Monus v. Day

[Cite as Monus v. Day, 2011-Ohio-6219.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

ROBERT MONUS, POLAND TOWNSHIP )
ZONING INSPECTOR, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 10 MA 70
VS. )
) OPINION
LEO C. DAY, ET AL., )
)
DEFENDANTS-APPELLANTS. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 07CV1985

JUDGMENT: Affirmed

APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Attorney Karen Markulin Gaglione
Attorney Dawn M. Durkin
Assistant Prosecutors
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellant Leo Day, pro-se
4301 Dobbins Road
Poland, Ohio 44514

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

Dated: December 2, 2011
[Cite as Monus v. Day, 2011-Ohio-6219.]
DONOFRIO, J.

{¶1} Defendant-appellant, Leo Day, Jr., appeals from a Mahoning County
Common Pleas Court judgment denying his Civ.R. 60(B) motion for relief from
judgment.
{¶2} Plaintiff-appellee, Robert Monus, is the Poland Township Zoning
Inspector.
{¶3} This court recently decided the companion case of Monus v. Day, 7th
Dist. No. 10-MA-35, 2011-Ohio-3170. Therein, we set out the facts:
{¶4} “Day owns real property located at 4301 Dobbins Road in Poland
Township. There is a long history of zoning-related litigation regarding this property.
In 1947, Day's grandfather, Ilie Day, started a truck hauling business on the property.
In 1949, Poland Township passed a zoning ordinance classifying the property as
agricultural for zoning purposes. This classification prohibited usage of the property
for the truck hauling business and related activities.
{¶5} “Thereafter, a dispute arose between Poland Township and Ilie Day's
widow, Bertha Day and her son, Leo Day, Sr., (Day's father), regarding usage of the
property. In 1978, Bertha Day and Leo Day, Sr. filed a declaratory judgment action in
the Mahoning County Court of Common Pleas, seeking a restraining order against
Poland Township (Case No. 78-CV-1876). The Days sought a determination of their
right to continue the truck hauling business as a [non]conforming use despite the
passage of Poland Township's zoning ordinance. At that time, the business had
grown to include the operation of five tractor-trailer trucks and two dump trucks.
{¶6} “The trial court granted the Days a permanent injunction for a truck
hauling business. In its order, the court stated, in pertinent part:
{¶7} “‘The evidence is clear to this Court * * * that although there have been
at times trucks stored upon the property and on other occasions some loaded trucks
were on the property, these were temporarily there and were connected to the
hauling business. The general character of the business has not changed.
{¶8} “‘It is, also, clear to this Court that although there has been an increase
in the traffic on and off the Day property, that this has resulted from an increase in the
 -2-

volume of business rather than an increase in the character and nature of the
business.
{¶9} “‘The Court finds from the evidence that the Plaintiffs [Days] have a
valid and existing nonconforming use of the property in question; that the character
and nature of the business of the Days has not changed; that there has been no
change in the property by way of expansion or by any other means which would
destroy the existing right.’ (1978 Injunction, Case No. 78-CV-1876.)
{¶10} “The trial court's decision to grant the permanent injunction was
affirmed by this court on appeal. Day v. Poland Twp. Trustees (Sept. 15, 1983), 7th
Dist. No. 82 C.A. 76.
{¶11} “In 1991, cement trucks and cement making supplies began to appear
on the property, which Poland Township viewed as an unlawful extension of the
nonconforming use of the property. Poland Township's zoning inspector issued a
minor misdemeanor citation to Leo Day, Sr., in Struthers Municipal Court, for violating
the zoning laws based on the alleged operation of a cement mixing business on the
property. Ultimately, the trial court found Day Sr. not guilty based upon his legal
argument that Poland Township's zoning laws at that time did not contain language
restricting the extension of pre-existing nonconforming uses as required by R.C.
519.19. However, the court opined ‘that the present use of the cement trucks on the
premises of plaintiff could be prohibited by the Township of Poland if their zoning
ordinance was crafted properly so as to prohibit such an extension of a
nonconforming use.’ Poland Township later amended its zoning laws, adding this
language indicated by R.C. 519.19.
{¶12} “* * *
{¶13} “On June 4, 2007, the Zoning Inspector commenced the instant suit in
the Mahoning County Court of Common Pleas for a preliminary and permanent
injunction against Day and his mother Bertha, pursuant to R.C. 519.24. The Zoning
Inspector sought to enjoin Day from using his property in violation of the Zoning
Resolution, which would include: ‘the removal of tires, batteries, construction debris
 -3-

and equipment, and other miscellaneous debris on the Property; that the vehicles
and trailers on the Property without current registrations either be updated, removed
or properly stored; and for such other relief the Plaintiff may be entitled to by law.’
Upon joint motion of the parties, the trial court ordered that the preliminary and
permanent injunction hearings be heard at the same time.
{¶14} “On September 5, 2007, Day filed, through counsel, an answer and
counterclaim for declaratory judgment and injunctive relief. Therein, Day challenged
the constitutionality of the Poland Township Zoning Resolution, and of the
Township's actions with regard to his property. He sought a declaration that the
items on his property are incidental to his pre-existing non-conforming [sic] use. He
also sought a permanent injunction preventing the Township from enforcing the
Zoning Resolution with respect to his property. However, Day failed to join Poland
Township as a party.
{¶15} “On November 21, 2007, Day filed a separate pro-se action in the
Mahoning County Court of Common Pleas: Leo C. Day, Jr. v. Poland Township,
Ohio, Case No. 07 CV 4404. Therein, Day sought, inter alia, (1) a declaration that
Poland Township violated the 1978 Injunction by commencing the criminal
proceedings in the Struthers Municipal Court; (2) an order that Poland Township
dismiss the criminal proceedings; and (3) an order that Poland Township take no
further actions pursuant to the Zoning Resolution to disrupt his use of the property.
{¶16} “Day's counsel in the Zoning Inspector's case filed a motion to withdraw
from representation on November 30, 2007, which was granted by the trial court on
December 5, 2007, and from then on Day proceeded pro-se.
{¶17} “Upon motion of the Zoning Inspector, Day's pro-se civil action was
consolidated into the present case as the Magistrate's Order concluded ‘there is
sufficient commonality of issues and that judicial economy will be served by
consolidation of the cases.’ Day did not file a motion to set aside this Order.
{¶18} “Day filed a motion to dismiss the Zoning Inspector's case, asserting
that the trial court lacked subject matter jurisdiction to proceed, which the magistrate
 -4-

denied. Day failed to file a motion to set aside this order. Instead, Day filed a petition
for writ of prohibition to prevent the trial court from taking further action in the
consolidated cases, because of a lack of subject matter jurisdiction, which the Ohio
Supreme Court denied. (Ohio Supreme Court Case No. 2008-1550.)
{¶19} “Once reinstituted in the trial court, there was a discovery dispute in the
consolidated cases. In response to a request for production of documents and a
subsequent motion to compel and supplemental motion to show cause by Poland
Township, Day filed a motion for protective order, which was opposed by the
Township. The trial court denied Day's motion for protective order and ordered an in
camera review.
{¶20} “With regard to the Zoning Inspector's case, a trial was held before the
magistrate. Prior to trial, upon motion of the Zoning Inspector, which was opposed by
Day, the magistrate viewed the premises. At the start of the hearing, Day moved to
dismiss the Zoning Inspector's complaint, which was denied. The Zoning Inspector
moved to dismiss Day's counterclaims because Poland Township had not been
named as a party. This motion was granted from the bench.
{¶21} “The Zoning Inspector testified extensively about the condition of the
property and numerous photographs were admitted. In sum, the Zoning Inspector
testified: ‘[The] [c]ondition today [of the property] is that there's still dismantled
vehicles, vehicles with no engines in place, there's no license on vehicles. The semi
truck trailers are now used as accessory storage trucks for some of the items that are
left out in the open. Some construction material and vehicle parts [are] spewed about
the property.’
{¶22} “Day then testified. He admitted that at that time there were
approximately 15 or 16 vehicles located on the property, along with cement drums
and metal barrels. He admitted there are two storage trailers on the property which
had been there for a long time. He admitted there were three tractors on the
property. He admitted there were two unlicensed and inoperable Mack trucks; and
one unregistered and inoperable Ford, all of which had been on the property for over
 -5-

ten years. He conceded that there were one ‘lowboy’ and one ‘tag-along,’ on the
property, neither of which had current plates. He testified that there was a rubber tire
loader, a Caterpillar loader, a Case excavator and a Donelli rubber tire excavator on
the property, that the Case excavator was never operational and that the Donelli had
not been used since the previous year. Day admitted there was a 1989 GMC van on
the property without current plates, which had not been off the property since 2004.
He admitted there was a 1976 Oldsmobile Cutlass on the property which was
unlicensed and had not been run for about 20 years. Finally, he admitted there were
some metal barrels with chemicals or concrete on the property that had not been
used since 2006.
{¶23} “In sum, Day did not dispute the factual assertions made by the Zoning
Inspector. Rather, Day put forth the legal argument that the 1978 Injunction prohibits
the Zoning Inspector from enforcing the Zoning Resolution. He further claimed that
the ‘items to which the Poland Township zoning inspector is attempting to enforce are
items incident to a pre-vested valid nonconforming use.’
{¶24} “After considering the evidence, the magistrate ruled in favor of the
Zoning Inspector in his case, and did not address Day's pro-se complaint. Day filed
timely objections, which were opposed by the Zoning Inspector.
{¶25} “The trial court issued a judgment entry overruling Day's objections and
issuing a permanent injunction in favor of the Zoning Inspector. The trial court found
that based on Day's uncontroverted testimony, he continued to store abandoned,
wrecked and dismantled automobiles, etc., in violation of Poland Township Zoning
Resolution Article 7, Section 7.21. The court further found that ‘[Day's]
nonconforming use concerning the truck business does not include the storing of
abandoned vehicles [etc.] nor does it excuse [Day] from complying with Poland
Township Zoning Resolution Article 7, Section 7.21.’ Finally, the court found by clear
and convincing evidence that Day was in violation of the Zoning Resolution and that
the Zoning Inspector was therefore entitled to an injunction.
 -6-

{¶26} “The trial court issued a permanent injunction enjoining Day from using
his property in violation of the Poland Township Zoning Resolution Article 7, Section
7.21, including ordering: ‘the removal of abandoned, wrecked, and dismantled
automobiles, trucks, tractors, trailers, operating equipment, and other miscellaneous
material, construction debris and equipment on the Property and that the vehicles
and trailers on the Property without current registrations either be updated, removed
or properly stored.’ The court gave Day 30 Days to clean up his property and bring it
into compliance with the Zoning Resolution. In addition, the trial court dismissed
Day's counterclaim for failure to name Poland Township as a party pursuant to R.C.
2721.12.
{¶27} “The trial court did not address Day's separate pro-se complaint for an
injunction which had been consolidated with the Zoning Inspector's case, and
included the Civ.R. 54(B) ‘no just cause for delay’ language.
{¶28} “Day first filed a Civ.R. 60(B) motion for relief from judgment and then a
timely notice of appeal. On a limited remand from this Court, the trial court overruled
Day's Civ.R. 60(B) motion.” Id. at ¶¶3-10, 15-30.
{¶29} Day now appeals the denial of his Civ.R. 60(B) motion. This court
affirmed the trial court’s decision issuing the permanent injunction and dismissing
Day’s counterclaim. Day, 7th Dist. No. 10-MA-35.
{¶30} Day, acting pro se, raises three assignments of error, the first of which
states:
{¶31} “WHETHER THE TRIAL COURT FAILED TO STATE WITH
PARTICULARITY THE CASE LAW AND STATUTORY LAW FOR WHICH IT BASED
ITS DECISION DENYING DEFENDANT’S MOTION FOR RELIEF FROM
JUDGMENT.”
{¶32} Day argues that the trial court erred by failing to set forth the facts, case
law, and statutes upon which it relied in its judgment entry denying his motion for
relief from judgment. He asserts that he has been prejudiced on appeal because he
does not know the basis of the trial court’s decision.
 -7-

{¶33} As the zoning inspector points out, there is no requirement in the Civil
Rules or in case law that requires a trial court, in ruling on a Civ.R. 60(B) motion, to
set forth the facts, case law, or statutes upon which it relied in reaching its decision.
{¶34} Pursuant to Civ.R. 52, a party may request findings of fact and
conclusions of law from the trial court:
{¶35} “When questions of fact are tried by the court without a jury, judgment
may be general for the prevailing party unless one of the parties in writing requests
otherwise before the entry of judgment pursuant to Civ.R. 58, or not later than seven
days after the party filing the request has been given notice of the court's
announcement of its decision, whichever is later, in which case, the court shall state
in writing the conclusions of fact found separately from the conclusions of law.
{¶36} “* * *
{¶37} “Findings of fact and conclusions of law required by this rule and by
Rule 41(B)(2) are unnecessary upon all other motions including those pursuant to
Rule 12, Rule 55 and Rule 56.”
{¶38} But Day never made this request with the trial court.
{¶39} Furthermore, even if Day had requested findings of fact and
conclusions of law, this court has held “it is established case law that findings and
conclusions are not required in ruling on 60(B) motions.” Buoscio v. Krichbaum (Mar.
24, 2000), 7th Dist. No. 99-CA-318. That is because the determination of such
motion does not depend on the court “trying” facts as that term is understood in the
ordinary sense of a trial without a jury. Id.
{¶40} Thus, it was not error for the court to deny Day’s Civ.R. 60(B) motion
without including findings of fact and conclusions of law. Accordingly, Day’s first
assignment of error is without merit.
{¶41} Day’s second assignment of error states:
{¶42} “WHETHER THE JUDGMENT ENTERED INTO [IN] THIS CASE IS
UNCONSCIONABLE SO THAT IT MUST BE SET ASIDE.”
 -8-

{¶43} Here Day argues that the trial court should have reached the same
conclusion as in Day v. Poland Twp. Trustees (Sept. 15, 1983), 7th Dist. No. 82 C.A.
76 (Day 1), where this court affirmed a permanent injunction enjoining Poland
Township from applying a zoning ordinance to the nonconforming use of Day’s
property. Day asserts that the trial court should have applied the doctrines of res
judicata and law of the case to determine that it could not reach a different conclusion
than that reached in Day 1.
{¶44} The doctrine of res judicata consists of two related concepts-claim
preclusion and issue preclusion. Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379,
381. Claim preclusion holds that a valid, final judgment rendered upon the merits
bars all subsequent actions based upon any claim arising out of the transaction or
occurrence that was the subject matter of the previous action. Ft. Frye Teachers
Assn., OEA/NEA v. State Emp. Relations Bd. (1998), 81 Ohio St.3d 392, 395. Issue
preclusion holds that a fact or a point that was actually and directly at issue in a
previous action, and was passed upon and determined by a court of competent
jurisdiction, may not be drawn into question in a subsequent action between the
same parties or their privies, whether the cause of action in the two actions be
identical or different. Id.
{¶45} In Day 1, Leo Day, Sr., and Bertha Day asked for a declaratory
judgment and sought a restraining order against Poland Township for a
determination of their rights to a nonconforming use of their property. The court
found that the Days’ predecessor established a trucking business on their property
before the enactment of a Poland zoning ordinance. Consequently, the trial court
enjoined Poland from applying the zoning ordinance to the Days’ nonconforming use
of using the property for a trucking business. On appeal, this court affirmed the trial
court’s judgment.
{¶46} In this case, however, the zoning inspector requested an injunction to
enjoin Day from storing on the property abandoned, wrecked, and dismantled
 -9-

automobiles, trucks, tractors, trailers, operating equipment, and construction debris in
violation of Article 7, Section 7.21 of the Poland Township Zoning Resolution.
{¶47} In Day 1, the transaction or occurrence that was the subject matter of
the claim was the ability of the Days to operate a trucking business as a prior non-
conforming use of the property. In this case, however, the transaction or occurrence
that is the subject matter of the claim is Day’s storage of abandoned, wrecked, and
dismantled vehicles and debris on the property. Thus, claim preclusion does not
apply.
{¶48} Likewise, issue preclusion does not apply. There is no fact or point that
was actually litigated in Day 1 that is being called into question in this case.
{¶49} Because neither claim nor issue preclusion applies here, the doctrine of
res judicata does not apply. Thus, we must move on to consider the law-of-the-case
doctrine.
{¶50} “Pursuant to the law-of-the-case doctrine, an inferior court must act in
accordance with the ruling of a reviewing court when conducting subsequent
proceedings on the same matter.” (Emphasis added.) Unick v. Pro-Cision, Inc., 7th
Dist. No. 09-MA-171, 2011-Ohio-1342, at ¶44, citing Nolan v. Nolan (1984), 11 Ohio
St.3d 1, 3. ““[T]he doctrine provides that the decision of a reviewing court in a case
remains the law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels.” (Emphasis added.)
Nolan, at 3.
{¶51} Here we are faced with a different case than Day 1. It arose out of
similar but different facts and circumstances. It is not merely a continuation of Day 1,
which would implicate the law-of-the-case doctrine. Consequently, this doctrine does
not apply.
{¶52} Accordingly, Day’s second assignment of error is without merit.
{¶53} Day’s third assignment of error states:
{¶54} “WHETHER THE TRIAL COURT LACKED SUBJECT MATTER
JURISDICTION OR AUTHORITY TO RENDER A DECISION.”
 - 10 -

{¶55} Day claims here that the trial court did not have subject matter
jurisdiction in this case because it disregarded the decision in Day 1. He asserts that
this was unlawful and rendered the trial court’s judgment void.
{¶56} This court gave an explanation of subject matter jurisdiction in Fifth
Third Bank, N.A. v. Maple Leaf Expansion, Inc., 188 Ohio App.3d 27, 32-33, 2010-
Ohio-1537, at ¶¶15-16:
{¶57} “Subject-matter jurisdiction is defined as a court's power to hear and
decide cases. * * * Subject-matter jurisdiction relates to the proper forum for an entire
class of cases, not the particular facts of an individual case. * * * In the civil context,
subject-matter jurisdiction is present if the action brought before a court alleges ‘any
cause of action cognizable by the forum.’ * * *
{¶58} “Though the term ‘jurisdiction’ is often used in reference to a court's
subject-matter jurisdiction, it is also used in reference to a court's jurisdiction over a
particular case. * * * ‘There is a distinction between a court that lacks subject-matter
jurisdiction over a case and a court that improperly exercises that subject-matter
jurisdiction once conferred upon it.’ * * * The term ‘jurisdiction’ is commonly used
when a court makes an unauthorized ruling in a case that is otherwise within that
court's subject-matter jurisdiction. * * * This latter use of ‘jurisdiction’ does not relate
to subject-matter jurisdiction and would not render a judgment void ab initio. If there
is any valid ground upon which a confession of judgment might be properly sought
and entered in Pennsylvania, even if ‘ “it would be highly erroneous, even
jurisdictionally wrong in the sense of inexcusable use of judicial authority” ‘ as applied
in this case, then the Pennsylvania court's decision might be voidable as erroneous,
but it would not be void for lack of subject-matter jurisdiction. * * *.” (Internal citations
omitted.)
{¶59} The trial court has subject matter jurisdiction over the issuance of
injunctions. R.C. 2727.03 provides common pleas courts with jurisdiction to issue
injunctions in that county.
 - 11 -

{¶60} Day argues that the trial court did not have jurisdiction in this case
because it disregarded the law as set out in Day 1. This argument asserts once
again that the trial court either disregarded the law of the case or was barred by res
judicata from ruling on this case. But, as discussed in Day’s second assignment of
error, neither doctrine applies here. This case involves unique issues that were not
addressed in Day 1.
{¶61} In sum, Day has made no showing that the trial court was without
subject matter jurisdiction in this case. Accordingly, Day’s third assignment of error is
without merit.
{¶62} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Waite, P.J., concurs.

DeGenaro, J., concurs.