals with the Board's

request for both a preliminary and permanent injunction.

In memorandums submitted by the Board the argument is made that the Ludroskys are violating several

sections of the Board's Zoning Resolution. The Court would note, however, that the Board's complaint only

deals with whether or not the Ludroskys are operating a home occupation in violation of the Board's Resolution.

The Board has not filed a motion for leave to amend the complaint.

Therefore, this Court finds that it is only deciding whether the Ludroskys are violating the provisions of

the Board's Zoning Resolution that deal with home occupations. For reasons stated below, this Court finds that

they are in violation of such provisions and hereby grants both a preliminary and permanent injunction.

Findings of Fact

The Uadrosky s run a service which provides cranes to btilding contractors. The cranes are used at

various building sites in Medina and surrounding counties. The cranes are driven to the sites by Mr. Ludrosky,

but each night they are returned to the Ludroskys' residence in Brunswick Hills Township. The cranes are

stored in a building on the property when they are not being used.

Th>: Ludroskys live in an area of the Township that is zoned "Rural Residential District" The permitted

uses for sitch a district are lisied in Sec. 402-2 of the Township Zoning Resolution. Those permitted uses are as

follows:MEDINA COUNTY COURTOF COMMON PLEAS-STATE OFOHIO, MEDINA COUNTY S.S. I hereby certify that this is a trueeapy ot the origindl on file in said court. Witness my hand and theseal yt said court at Medina, Ohio thisday of

r" " °°' ^Davids Wadsworth Clerk f Co tour sgY 49440,8

,Deputy

"1. Single family dwelling.2. Roadside stands.3. Accessory uses provided such uses are incidental to the principal use and do not include any activity

conducted as a business. Such uses must be situated on the same lot with the principal building.

4. Signs-As regulated by Article V hereof.5. Parking-As regulated by Article VI hereof.6. Adult Family Homes.7. Class I Home Occupation.8. Conservation Developments subject to the provisions of Section 411. "

Section 303-8 defines "Home Occupations" and divides them into two classes. One class is defined as a

"Class I Home Occupation" and the other is defined as a"Class II Home Occupation." Class I Home

Occupations are permitted uses in all zoning districts in the township. Class II Home Occupations are

conditionally permitted uses in a Rural Residential District. The Ludroskys have not been conditionally

permitted to conduct a Class II Home Occupation at their residence, therefore, if the Ludroskys are conducting a

Hoine Occupation, it would have to fit the definition of a Class I Home Occupation.

The term "Home Occupation" is defined in the Brunswick Hills Township Zoning Resolution as

follows:

"An accessory use conducted for intended financial gain within a dwelling where such use is clearlyincidental and secondary to the use of the dwelling for residential purposes. Such use shall not changethe character or appearance of the dwelling and shall not distract from the intended residential nature ofthe property or surrounding area. Home Occupations shall be conducted by the occupant of the dwellingand/or immediate family members with no additional employees or volunteers. No article or serviceshall be offered for sale or barter except those produced for the purpose of a home occupation. Clinics,hospitals, barber shops, beauty parlors, dress shops, automobile repair shops, woodworking shops,welding shops, tearooms, restaurants, tourist homes, and animal hospitals are hereby excluded from the

definition of "Home Occupation."

In order for a home occupation to be a Class I Home Occupation, it must meet the following

requirements set forth in Section 303-8 A:

1. It is conducted entirely within the residential dwelling, however, this does not include the garage;2. The usage does not occupy more than twenty percent (20%) of the living floor area;3. The home occupation does not require the visitation or solicitation of clients, continuous or frequent

motor freight delivery of materials or removal of products, outdoor advertising, or display of products or

services produced on the premises; and4. No activity associated with the home occupation is be visible from a€:y public right-of way or

adjacent property. "Conclusions of Law

(1). Zoning resolutions are in derogation of the common law and deprive a property owner of certain

uses of his land to which he would otherwise be lawfully entitled.

2

(2). Zoning resolutions are ordinarily construed in favor of the property owner. In re University Circle

Inc . (1978), 56 Ohio St. 2d 180, 184; Pepper Pike v.. Landskroner (1977), 53 Ohio App. 2d 63, 76; 3

Anderson American Law of Zoning (2d Ed.) 4, Section 16.02.

(3). Restrictions on the use of real property by ordinance, resolution or statute must be strictly

construed, and the scope of the restrictions cannot be extended to include limitations not clearly prescribed.

Davis v.. Miller (1955), 163 Ohio St. 91, 95; State, ex ret lce & Fuel Co., v.. Kreuzweiser (1929), 120 Ohio St.

352; State, ex rel. Moore Oil, v.. Dauben (1919), 99 Ohio St. 406, paragraph one of the syllabus.

(4). In interpreting the words of a statute or regulations, the words used will be given the meaning

commonly attributed to them, unless a contrary intention appears in the statute or regulation." Frashure v.

I`light (Dec. 5, 1990), 9th Dist. No. 14650, 1990 Ohio App. LEXIS 5331, citing Pinnacle Woods Survival

Game,7nc. v. Hambden Twp. Zoning Inspector(1986), 33 Ohio App.3d 139, 140, 514 N.E.2d 906.

(5). R.C. 519.24 authorizes a township board of trustees to seek an injunction enjoining a landowner

from violating the township's zoning resotution.

(6). The burden of proof is on a township board of trustees in an action brought under Civ. R. 65 to

enjoin a violation of a township zoning resolution. Petti v. Richmond Heights (1983), 5 Ohio St.3d 129, 132, fn.

1, 449 N.E.2d 768.

(7). A township seeking an injunction to enjoin a zoning violation must prove its entitlement to an

injunction by clear and convincing evidence. Spencer Twp. Bd of Tr.s. v. Dad's Auto Parts, LLC, 2010 Ohio

2253, P21 (Ohio Ct. App., Lucas County May 21, 2010)

(8). Clear and convincing evidence is defined as: "that measure or degree of proof which is more than a

mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable

doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to

the facts sought to be established." Cross v. Ledford (1954), 161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d 118,

paragraph three of the syllabus. In re K H., 119 Ohio St. 3d 538, 547 (Ohio 2008)

(9). Because a township board of trustees has to prove that it is entitled to an injunction by clear and

convincing evidence, the burden is on the township to show that a landowner's use of the landowner's property

doesn't fall under an exemption to the zoning resolution.

(10). R.C. 519.24 creates a cause of action against a landowner who uses the landowner's land iri

violation of a township's zoning resolution. Ghindia v. Buckeye Land Development, LLC, 11th Dist. No. 2006-

T-0084, 2007 Ohio 779, P 19, citing Moskoff v. Bd. of Trustees of Deerfield Twp. (Dec. 16, 1994), 11 th Dist. No.

93-P-0103, 1994 Ohio App. LEXIS 5712, 5, citing Barbeck v. Twinsburg Twp. (1990), 69 Ohio App.3d 837,

840, 591 N.E.2d 1318.

3

(11). Under R.C. 519.24 a county prosecuting attorney may file an action to enjoin a landowner from

violating a township zoning resolution. Baker v. Blevins, 162 Ohio App.3d 258, 2005 Ohio 3664, P12, 833

N.E.2d 327.

(12). "Because the remedy is statutory, the petitioner need only show that a violation of the ordinance is

occurring and is 'not required to plead or prove no irreparable injury or that there is no adequate remedy at law,

as is required by Civ.R. 65."' Id., quoting Baker, quoting Union Twp. Bd. of Trustees v. Old 74 Corp. (2000),

137 Ohio App.3d 289, 294, 738 N.E.2d 477. "Rather, the petitioner must prove, by clear and convincing

evidence, that the property is being used in violation of the zoning ordinance. "IdPecchio v. Saum, 2010 Ohio

5930, P18 (Ohio Ct. App., Trumbull County Dec. 3, 2010)

Holding

The Court holds that Brunswick Hills Township has established by clear and convincing evidence that

the Ludroskys' use of their land is in violation of the Township Zoning Resolution and therefore it is entitled to

have this Court enjoin the violation.

Discussion

The first issue that has to be determined is whether the activity of the Ludroskys in running their crane

business out of their home is a"home occupation" as that term is used in the Brunswick Hills Township Zoning

Resolution. In making this determination this Court is giving the words used to describe a "home occupation"

their ordinary meaning since there is no indication that a special meaning is to be given to words used in the

Zoning Resolution.

In order to engage in a "home occupation" the Township has to show that the Ludroskys are engaging in

activity for financial gain that is secondary to the use of their home for a residence. The Township has clearly

met this burden. There is no doubt that the Ludroskys are running a business and there is no doubt that there is

not another address for the business. There is also no doubt that the storage of the cranes is an essential part of

that activity. Without a place to store the cranes when they are not in use, the cranes would not be able to be

used by the Ludroskys and they would not have a business to operate.

During the hearings on this matter, counsel for the Ludroskys have rhetorically asked the question

"Would a driver of a truck used in his employer's business be violating the Township Zoning Resolution by

parking his or her truck overnight at the driver's residence?"

In response to that question, this Court would note that the fact situation described above is not the fact

situation facing this Court in this particular case. So whether or not the parking of such a truck would violate the

Township's Zoning Resolution does not have to be answered by this Court in this case.

4

Beyond that, however, the Court would also note that the Ludroskys are running a business out of their

home, a business which involves contact with customers, billing, maintaining equipment, and storing

equipment. Clearly their activity in their home is far more than just parking cranes overnight.

Since this Court finds that the Ludroskys are operating a "home occupation" at their residence, the next

question becomes whether the "home occupation" fits the description of a Class I Home Occupation. If the use

is a Class I Home Occupation, then such use would be permitted in the Ludroskys' residence since such use is

permitted in all Zoning Districts in the Township.

Unfortunately for the Ludroskys, this Court finds that their use of the residence to run their business

does not fit the definition of a Class I Home Occupation. This is because the storage of the cranes, which this

Court has found is an essential part of the business, is not done inside the Ludroskys' residence. Since the

business is not run entirely within the Ludroskys' residence, the activity does not fall under Section 303-8 A 1.

Further, it also does not fall under Section 303-8 A 4 because the activity of storing the cranes and

moving the cranes from the residence to places where the crane is to be used is observable from adjacent

properties and from the street.

Since this Court has found that the Ludroskys are violating the Brunswick Hills Township Zoning

Resolution, the Township is entitled to have this Court enjoin the violation. It is not necessary for the Township

to show that there is no adequate remedy at law or that such an injunction is necessary to stop irreparable harm.

Therefore, this Court issues the following order:

Order

Orror before March 15, 2011 the Ludroskys shall cease to store, park, or place any cranes or other

construction equipment on their property located at 5035 Sleepy Hollow Road, Brunswick Hills Township,

Medina County, Ohio.

Court costs are taxed to the Ludroskys.

SO ORDERED, ADJUDGED, and DECREED.

The Clerk is instructed to send notice of the foregoing entry to the following parties or their counsel ofrecord:

5

David J. FolkAssistant Prosecuting Attorney72 Public SquareMedina, OH 44256

John C. OberholtzerOberholtzer & Filous39 Public Square, Suite 201Medina, OH 44258-0220

Notice was sent by ordinary U.S. mail on

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6