Mason v. Douglas

[Cite as Mason v. Douglas, 2012-Ohio-5501.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RONALD MASON, ET AL. : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiffs-Appellees : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
ANGELA DOUGLAS, ET AL. : Case No. 12CA000011
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Cambridge
Municipal Court, Case No. 07-CVG-
00201
JUDGMENT: Judgment Vacated and Remanded
DATE OF JUDGMENT: November 26, 2012
APPEARANCES:
For Plaintiffs-Appellees For Defendants-Appellees
E. MARIE SEIBER PATRICK W. SKILLITER
P.O. Box 108 422 Main Street
Dennison, OH 44621 Suite 400
P.O. Box 427
Zanesville, OH 43702-0427
Guernsey County, Case No. 12CA000011 2
Farmer, J
{¶1} Appellees, Ronald and JoAnn Mason, rented an apartment to appellee,
Angela Douglas. On March 20, 2007, appellees filed a forcible entry and detainer
action for past rent due and owing. Appellees also named Brandon Mickle in the action
who is not a party to this appeal. On April 19, and May 14, 2007, appellant filed an
answer and counterclaim alleging lead based poisoning of her minor child.
{¶2} A bench trial commenced on December 7, 2007. By docket and journal
entry filed March 8, 2012, the trial court found in favor of appellees as against appellant
in the amount of $4,260.00 on their complaint in favor of appellees on appellant's
counterclaim.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ERRED IN ENTERING JUDGMENT FOR THE
PLAINTIFFS-APPELLEES, BECAUSE THE MANIFEST WEIGHT OF THE EVIDENCE
AT TRIAL SHOWED THAT THE LANDLORDS HAD KNOWLEDGE AND NOTICE OF
THE LEAD-BASED HAZARDS IN THE RENTED HOME WHICH VIOLATED THE OHIO
LANDLORD-TENANT ACT AND THE PARTIES' LEASE AND WHICH CAUSED THE
LANDLORDS' ACTS AND OMISSIONS TO AMOUNT TO NEGLIGENCE PER SE."
II
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE
DEFENDANT-APPELLANT'S MOTION TO JOIN NECESSARY PARTIES, MOTION
Guernsey County, Case No. 12CA000011 3
FOR CONTINUANCE, AND MOTION FOR LEAVE TO FILE AN AMENDED ANSWER,
AFFIRMATIVE DEFENSES, AND COUNTERCLAIM INSTANTER."
II
{¶6} We will address this assignment of error first as we find it to be dispositive
of the appeal.
{¶7} Appellant claims the trial court erred in denying her motions to join
necessary parties (her minor child), for continuance, and for leave to file an amended
answer.
{¶8} Civ.R. 19.1 governs compulsory joinder. Subsection (A)(3) states the
following:
(A) A person who is subject to service of process shall be joined as
a party in the action, except as provided in subdivision (B) of this rule, if
the person has an interest in or a claim arising out of the following
situations:
(3) Personal injury or property damage to a minor and a claim of
the parent or guardian of the minor for loss of consortium or expenses or
property damage if caused by the same wrongful act.
{¶9} We note the action arose as a forcible entry and detainer action on March
20, 2007. On April 19, 2007, appellant filed a pro se answer on a form provided by the
trial court. By magistrate's decision filed April 30, 2007, a writ of restitution was granted
by stipulation with a specific notation that appellant was given until May 11, 2007 to file
Guernsey County, Case No. 12CA000011 4
an amended counterclaim. On May 14, 2007, appellant filed an answer and
counterclaim and was represented by Attorney Patrick W. Skilliter. Appellant alleged
breach of contract, a violation of the Landlord-Tenant Act, negligence per se, and
negligence, all based upon elevated levels of lead found in the blood of appellant's
minor child on December 15, 2006, February 15, 2007, and mid-April 2007.
{¶10} On April 26, 2007, appellant had requested an inspection of the rental
premises by the Department of Health relative to the levels of lead:
The conditions in this apartment are relevant to the Defendant's
Counterclaim and should be brought before the Court by agencies with the
expertise and ability to investigate appropriately. This inspection and
corresponding order to repair are warranted in this case to sort out the
pending financial matters as well as to protect future tenants and children
from potentially hazardous conditions.
{¶11} The trial court conducted a pretrial on June 7, 2007 and noted discovery
was not complete and set a discovery cut-off date for September 7, 2007 and a trial
date for December 7, 2007. On September 5, 2007, appellant filed a motion for
continuance and enlargement of time for three months citing the following reasons:
Defendant requests more time to hire professional evaluators,
complete discovery through deposition of those experts, and additional
time to prepare her case presentation. According to the latest discussions
Guernsey County, Case No. 12CA000011 5
with Plaintiffs' Attorney, neither party has had time to retain experts or
evaluate the premises and the child as needed. This information is crucial
to the discovery process and essential to the case itself.
Further, the initial inspection of the premises for lead paint by the
Ohio Department of Health was not conducted until August 2, 2007. The
results of that inspection are pending and it is likely that both parties will
require time to interview and/or depose the inspector, laboratory
technicians, and other doctors or sanitarians involved in this matter who
are not known at this time. Defense Counsel notified the Court at the
Pretrial on June 7, 2007, that he encountered significant difficulty when
requesting such an inspection and that the time frame discussed at Pre-
Trial was the best estimate. Unfortunately, it has become apparent that
more time is now required.
{¶12} On September 17, 2007, appellant requested a leave to amend her
answer and counterclaim and to add her minor child, D'Andre Fowler, as a co-defendant
and counterclaimant. By journal entry filed October 11, 2007, the trial court denied
appellant's September 5 and 17, 2007 motions.
{¶13} A review of the docket and transcripts disclose a trial was held on
December 7, 2007, but no journal entry or findings were filed until March 8, 2012.
There is no explanation in the record for the four year delay. Judicial expediency was
clearly not an issue.
Guernsey County, Case No. 12CA000011 6
{¶14} We find appellant's requests for a continuance and enlargement of time
and to amend her answer and counterclaim were timely given that the inspection
occurred only thirty-six days prior to the discovery cut-off date of September 7, 2007
and the parties were still awaiting the results. Under Civ.R. 19.1(A)(3), we find the trial
court erred in denying appellant's requests to add her minor child as a party-defendant.
{¶15} Assignment of Error II is granted. Assignment of Error I is rendered moot.
{¶16} The judgment of the Cambridge Municipal Court of Guernsey County,
Ohio is vacated.
By Farmer, J.
Delaney, P.J. and
Wise, J. concur.
s/ Sheila G. Farmer________________
s/ Patricia A. Delaney______________
s/ John W. Wise___________________
JUDGES
SGF/sg
[Cite as Mason v. Douglas, 2012-Ohio-5501.]
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RONALD MASON, ET AL. :
:
Plaintiffs-Appellees :
:
-vs- : JUDGMENT ENTRY
:
ANGELA DOUGLAS, ET AL. :
:
Defendants-Appellants : CASE NO. 12CA000011
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Cambridge Municipal Court of Guernsey County, Ohio is vacated. The
matter is remanded to said court for further proceedings consistent with this opinion.
Costs to appellees.
s/ Sheila G. Farmer________________
s/ Patricia A. Delaney______________
s/ John W. Wise___________________
JUDGES