Because I conclude that the issues raised in appellant's first and second assignments of error are moot, I respectfully dissent from that portion of the majority opinion which addresses such issues.
Appellees contend appellant's first and second assignments of error are moot because appellant failed to seek a stay of the trial court's judgment(s) and that on November 9, 2000, ORDC adopted Resolution 00-16. Resolution 00-16 authorized ORDC, through its executive director, to execute all necessary documents in order to enter into an operating agreement with COR for the management of the Panhandle line. Such operating agreement was entered into on November 9, 2000.
Appellant contends its first and second assignments of error are not moot because: (1) the operating agreement has not been fully performed and is expressly conditioned upon this court upholding the trial court's judgment; (2) the operating agreement can be invalidated because it violates the trial court's permanent injunction granted in the April 28, 1998 judgment entry (which required ORDC award the operating agreement in accordance with the OMA); (3) the operating agreement can be invalidated based on the doctrine of lis pendens; and (4) the operating agreement can be invalidated because it violates the trial court's February 2000 stay order.
The majority concludes that appellant's first and second assignments of error are not moot because the 2000 operating agreement is grounded in the original RFP process and is an extension of the administrative process that was attacked in the complaint, the declaratory relief sought by appellant to be awarded the operating agreement is not foreclosed by the existence of the 2000 operating agreement as such is subject to the doctrine of lis pendens, and unjust results would follow as the issues complained of are capable of repetition yet evade review. For the reasons that follow, I respectfully disagree with the majority's conclusions and would find that all remaining issues have been rendered moot as a result of appellant's failure to seek a stay of the trial court's judgment(s), and ORDC's subsequent adoption of Resolution 00-16 and the resulting 2000 operating agreement.
First, the validity of Resolution 00-16 and the November 9, 2000 operating agreement are not contingent upon this court's decision. Resolution 00-16 does make reference to the trial court's decision. Indeed, such decision found against appellant on its RFP claims. Appellant never stayed this judgment, and the earlier Resolution 97-13 had been invalidated along with the original operating agreement as a result of the trial court's decision on appellant's OMA claims. Hence, ORDC was free to award a new operating agreement despite appellant's appeal. Such action by ORDC rendered this appeal moot. *Page 493
The majority states that the 2000 operating agreement is grounded in the original RFP process and is an extension of the administrative process that was the subject of the complaint. The fact that the 2000 operating agreement is related to the subject matter of the previous dealings between the parties and the litigation arising therefrom does not preclude application of the mootness doctrine. Indeed, if this were the test, there would be no mootness doctrine. Mootness arises when the subject matter of the litigation or dispute is somehow finally resolved, thereby precluding further action by a court. Hence, in all cases where mootness is implicated, the act which renders the case moot is, of course, related to the underlying case.
The majority opinion discusses appellant's claims regarding the allegedly faulty RFP process and appellant's claim that it should have been awarded the operating agreement. It then concludes that the mootness doctrine does not apply despite the subsequent voiding of the original operating agreement and the existence of the 2000 operating agreement because appellant sought such relief in its complaint. However, the mootness doctrine does not involve a determination of the merits of the issues that may be rendered moot. Rather, the doctrine merely involves a determination of whether the court is engaging in a vain act. As stated above, in adopting Resolution 00-16 and in entering into the 2000 operating agreement, and absent a stay being requested by appellant, ORDC proceeded lawfully. Hence, because an operating agreement has been properly entered into, the issues presented in appellant's first and second assignments of error are moot.
Further, I believe that this court's opinion in Pontiac Motor Div. v. Motor Vehicle Dealers Bd. (Sept. 15, 1987), Franklin App. No. 87AP-48, unreported, is directly on point. In Pontiac, we indicated that had the dealership obtained a stay of the common pleas court's dismissal of its protest, a decision by the court of appeals on the merits may well have dictated a different result. However, a stay was not obtained, and the manufacturer had expeditiously pursued a course of action permitted by the common pleas court's decision. We concluded that such course of action rendered the issues moot. See, also, Bd. of Commrs. v. Saunders (Nov. 2, 2001), Montgomery App. No. 18592, unreported.
In the case at bar, the situation is as follows. The trial court invalidated the original resolution (Resolution 97-13) and the related operating agreement based on the finding of violations of the OMA. Hence, no resolution authorizing an agreement and no operating agreement as to the Panhandle line existed. Further, on July 10, 1999, the trial court concluded that it lacked the authority to issue an injunction compelling ORDC to award the operating agreement to appellant. On September 14, 2000, the trial court concluded that *Page 494 there was no requirement that ORDC use competitive selection in leasing the line, that ORDC and the Selection Committee substantially complied with the RFP, and that ORDC and the Selection Committee acted reasonably and in good faith in scoring Phase I and Phase II responses. Appellant never requested nor obtained a stay of these final orders/judgments. In adopting Resolution 00-16 and in entering a new operating agreement with COR, ORDC pursued a course of action that was permitted given the above decisions/ judgments and the lack of a stay of such decisions/judgments.
A new operating agreement as to the Panhandle line is now in existence. This course of conduct has rendered the issues set forth in appellant's first and second assignments of error moot. Therefore, I would grant appellees' motion to dismiss the appeal.
The majority further concludes that even if the mootness doctrine is applicable herein, an exception exists in that the issues involved are capable of repetition yet evade review. The majority correctly sets forth the exception to the mootness doctrine as stated in State ex rel. Calvary v. Upper Arlington (2000), 89 Ohio St. 3d 229, 231:
* * * This exception applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. * * *
However, I disagree that such an exception is implicated in the case at bar.
The two factors simply are not present in the instant case. The majority states that in the case at bar it is possible that a series of illegal orders authorizing an operating agreement with COR could be put into effect, each replacing a prior order as the prior order reached final judicial review, thus perpetually mooting the case. There is absolutely no evidence of this in the case at bar. As stated by this court in James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App. 3d 788,792, there must be more than a theoretical possibility that the action will arise again. See, also, BECDIR Constr. Co. v. Proctor (June 26, 2001), Franklin App. No. 00AP-1429, unreported, discretionary appeal not allowed (2001), 93 Ohio St. 3d 1464.
The actions giving rise to the present lawsuit involved one RFP process for one operating agreement of a particular rail line. It did not involve all operating agreements that may arise in the future. If there are further operating agreements involving the Panhandle line, ORDC may do whatever it is lawfully entitled to do in order manage the line. Such actions are separate and *Page 495 apart from the present case. ORDC does not have, as the majority suggests, unbridled control over the RFP process (if it chooses to utilize such process). If a party to such future action wishes to litigate any matter arising out of such process, it may do so. If such party loses at the trial court level, it may request a stay, which most certainly would be granted. Thus, the scenario suggested by the majority simply could not occur.
Again, had appellant simply requested a stay, ORDC could not lawfully have adopted Resolution 00-16 and the 2000 operating agreement. Again, without a stay, ORDC did what it lawfully had every right to do. Thus, it was appellant's failure to even request a stay that is the linchpin in the case before us, not any veiled attempt by ORDC to moot the issues.
For all of the above reasons, I disagree with the majority that an exception to the mootness doctrine exists in the case at bar.
Appellant contends the 2000 operating agreement violates the trial court's injunction granted in April 1998. However, the April 1998 injunction compelling ORDC to comply with the OMA in awarding the operating agreement has no effect on the application of the mootness doctrine herein. As stated above, ORDC was within its rights and authority to pass Resolution 00-16. This, in effect, ended the case. If appellant believes it has an additional and separate OMA claim arising out of the adoption of Resolution 00-16, such claim was not the subject of the underlying case nor is it part of this appeal.
The majority also concludes that the doctrine of lis pendens applies to the instant case. I disagree. R.C. 2703.26 addresses the doctrine of lis pendens and states:
When summons has been served or publication made, the action is pending so as to charge third persons with notice of its pendency. While pending, no interest can be acquired by third persons in the subject of the action, as against the plaintiff's title.
As indicated above, the action is no longer pending due to appellant's failure to request and obtain a stay and ORDC's subsequent lawful actions. Hence, lis pendens is not implicated.7 The majority also states that the parties were on notice that any new agreement could be affected by the outcome on appeal. This assumes that the appeal is not moot. Again, had a stay been obtained, this court could address the merits of appellant's claims, and the result might have been different. However, such a stay was not obtained, and a new *Page 496 operating agreement was entered into, thus mooting the instant appeal. Because there is no case pending, the doctrine of lis pendens does not apply.
Appellant also asserts that the new operating agreement can be invalidated because it violates the trial court's February 4, 2000 order. On February 2, 2000, appellant filed a motion for a temporary restraining order and preliminary injunction seeking to enjoin the appellees from consummating any sale of the Panhandle line. COR had apparently offered to purchase ORDC's interest in the Panhandle line.
On February 4, 2000, the trial court journalized an entry prohibiting the sale of the Panhandle line or encumbrance of the right to manage the line without prior approval of the court. In so ruling, the trial court specifically stated that "a transfer of the Panhandle Rail Line prior to the conclusion of this lawsuit could adversely and irreparably harm the potential rights of the Plaintiff." (Feb. 4, 2000 Order at 2; emphasis added.) Despite the trial court's order, it expressly denied appellant's request for a preliminary injunction and temporary restraining order.
I find no merit in appellant's contention. The February 4, 2000 order was an interim order that did not survive post-final judgment. The order itself limits its application to transfers prior to the conclusion of the lawsuit. Appellant itself, in its memorandum in support of its motion for a temporary restraining order and preliminary injunction, argued that the status quo should be maintained until the action had been fully adjudicated. (See R. 306 at 1-2, 5.) This case has been fully adjudicated. The February 4, 2000 order lapsed upon the entering of final judgment on September 20, 2000, and upon appellant's failure to obtain a stay of such judgment. Thus, the February 4, 2000 order has no bearing upon what ORDC was permitted to do once final judgment was entered.
In summary, for all the reasons discussed above, I would grant appellees' motion to dismiss appellant's appeal with regard to appellant's first and second assignments of error. I concur in the majority opinion as to appellant's third assignment of error and the cross-appeals.
7 I also note that, it is at least debatable as to whether the doctrine of lis pendens applies in this case, as title to any real or personal property is not at issue herein. *Page 497