COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72117 CITY OF WESTLAKE : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : EUSTAQUIO CABAL, et al. : OPINION : Defendants-Appellants : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 5, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court, Case No. CV-312303 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: Plaintiff-Appellee: Defendants-Appellants DAVID M. LYNCH REBECCA L. SIMPSON City Of Westlake Taft, Stettinius & Hollister 27216 Hilliard Boulevard Bond Court Building, Suite 600 Westlake, Ohio 44145 1300 East Ninth Street Cleveland, Ohio 44114 TIMOTHY J. GRENDELL Grendell & Targove 6060 Rockside Woods Blvd. Suite 250 Independence, Ohio 44131 -2- O'DONNELL, P.J.: Eustaquio and Deborah Cabal appeal from a judgment of the common pleas court, enjoining them from building a clay-surfaced tennis court in the backyard of two adjacent residential properties they own, located at 1912 and 1920 Holden's Arbor Run in the City of Westlake, ordering them to remove the existing tennis court surface and restore the lawn to its original condition, and dismissing their counterclaim against the City of Westlake. Since appellants failed to appeal from previous decisions rendered by the city and the board of zoning appeals regarding construction of their tennis court, the trial court did not abuse its discretion when it issued the injunction, and we affirm the judgment. The record reveals that appellants own two adjacent properties zoned for residential use known as 1912 and 1920 Holden's Arbor Run, in Westlake, Ohio. On October 1, 1991, they applied to the board of zoning appeals for a variance to install a 60' x 120' asphalt tennis court which would extend across the back yards of both properties. The board denied the variance, and appellants did not appeal from that denial. Nearly two years later, on September 13, 1993, they applied to the city for a permit to construct a 30' x 60' clay tennis court, but the city denied the permit and appellants likewise did not appeal from that denial. However, on October 21, 1993, they then petitioned the city council to adopt a new ordinance and to amend the zoning code to permit the construction of tennis courts in residential districts as accessory -3- uses. The city council declined to enact this ordinance and, on August 19, 1994, appellants filed another application with the board of zoning appeals to construct a 60' x 120' soft lee fast dry tennis court. The board returned the application to them, finding it identical to the one previously denied, and appellants did not appeal from that decision. The record reveals next that on July 24, 1996, city inspectors observed a tennis court under construction on appellants' property and, as a result, the city filed a complaint in common pleas court seeking a temporary restraining order and permanent injunction to enjoin further construction of the tennis court. Appellants filed a counterclaim seeking declaratory relief and monetary damages, alleging the city's actions constituted an unconstitutional taking of their property, and violated 42 U.S.C. S 1983 as well as the Fifth and Fourteenth amendments to the United States Constitution. The court tried the matter upon the parties' stipulation of the facts, and enjoined appellants from constructing their tennis court on the Holden's Arbor Run properties. They now appeal raising three assignments of error for our review which state: I. THE TRIAL COURT ERRED IN DETERMINING THAT APPELLANTS' PROPOSED TENNIS COURT VIOLATES SECTION 1211.09 OF APPELLEE'S ZONING CODE. II. THE TRIAL COURT ERRED IN FAILING TO DETERMINE THAT APPELLEE'S ACTIONS CONSTITUTE A TAKING OF APPELLANTS' PROPERTY WITHOUT JUST COMPENSATION IN VIOLATION OF THE UNITED STATES AND OHIO CONSTITUTIONS. -4- III. THE TRIAL COURT ERRED IN FAILING TO DETERMINE THAT APPELLEE'S ACTIONS CONSTITUTE A VIOLATION OF APPELLANTS' RIGHTS UNDER THE EQUAL PROTECTION CLAUSES OF THE UNITED STATES AND OHIO CONSTITUTIONS. Appellants contend the court erred when it enjoined them from building their tennis court, arguing that tennis courts are not regulated by the zoning code as accessory uses, and that the city's action precluding construction of their tennis court violated the United States and Ohio Constitutions. The city urges the trial court did not err in issuing the injunction because the zoning code regulates recreational accessory uses including tennis courts, and appellee's actions did not violate any constitutional provisions. The issue then presented for our review is whether the court erred when it enjoined appellants from building a tennis court in their back yard. We begin by addressing the relevant standard of review as delineated in Danis Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist. (1995), 73 Ohio St.3d 590, where the court stated in relevant part at 604: The issue whether to grant or deny an injunction is a matter solely within the discretion of the trial court and a reviewing court should not disturb the judgment of the trial court in the absence of a clear abuse of discretion. An abuse of discretion implies the court acted with an unreasonable, arbitrary or unconscionable attitude. See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. In applying that standard of review to this case, we are -5- compelled to review the procedural case history and to follow applicable precedent. In this regard, we recognize that a decision of an administrative agency -even if erroneous- becomes final on the merits of the case, if not appealed to the common pleas court. See Set Products, Inc. v. Bainbridge Twp. Bd. of Zoning Appeals (1987), 31 Ohio St.3d 260; Cleveland v. Sun Oil Co. (1989), 62 Ohio App.3d 732. In its per curiam opinion in Consumers' Counsel v. Pub. Util. Comm. (1985), 16 Ohio St.3d 9, the court stated in pertinent part at 10: In the interest of affording finality to the decisions of administrative bodies which are left unchallenged, we hereby determine that OCC lost its only opportunity to challenge the propriety of CEI's system loss costs compu- tation for the period prior to September 1, 1982, when it failed to appeal or to request a rehearing of the previous order * * *. This court has held that where a valid final judgment has been rendered on the same issue between the same parties, that judgment is res judicata as to subsequent actions even if it was erroneous. LaBarbera v. Batsch (1967), 10 Ohio St.2d 106 [39 O.O.2d 103], syllabus. In addition, the doctrine of res judicata provides that a final judgment is conclusive as to all claims litigated, or all claims which could have been litigated. See State, ex rel. White, v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45. Here, the parties do not dispute that appellants failed to appeal from the denial of the variance to install a tennis court in 1991; from the denial of the permit to construct a clay tennis court in 1993; or from the rejection of their application to construct a soft lee fast dry tennis court in 1994. Therefore, -6- those decisions became final on the merits of this issue, and we are constrained to follow them in accordance with Consumers' Counsel v. Pub. Util. Comm., supra, even if erroneous. Since the decision of the trial court is consistent with the earlier unappealed determinations of the city and the zoning board concerning installation of this tennis court, the trial court did not abuse its discretion in granting the injunction in this case, and that judgment is affirmed. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, J., and SWEENEY, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL -7- N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .