Rogers v. Logan Cty. Health Dist.

[Cite as Rogers v. Logan Cty. Health Dist., 2018-Ohio-893.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
JANICE ROGERS,
CASE NO. 8-17-16
APPELLANT,
v.
LOGAN COUNTY HEALTH DISTRICT, OPINION
APPELLEE.
Appeal from Logan County Common Pleas Court
Trial Court No. CV-16-11-0350
Judgment Affirmed
Date of Decision: March 12, 2018
APPEARANCES:
Janice Rogers, Appellant
Sarah J. Warren for Appellee
Case No. 8-17-16
WILLAMOWKSI, P.J.
{¶1} Plaintiff-appellant Janice Rogers (“Rogers”) appeals the judgment of
the Logan County Court of Common Pleas for affirming the decision of the Logan
County Health District (“LCHD”) to demolish a vacant trailer on her property. For
the reasons set forth below, the judgment of the lower court is affirmed.
Facts and Procedural History
{¶2} A vacant trailer stands on a piece of property that is owned by Rogers.
Doc. 44. In 2016, the Logan County Board of Trustees (“the trustees”) initiated a
process to condemn and demolish this trailer. Id. Rogers did not abate the nuisance
by October 5, 2016. Doc. 33. On October 5, 2016, the LCHD issued a citation to
Rogers. Doc. 44. On November 2, 2016, Rogers attended a meeting on this matter
held by the LCHD, though she arrived towards the conclusion of the hearing. Id.
After the hearing, the LCHD authorized the trustees to remove the structure. Doc.
1, 4, 33. On November 30, 2016, Rogers appealed the decision of the LCHD to the
Logan County Court of Common Pleas. Doc. 1.
{¶3} On January 24, 2017, Rogers requested a continuance to give her the
opportunity to retain counsel. Doc. 13. The lower court granted a continuance, but
Rogers did not obtain counsel and represented herself throughout this process. Doc.
17, 35. On April 3, 2017, the lower court scheduled the final hearing on this matter
for May 8, 2017. Doc. 29. The scheduling order required the parties to submit a
pre-hearing brief by May 1, 2017. Id. On May 4, 2017, Rogers filed several
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motions, including a motion requesting mediation. Doc. 34, 35, 36, 37. The lower
court denied all of these motions. Doc. 39.
{¶4} On May 7, 2017, Rogers informed the lower court that she would not
be able to appear for the hearing on May 8, 2017. Doc. 40. The lower court issued
a notice of intent to dismiss, which noted that Rogers had not yet submitted a pre-
hearing brief and rescheduled the hearing for May 22, 2017. Doc. 44. After the
hearing, the lower court affirmed the decision of the LCHD. Id. The appellant filed
her notice of appeal raises the following assignments of error:
First Assignment of Error
Judge is biased or prejudiced against this party from a previous
case. Judge must be fair and impartial.
Second Assignment of Error
Judge not competent.
Third Assignment of Error
Judge did not permit presentation of Logan County Board of
Health testimony.
Fourth Assignment of Error
Judge refused request of mediation.
Fifth Assignment of Error
Judge refused to rule on motion to dismiss.
Sixth Assignment of Error
Judge refused to answer questions regarding procedures.
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Seventh Assignment of Error
Entitled to legal counsel.
Eighth Assignment of Error
Not accorded due process of the law.
We will consider the assignments of error in the order in which they were presented
in the appellant’s brief.
First Assignment of Error
{¶5} In her first assignment of error, Rogers claims that the judge was biased
against her and should have been disqualified. Under Ohio law, “only the Chief
Justice or his designee may hear disqualification matters * * *.” Holloway v.
Holloway Sportswear, Inc., 3d Dist. Shelby Nos. 17-98-20, 17-2000-18, 2001 WL
633792, *4 (June 7, 2001). For this reason, appellate courts do not have jurisdiction
to vacate a lower court’s decision on the basis of judicial bias. Tretola v. Tretola,
3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 11. See R.C. 2701.03. Since we
do not have jurisdiction over this matter, Rogers’s first assignment of error is
overruled. Beer v. Griffith, 54 Ohio St. 2d 440, 441-442, 377 N.E.2d 775 (1978).
Second Assignment of Error
{¶6} In her second assignment of error, Rogers merely asserts that the judge
was incompetent because, in its judgment entry, the lower court stated that her trailer
was located in Richland Township instead of Washington Township. In law, the
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word “incompetent” has a specific meaning and suggests that a person has a “[l]ack
of legal ability.” Black’s Law Dictionary (10th Ed.2014). “Minor clerical errors *
* * are not significant and only rise to the level of harmless error.” In re Brady, 8th
Dist. Cuyahoga Nos. 84517 and 84743, 2005-Ohio-287, ¶ 9. The minor clerical
error identified by Rogers is harmless as this error in no way affected the outcome
of this case. Strayer v. Augsburger, 3d Dist. Allen No. 1-90-66, 1991 WL 1045343,
*2 (June 11, 1991). Further, this clerical error does not suggest, in any way, that the
judge was incompetent to adjudicate this case. For this reason, Rogers’s second
assignment of error is overruled.
Third Assignment of Error
{¶7} In her third assignment of error, Rogers asserts that the LCHD was
required to submit a transcript of the hearing of her case. In an appeal of a final
order issued by an agency or political subdivision, the
body from which the appeal is taken * * * shall prepare and file
in the court to which the appeal is taken, a complete transcript of
all the original papers, testimony, and evidence offered, heard,
and taken into consideration in issuing the final order * * *.
R.C. 2506.02. R.C. 2506.03(B) states, in its relevant part, that “the court shall hear
the appeal upon the transcript and additional evidence as may be introduced by any
party.” (Emphasis added.) R.C. 2506.03(B).
{¶8} The LCHD submitted the minutes of the hearing in which the merits of
Rogers’s case were heard. Doc. 33. Thus, the lower court heard this matter on the
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basis of the record that was preserved from the LCHD hearing. Under R.C.
2506.03(B), the LCHD had the option to introduce additional testimony before the
lower court but was not required to do so. For this reason, Rogers’s argument does
not have any merit. Thus, her third assignment of error is overruled.
Fourth Assignment of Error
{¶9} In her fourth assignment of error, Rogers argues that the lower court
erred by refusing her request for mediation. A “trial court has the inherent authority
to control its docket.” Dennis v. Morgan, 3d Dist. Marion No. 9-02-09, 2002-Ohio-
2198, ¶ 4. “[I]t is generally within the discretion of the trial judge to promote and
encourage settlements to prevent litigation.” Rulli v. Fan Co., 79 Ohio St. 3d 374,
376, 683 N.E.2d 337, 338 (1997). “Mediation is not a required step in the trial
process.” Bank of Am. v. Litteral, 191 Ohio App. 3d 303, 2010-Ohio-5884, 945
N.E.2d 1114, ¶ 20 (2d Dist.). Under Loc.R. 24.2(B), “a case may be ordered to
mediation at the discretion of the assigned judge.” Loc.R. 24.2(B) of the Court of
Common Pleas of Logan County, General Division. An abuse of discretion is not
merely an error in judgment; rather, to constitute an abuse of discretion, the trial
court’s decision must be unreasonable, arbitrary, or capricious. Schroeder v. Niese,
2016-Ohio-8397, 78 N.E.3d 339, ¶ 7 (3d Dist.).
{¶10} Pursuant to Loc.R. 22(C), the lower court issued a scheduling order on
April 3, 2017, that set the hearing for May 8, 2017. Doc. 29. On May 4, 2017—
four days before the hearing—Rogers filed a request for mediation. Doc. 36. The
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lower court denied this motion, finding the motion to be untimely. Doc. 39. We
find no indication that the lower court abused its discretion in denying a motion
requesting mediation that was submitted four days before the hearing. We also note
that Rogers does not cite any legal authority in support of her position. U.S. Bank
Nat. Assn. v. Morales, 11th Dist. Portage No. 2009-P-0012, 2009-Ohio-5635, ¶ 23.
Thus, her fourth assignment of error is overruled.
Fifth Assignment of Error
{¶11} In her fifth assignment of error, Rogers claims that the lower court
refused to rule on a motion to dismiss that she submitted to the lower court. After
a review of the record, we find that the lower court ruled on all of the motions that
Rogers submitted to the lower court. Doc. 4, 9, 13, 17, 23, 31, 34, 35, 36, 37, 39,
44. Thus, the lower court did not commit error by failing to rule on one of Rogers’s
motions. For this reason, her fifth assignment of error is overruled.
Sixth Assignment of Error
{¶12} In her sixth assignment of error, the appellant asserts that the judge
refused to answer her procedural questions. At a hearing, the judge informed her
that “we can’t give you legal advice.” Tr. 3. The context of this statement shows
that the judge was discussing her status as a pro se litigant. Tr. 3. “Pro se civil
litigants are bound by the same rules and procedures as those litigants who retain
counsel. They are not to be accorded greater rights and must accept the results of
their own mistakes and errors.” Meyers v. First Nat. Bank of Cincinnati, 3 Ohio
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App.3d 209, 210, 444 N.E.2d 412, 412 (1st Dist.1981). Further, a “trial court is an
impartial arbiter who cannot provide legal advice to parties.” Ransom v. Aldi, Inc.,
2017-Ohio-6993, --- N.E.3d ---, ¶ 39 (2d Dist.). The judge’s statement was
consistent with Ohio law. He was merely informing Rogers that he was not free, as
judge, to direct her case for her. In so acting, the judge did not commit error. Thus,
Rogers’s sixth assignment of error is overruled.
Seventh Assignment of Error
{¶13} In her seventh assignment of error, Rogers argues that she was entitled
to legal counsel. We find this argument to be unpersuasive for two reasons. First,
she was not entitled to appointed counsel in this action. “While the Fifth
Amendment to the United States Constitution, as applied to the states by the
Fourteenth Amendment, guarantees the right to be represented by counsel in
criminal proceedings, litigants have no generalized right to appointed counsel in
civil actions.” Graham v. City of Findlay Police Dept., 3d Dist. Hancock No. 5-01-
32, 2002 WL 418969, *2 (Mar. 19, 2002). Further, “a trial judge has no authority
to order a party to retain legal counsel.” Svoboda v. City of Brunswick, 6 Ohio St. 3d
348, 349, 453 N.E.2d 648, 650 (1983). In this action, Rogers was not at risk of
receiving a penalty that came with the potential for a loss of physical liberty through
actual imprisonment. Liming v. Damos, 133 Ohio St. 3d 509, 2012-Ohio-4783, 979
N.E.2d 297, ¶ 26-27. Thus, the lower court did not have a duty to appoint counsel
for Rogers.
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{¶14} Second, the lower court did not improperly deny her the opportunity
to retain counsel by choosing not to grant the third motion for a continuance that
she submitted to the lower court.
In evaluating a motion for a continuance, a court should note,
inter alia: the length of the delay requested; whether other
continuances have been requested and received; the
inconvenience to litigants, witnesses, opposing counsel and the
court; whether the requested delay is for legitimate reasons or
whether it is dilatory, purposeful, or contrived; whether the
defendant contributed to the circumstance which gives rise to the
request for a continuance; and other relevant factors, depending
on the unique facts of each case.
State v. Unger, 67 Ohio St. 2d 65, 67, 423 N.E.2d 1078 (1981).
{¶15} In this case, the lower court granted Rogers’s first motion for a
continuance, which was submitted on January 24, 2017. Doc. 13, 17. The lower
court then granted Roger’s second motion for a continuance, which stated that she
needed more time to obtain counsel. Doc. 21, 23. On May 4, 2017—four days
before the final hearing on this matter—Rogers submitted her third motion for a
continuance, requesting more time to obtain counsel. Doc. 35. The lower court
denied this motion. Doc. 39.
{¶16} At this point, the lower court had already granted two continuances to
Rogers. After both of these continuances, Rogers failed to retain counsel. After it
granted Rogers second continuance, the lower court informed Rogers that she would
have to proceed pro se if she did not retain counsel prior to the final hearing. Doc.
39. Rogers’s third continuance was submitted four days before the scheduled final
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hearing on this matter and three days after her pre-hearing brief was supposed to
have been filed. Finally, while the lower court denied Rogers’s third motion for a
continuance, it still moved the final hearing from May 8 to May 22 to give Rogers
additional time to file her pre-hearing brief even though the deadline for filing this
brief had passed. Doc. 40. Under these circumstances, we do not find that the lower
court abused its discretion in denying Rogers’s motion for a continuance. Nance v.
Nance, 4th Dist. Pike No. 95CA553, 1996 WL 104741, *4 (March 6, 1996). For
these reasons, Roger’s seventh assignment of error is overruled.
Eighth Assignment of Error
{¶17} In her eighth assignment of error, Rogers argues that she was denied
due process. “The Ohio Constitution, Section 16, Article I, undeniably affords the
parties in a civil case the right to due process of law.” Am. Gen. Finance v. Beemer,
73 Ohio App. 3d 684, 686, 598 N.E.2d 144, 145 (3d Dist.1991). “The fundamental
requisites of due process of law in any proceeding are notice and the opportunity to
be heard.” In re B.C., 141 Ohio St. 3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 17,
quoting Armstrong v. Manzo, 380 U.S. 545, 550, 85 S. Ct. 1187, 14 L. Ed. 2d 62
(1965).
R.C. 3707.01 charges boards of health of cities or general health
districts with the obligation of ‘abat[ing] and remov[ing] all
nuisances within its jurisdiction,’ granting such boards the
authority to ‘regulate the location, construction, and repair * * *
of yards, pens, and stables, and of water closets, privies, cesspools,
sinks, plumbing and drains.’
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Bishop v. Nelson Ledges Quarry Park, Ltd., 11th Dist. Portage No. 2004-P-0008,
2005-Ohio-2656, ¶ 38, quoting R.C. 3707.01. In this process, the “proper
procedures must be followed under R.C. 3707.02.” Summit Cty. Bd. of Health v.
Pearson, 9th Dist. Summit No. 22194, 2005-Ohio-2964, ¶ 14.
{¶18} The record shows that the LCHD complied with all of the notice and
hearing requirements in R.C. 3707.01. Doc. 33. Further, the appellant has not
demonstrated how her due process rights were violated. She appeared at the LCHD
hearing; had the opportunity to appeal the decision of the LCHD; and appeared at
three hearings before the lower court. The judge even allowed her the opportunity
to file her pre-hearing memorandum late. Tr. 4. Doc. 40, 42. After examining the
record, we do not find that the appellant’s due process rights were violated.
Therefore, Rogers’s eighth assignment of error is overruled.
Conclusion
{¶19} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Logan County Court of Common Pleas is
affirmed.
Judgment Affirmed
ZIMMERMAN and PRESTON, J.J., concur.
/hls
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