Miller v. Flowers , 2021 Ohio 220 ( 2021 )

[Cite as Miller v. Flowers, 2021-Ohio-220.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Bonnie Miller et al., :
Plaintiffs-Appellants, :
No. 20AP-226
v. : (C.P.C. No. 18CV-2240)
Stephanie T. Flowers, M.D., : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on January 28, 2021
On brief: Butler, Cincione & DiCuccio, and N. Gerald
DiCuccio, for appellants. Argued: N. Gerald DiCuccio.
On brief: Katz, Pryor & DiCuccio, and Robert K. DiCuccio,
co-counsel for appellants.
On brief: Reminger Co., L.P.A., David H. Krause, and
Jackie M. Jewell, for appellee. Argued: Melvin J. Davis.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Plaintiffs-appellants, Bonnie Miller and Grant Miller, appeal from the
March 18, 2020, Final Judgment Entry issued by the Franklin County Court of Common
Pleas wherein the trial court found in favor of defendant-appellee, Stephanie T. Flowers,
M.D., following a jury trial and verdict for defendant on March 17, 2020, after the trial court
had denied appellants' emergency motion for a continuance of the trial. For the following
reasons, we affirm.
I. Facts and Procedural History
No. 20AP-226 2
{¶ 2} We begin by observing that appellants have failed to file a transcript of the
proceedings below; therefore, our recitation of the facts relevant to this appeal is limited to
those which may be ascertained from the remainder of the record.
{¶ 3} On March 14, 2018, appellants filed the instant case against appellee as a
refiling of a case originally filed on May 29, 2015. (Compl.; Apr. 18, 2018 Transfer Entry.)
On the same day as the complaint was filed, the Clerk of Courts issued a case schedule
assigning March 11, 2020 as the trial date. (Clerk's Original Case Schedule.)
{¶ 4} Subsequently, on February 21, 2020, appellants filed their first motion for
trial continuance. (Feb. 21, 2020 Mot. for Cont.) In this motion, appellants sought both a
continuance of the trial date and a reopening of discovery for 120 days. (Id. at 2.) In
support of their motion, appellants cited to counsel's schedule requiring their appearance
at a trial on March 3, 2020 in Delaware County and at a trial on March 23, 2020 in Franklin
County. Id.1
{¶ 5} On February 24, 2020, the trial court denied the first motion for continuance.
(Feb. 24, 2020 Journal Entry Denying Mot. to Cont. Trial Date.) In denying the motion, the
trial court noted that the lawsuit against appellee was a refiled case that had been pending
"for more than three years as two active cases." Id. at 1. The trial court further noted that
the trial assignment for the Delaware County case was not filed as an exhibit as stated in
the body of the motion and the court assumed that the Delaware County case was assigned
for trial after this case. Id. Additionally, the trial court observed that witness subpoenas
had already been issued; that appellee had presumably cleared her professional schedule;
and that defense counsel were prepared to proceed with trial as scheduled. Id. at 2.
{¶ 6} Thereafter, on March 10, 2020, appellants filed their Emergency Motion for
Continuance of Trial Date (Mar. 10, 2020 Emergency Mot. for Cont.) Although the record
is devoid of any written decision denying the motion, we may presume it was denied in the
face of the trial having commenced on March 11, 2020 as originally scheduled.2
1 The motion does not indicate why appellants sought a reopening of discovery.
2 We recognize that according to appellee, the trial court and the parties discussed the emergency motion
for continuance on the record. (Brief of Appellee at 4.) We further recognize that appellee asserts that the
trial court offered to permit appellants to participate in the trial via videoconference, but that appellants
declined this offer. Id. at 4-5. Although we have no reason whatsoever to doubt these assertions, without
a transcript of the proceedings this court has no way of confirming this information.
No. 20AP-226 3
{¶ 7} On March 17, 2020, the jury returned a unanimous verdict in favor of
appellee. (March 17, 2020 Jury Verdict.) On March 18, 2020, the trial court issued its Final
Judgment Entry wherein the trial court found in favor of appellee.
{¶ 8} This timely appeal followed.
II. Assignment of Error
{¶ 9} Appellants assign the following as their sole assignment of error for our
review:
The trial court erred to the prejudice of plaintiffs in denying
their emergency motion for continuance of trial date because
the trial court's failure to consider circumstances and
extraordinary risks presented to all individuals created by the
COVID-19 outbreak constitutes an abuse of discretion.
III. Discussion and Legal Analysis
{¶ 10} Before addressing appellants' assignment of error, we must address as a
preliminary matter the failure of appellants to file a transcript of the proceedings before the
trial court. It is the burden of appellants to take the steps required to have the transcript
prepared for inclusion in the record on appeal and to ensure that the record contains all
that is necessary for the reviewing court to determine the appeal. Rose Chevrolet, Inc. v.
Adams, 36 Ohio St.3d 17, 19 (1988). When a transcript of proceedings in the trial court is
necessary to exemplify the facts which determined the issues presented there, the absence
of a transcript requires a reviewing court to either dismiss the appeal or affirm the judgment
of the court from which the appeal is taken. State v. Render, 43 Ohio St.2d 17 (1975),
paragraph two of the syllabus.
{¶ 11} Notwithstanding the foregoing, a party may remedy its failure to file a
transcript by filing a statement of the evidence with this court pursuant to App.R. 9(C). In
this case, however, appellants made no attempt here to file an App.R. 9(C) statement.
Therefore, this court is without any transcript of the proceedings before the trial court. In
such absence, we may not review any assignments of error that rely upon factual issues in
dispute, and we must presume regularity of the proceedings under such circumstances.
Therefore, we may only address arguments in appellants' assignment of error that are based
on questions of law.
No. 20AP-226 4
{¶ 12} In appellants' singular assignment of error, they assert the trial court erred to
their prejudice in denying their request to continue the jury trial. Although a transcript
would be necessary to review what, if anything, the court may have stated regarding a
continuance of the matter, we will address the issue in general terms. The decision whether
to grant or deny a continuance lies within the sound discretion of the trial court. State v.
Unger, 67 Ohio St.2d 65, 67 (1981). Thus, a trial court's decision regarding a continuance
will only be reversed if the trial court abused its discretion. Fiocca v. Fiocca, 10th Dist. No.
04AP-962, 2005-Ohio-2199. An abuse of discretion is more than an error of law or
judgment; rather, it suggests an attitude that is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Importantly, in determining
whether a trial court has abused its discretion, this court may not substitute its judgment
for that of the trial court. Foley v. Foley, 10th Dist. No. 05AP-242, 2006-Ohio-946, ¶ 15.
{¶ 13} In Unger at 67-68, the Supreme Court of Ohio discussed the factors to
consider in granting or denying a motion for continuance:
[1] the length of the delay requested; [2] whether other
continuances have been requested and received; [3] the
inconvenience to litigants, witnesses, opposing counsel and the
court; [4] whether the requested delay is for legitimate reasons
or whether it is dilatory, purposeful, or contrived; [5] whether
the defendant contributed to the circumstance which gives rise
to the request for a continuance; and [6] other relevant factors,
depending on the unique facts of each case.
{¶ 14} In reviewing a trial court's decision on a motion for continuance, we " 'apply
a balancing test, thereby weighing the trial court's interest in controlling its own docket,
including the efficient dispensation of justice, versus the potential prejudice to the moving
party.' " Foley at ¶ 16, quoting Fiocca, citing Unger at 67. Due to the lack of a transcript,
we must presume the trial court considered all relevant factors in reaching its decision to
deny appellants' motion. We further apply this balancing test in our review of the trial
court's decision, and we address the factors discussed in Unger as follows.
{¶ 15} We note that the request did not specifically include a certain amount of time
but only asked for a "brief continuance." (Mar. 10, 2020 Emergency Mot. for Cont. at 3.)
Thus, it appears this factor weighs somewhat in favor of granting the continuance.
No. 20AP-226 5
{¶ 16} Next, we consider whether other continuances have been requested and
received. As discussed previously, appellants had previously sought a trial continuance
which the trial court denied for the specific reasons also previously discussed. Thus, this
factor weighs heavily against granting the continuance.
{¶ 17} Considering the third factor, given that the continuance request was not a
joint request, and that appellee and her counsel were prepared to go forward, it seems a
last-minute continuance would have inconvenienced appellee, counsel for appellee, the
witnesses who had already been issued subpoenas and the jurors, all of whom presumably
had rearranged their schedules to appear for trial. Thus, this factor also weighs heavily
against granting the continuance.
{¶ 18} Regarding the fourth factor, although the stated reason for the request for
continuance was due to the public health emergency based on COVID-19, the record makes
clear that this case was a refiling of a case originally filed in 2015; that appellants' previous
motion for continuance was unequivocally denied by the trial court; and that the emergency
motion for trial continuance was filed only one day before trial was scheduled. Thus, this
factor also weighs against granting the continuance.
{¶ 19} As for the fifth factor, obviously appellants were not responsible for causing
the public health emergency based on COVID-19. Nevertheless, this does not answer the
ultimate question as to whether the request for continuance should have been granted on
this basis.
{¶ 20} Under the sixth and final category, we are to consider other factors made
relevant due to the unique facts of this case. Here, appellants assert that given the March 9,
2020 Executive Order signed by Governor DeWine declaring a state of emergency in Ohio
due to COVID-19 ("Executive Order 2020-01D"), the underlying medical conditions and
age of appellant Bonnie Miller3, and that opposing counsel may have been exposed to the
coronavirus, a trial continuance was warranted "in order to better ensure the physical safety
of Mrs. Miller." (Mar. 10, 2020 Emergency Mot. for Cont. at 3.)
3According to appellants' emergency motion for trial continuance, "Mrs. Miller is a 71-year-old woman with
multiple myeloma and significant neurological issues." (Mar. 10, 2020 Emergency Mot. for Cont. at 2.)
No. 20AP-226 6
{¶ 21} The motion includes an attachment of an email exchange dated March 9-10,
2020, between counsel for the parties and the court's staff attorney. A review of this email
exchange indicates that the court was undertaking various safety precautions to prevent
transmission of the virus, including having masks and hand sanitizer available and having
surfaces wiped down with antibacterial cleaning products both nightly and during the day.
The email exchange also makes clear that although counsel for appellee had spent Sunday,
March 8, 2020 with his daughter and that one of her friends had recently been diagnosed
positive for the coronavirus, counsel's daughter had not seen her friend for approximately
one month. Despite appellants' assertion that counsel had "potential exposure to COVID-
19," it is difficult to see how counsel could have been exposed to the virus given the month-
long gap between his daughter having seen her friend and her friend testing positive.
Notably, there is no evidence in the record that anyone at the trial contracted the virus.
{¶ 22} Furthermore, although appellants argue they were prejudiced by the trial
court's denial of their motion, they fail to explain how. Appellants assert at page 16 of their
brief that "the jurors could not have felt safe during their deliberations" without citing to
any support for this contention, and at page 15 they point out that the jury returned its
verdict "in approximately 45 minutes." Presumably, we are meant to infer that the jury
didn't deliberate long enough because the jurors did not "feel safe," but there is absolutely
no evidence in the record that the jury failed to properly consider all the admitted evidence
or otherwise violated the oath each juror took. Nor is there any evidence in the record that
any of the jurors felt pressured to reach a quick verdict due to the public health situation.
Without the benefit of having a trial transcript to review it is impossible for this court to
review the evidence admitted at trial, yet it is entirely plausible that the evidence was simply
overwhelmingly in favor of appellee. In any event, we will not speculate as to the reason for
the length of time for jury deliberations. In the absence of a trial transcript there is simply
no evidence in the record of any prejudice resulting to appellants due to any jurors being
concerned for their safety.
{¶ 23} Finally, we find that the circumstances of the trial were entirely consistent
with the relevant official government orders that were in place at the time the trial court
considered and denied appellants' motion for trial continuance. First, nothing in Executive
Order 2020-01D required courts to continue jury trials. Second, the Franklin County Court
No. 20AP-226 7
of Common Pleas Order in Response to the COVID-19 (Coronavirus) Public Health
Emergency, of which we take judicial notice, was not issued until March 13, 2020–two days
after the trial in this matter commenced–and only required continuances of trials
beginning on March 16, 2020 or after, not trials that had already commenced.
{¶ 24} Under all the foregoing circumstances, we cannot find the trial court abused
its discretion when it did not continue the jury trial. Therefore, we must find the trial court
did not err when it denied appellants' motion to continue the trial, and appellants' sole
assignment of error is overruled.
IV. Disposition
{¶ 25} For the foregoing reasons, the trial court did not err in denying appellants'
emergency motion for trial continuance. Having overruled appellants' sole assignment of
error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and KLATT, JJ., concur.