[Cite as Monus v. Day, 2011-Ohio-3170.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ROBERT MONUS, POLAND )
TOWNSHIP ZONING INSPECTOR, )
) CASE NO. 10 MA 35
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
LEO C. DAY, Jr., et al. )
)
DEFENDANTS-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Case No. 07 CV 1985.
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee: Attorney David Shepherd
Turner, May & Shepherd
185 High Street, NE
Warren, OH 44481
Attorney Paul Gains
Prosecutor
Attorney Karen Gaglione
Assistant Prosecutor
th
21 W. Boardman Street, 6 Floor
Youngstown, OH 44503
For Defendants-Appellant: Leo C. Day, Pro-se
4301 Dobbins Road
Poland, OH 44514
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: June 13, 2011
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DeGenaro, P.J.
{¶1} Pro-se Defendant-Appellant, Leo C. Day, Jr., appeals the January 22,
2010 judgment of the Mahoning County Court of Common Pleas overruling objections
to a magistrate's decision and permanently enjoining Day, pursuant to R.C. 519.24,
from using his property in violation of a Poland Township Zoning Resolution that
prohibits the storage of abandoned, wrecked and dismantled vehicles and other
equipment. On appeal, Day raises eleven assignments of error which include: the
failure to join an indispensable party; violation of his Fourth and Fifth Amendment
rights; improper admission of evidence at trial; failure to proceed with a case that had
been consolidated with the instant case; finding a violation of the zoning ordinance
without a finding of public nuisance or threat to public health and safety; failure to find
that res judicata applied to this case; applying the zoning ordinance to the property
despite earlier litigation establishing the right to continue a preexisting non-conforming
use; and finally that the trial court erred in failing to find that judgments in other cases
were void for lack of subject matter jurisdiction.
{¶2} Upon review, all of Day's assignments of error are meritless. Day
waived the defense of failure to join necessary parties, and even if it was not waived,
the president of Day's business was not a necessary party to this suit. R.C. 2315.02
permits a jury view, or in the case of a bench trial, a court view, of the premises and
there is no indication that this violated Day's Fourth Amendment rights. The trial court
did not commit plain error by admitting the photographs as exhibits as they were
relevant and properly authenticated. The trial court did not abuse its discretion in its
management of the consolidated cases. Day's Fifth Amendment rights were not
violated by the trial court's order for him to produce documents since they were non-
testimonial in nature. The 1978 Injunction, which established Day's nonconforming
use, did not exempt the property from all zoning regulation. The Zoning Inspector was
not required to find a public nuisance or a threat to public health and safety as a
prerequisite to finding a zoning violation on the property. Finally, there is no indication
that the trial court lacked subject matter jurisdiction and Day cannot attack the validity
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of decisions in completely separate cases via motions made or filed in this case.
Accordingly, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶3} 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.
{¶4} 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 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.
{¶5} The trial court granted the Days a permanent injunction for a truck
hauling business. In its order, the court stated, in pertinent part:
{¶6} "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.
{¶7} "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
volume of business rather than an increase in the character and nature of the
business.
{¶8} "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
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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.)
{¶9} 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.
{¶10} 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.
{¶11} Then, in March 2004, Poland Township filed criminal charges against
Day in Struthers Municipal Court for violating a Poland Township Zoning Resolution,
then Article 300.4(O)(1), now known as Article 7, Section 7.21, which prohibits the
storage of abandoned, wrecked and dismantled vehicles and other equipment on the
property. Day was also charged with violating an ordinance regarding a driveway set-
back requirement. Day moved to dismiss those charges, arguing that the property
was exempt from Poland Township's zoning laws as a pre-existing nonconforming
use. Appellant also argued that res judicata applied because of prior court rulings
declaring the truck hauling business and cement batch plant a pre-existing
nonconforming use. Following a bench trial, the trial court denied Day's motion to
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dismiss, found Day guilty of the zoning violations and fined him accordingly. This
judgment was affirmed by this court on appeal. Poland Twp. v. Day, 7th Dist. No. 05-
MA-220, 2006-Ohio-7070.
{¶12} According to Robert Monus the Poland Township Zoning Inspector, Day
failed to bring his property into compliance with the Zoning Resolution, inasmuch as
he continued to store abandoned, wrecked, and dismantled trucks, vehicles and other
debris and equipment on the property. In 2007, Day was notified in writing of his
continued violations of the Zoning Resolution, specifically Article 7, Section 7.21 which
states:
{¶13} "None of the following, which have been abandoned, wrecked, or
dismantled, shall be permitted to remain on the premises in any zoning district:
automobiles, buses, motorcycles, trucks, tractors, boat, trailer, operating equipment,
aircraft, furniture or other miscellaneous material."
{¶14} Day failed to come into compliance with the Zoning Resolution, failed to
appeal the Zoning Inspector's determination, and was cited criminally in Struthers
Municipal Court for violating the Resolution.
{¶15} On June 4, 2007, the Zoning Inspector commenced the instant suit in
the Mahoning County Court of Common Pleas for a preliminary and permanent
1
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
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.
{¶16} On September 5, 2007, Day filed, through counsel, an answer and
counterclaim for declaratory judgment and injunctive relief. Therein, Day challenged
1
Bertha died during the pendency of the proceedings.
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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 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.
{¶17} 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.
{¶18} 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.
{¶19} 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.
{¶20} 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
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.)
{¶21} 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
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Township. The trial court denied Day's motion for protective order and ordered an in
camera review.
{¶22} 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.
{¶23} 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."
{¶24} 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 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
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barrels with chemicals or concrete on the property that had not been used since 2006.
{¶25} 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."
{¶26} 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.
{¶27} 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.
{¶28} 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.
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{¶29} 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.
{¶30} 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. Day filed a notice of appeal from that judgment, which is
pending separately before this court as Case No. 10MA70. Day filed an affidavit of
disqualification against the members of both panels with the Ohio Supreme Court,
which was denied on February 11, 2011.
Pro-se Litigants
{¶31} Day contends that since he is a pro-se litigant, he should not be held to
the same standards as a practicing attorney would. Although not assigned as an
error, this overarching matter will be discussed first.
{¶32} A party proceeding pro-se is held to the same procedural standards as
other litigants that have retained counsel. State ex rel. Fuller v. Mengel, 100 Ohio
St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, at ¶10. While a court may grant a certain
amount of latitude toward pro-se litigants, the court cannot simply disregard the Rules
of Civil Procedure in order to accommodate a party who fails to obtain counsel.
Pinnacle Credit Servs., LLC v. Kuzniak, 7th Dist. No. 08 MA 111, 2009-Ohio-1021, at
¶30. See, also, Vos v. Village of Washingtonville, 7th Dist. No. 03-CO-20, 2004-Ohio-
1388:
{¶33} "This court has, of course, made some allowances for pro se litigants,
such as in the construction of pleadings and in the formal requirements of briefs.
There is, however, a limit. 'Principles requiring generous construction of pro se filings
do not require courts to conjure up questions never squarely asked or construct full-
blown claims from convoluted reasoning.' * * *Furthermore, this court will not become
appellant counsel for pro se litigants." Id. at ¶7 (internal citations omitted.)
{¶34} "The rationale for this policy is that if the court treats pro se litigants
differently, 'the court begins to depart from its duty of impartiality and prejudices the
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handling of the case as it relates to other litigants represented by counsel.'" Pinnacle
at ¶30, quoting Karnofel v. Kmart Corp., 11th Dist. No.2007-T-0036, 2007-T-0064,
2007-Ohio-6939, at ¶27.
{¶35} Day cites to Haines v. Kerner (1972), 404 U.S. 519, 92 S.Ct. 594, 30
L.Ed.2d 652, in support of his position that as a pro-se litigant he is not held to the
same procedural standards as an attorney. Haines is inapplicable to this case. There
the Supreme Court concluded that allegations in a pro-se complaint, made by a prison
inmate, would be held to "less stringent standards than formal pleadings drafted by
lawyers," and that in construing the complaint in such a manner, the trial court's
12(B)(6) dismissal was inappropriate. Id. at 520. Here, Day argues that he should be
held to less stringent standards throughout the proceedings, and that doctrines such
as waiver should not apply to him. As a matter of law, Day is presumed to know the
procedures under the Civil Rules and to know that failure to properly raise issues in
the trial court pursuant to the Rules can constitute a waiver thereof. See, e.g., Sky
Bank v. Hill, 7th Dist. No. 03 MA 114, 2004-Ohio-3046, at ¶9.
Failure to Join Necessary Parties
{¶36} In his first of eleven assignments of error, some of which will be
discussed jointly or out of order for ease of analysis, Day asserts:
{¶37} "[T]he Trial Court erred in granting a preliminary injunction contrary to
procedural, statute and constitutional law."
{¶38} Day contends that the trial court erred in granting the permanent
injunction because the Zoning Inspector failed to name the president of Day's
business as a party. Day claims that because the items on Day's property which are
causing the alleged zoning violation are owned by the business, the president was a
necessary party to this suit. This argument is meritless for several reasons.
{¶39} First, Day has waived this defense. Civ.R. 19.1(A) and 19(A) concern
compulsory and permissive joinder, respectively, and both expressly provide that the
failure to timely assert the defense pursuant to Civ.R. 12(G) or 12(H) constitutes a
waiver thereof. Under Civ.R. 12(H)(2), a defense of failure to join an indispensable
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party under Civ.R. 19 may be made in "any pleading permitted or ordered by Civ.R.
7(A), by motion for judgment on the pleadings, or at trial on the merits." Civ.R.
12(H)(2). Importantly, "a party waives this defense when it fails to take affirmative
action to prosecute it." Nationwide Mut. Fire Ins. Co. v. Logan, 12th Dist. No.
CA2005-07-206, 2006-Ohio-2512, at ¶33. Thus, "merely raising the defense in an
answer without further affirmative action to prosecute the raised defense results in a
waiver of [the] defense." Id. at ¶24, quoting and adopting Mihalic v. Figuero (May 26,
1988), 8th Dist. No. 53921.
{¶40} Although Day did raise the "failure to name indispensable parties" as a
defense in his answer, he failed to further affirmatively pursue this defense. He did
not raise this issue in any pretrial motion, at trial before the magistrate, or in his
objections to the magistrate's decision. Accordingly, Day has waived this defense.
{¶41} Even if the defense was not waived, the president of the business would
not be a necessary party to this suit. Contrary to Day's assertions, Civ.R. 65 is
inapplicable to this case. R.C. 519.24 authorizes the injunctive remedy in this case.
See Baker v. Blevins, 162 Ohio App.3d 258, 2005-Ohio-3664, 833 N.E.2d 327, at ¶12.
"Because R.C. 519.24 grants the injunctive remedy, the township is "not required to
plead or prove an irreparable injury or that there is no adequate remedy at law, as is
required by Civ.R. 65." Id., citing Union Twp. Bd. of Trustees v. Old 74 Corp. (2000),
137 Ohio App.3d 289, 294, 738 N.E.2d 477. Further, only the person with the present
possessory interest in a parcel of real property is limited by zoning regulations; thus
only the present possessor can be harmed by restrictions placed on the property as a
result of the zoning regulations. Zeltig Land Dev. Corp. v. Bainbridge Twp. Bd. of
Trustees (1991), 75 Ohio App.3d 302, 306, 599 N.E.2d 383. The present possessor
must be sued or joined as a party to enjoin it from actions on the property that are
allegedly in violation of the relevant zoning regulations. River Bend Farm
Development Company v. Cellular One (Mar. 8, 1996) 11th Dist. No. 95-P-0076, at *2.
Thus, only the present possessor is a necessary party defendant in a suit brought to
enjoin zoning violations on the property. Accordingly, Day's first assignment of error is
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meritless.
Viewing the Property
{¶42} In his second assignment of error, Day asserts:
{¶43} "[T]he Trial Court erred in allowing opposing party access to Appellant's
property despite an assertion of a Fourth Amendment Right."
{¶44} Day argues for the first time in his reply brief that this was procedurally
improper, because he was not afforded the opportunity to file objections to the
magistrate's decision to view the property. Because Day did not raise this issue in his
assignment of errors we must disregard it. "A reply brief is not to be used by an
appellant to raise new assignments of error or issues for consideration; it is merely an
opportunity to reply to the appellee's brief." Scibelli v. Pannunzio, 7th Dist. No. 02 CA
175, 2003-Ohio-3488, at ¶11, citing Sheppard v. Mack (1980), 68 Ohio App.2d 95, 97,
427 N.E.2d 522; App.R. 16(C). Moreover, the magistrate properly permitted a view of
the premises.
{¶45} R.C. 2315.02 permits a jury view of the premises in a civil case, and
states in pertinent part:
{¶46} "If the court is of the opinion that it is proper for the jurors to have a view
of property which is the subject of litigation, or of a place where a material fact
occurred, it may order them to be conducted in a body under the charge of an officer
to such property or place, which shall be shown to them by a person appointed by the
court for that purpose."
{¶47} A view of the premises is solely for the purpose of enabling the trier of
fact to understand and apply the evidence offered at trial. Lacy v. Uganda Invest.
Corp. (1964), 7 Ohio App.2d 237, 241, 195 N.E.2d 586; Maggart v. Deaton (1948), 84
Ohio App. 327, 329, 87 N.E.2d 352 (applying predecessor to R.C. 2315.02). A jury
view is not conducted to gather evidence; rather, the case must be tried and
determined upon the evidence offered at trial. Lacy at 241. When the case is tried
before the bench, the trial court assumes the jury's role as trier of fact and R.C.
2315.02 applies. State v. Eckard, 11th Dist. No. 2001-G-2336, 2002-Ohio-3127, at
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¶14, citing, Peltier v. Smith (1946), 78 Ohio App. 171, 177, 66 N.E.2d 117.
{¶48} Permitting a view of the premises pursuant to R.C. 2315.02 is left to the
discretion of the trial court and is therefore subject to an abuse of discretion review on
appeal. Vistein v. Keeney (1990), 71 Ohio App.3d 92, 593 N.E.2d 52; Moore v.
Marietta Coal Co. (Sept. 1, 1981), 7th Dist. No. 80-B-31, at *7. An abuse of discretion
connotes more than an error of law or judgment; it implies an attitude that is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219, 5 OBR 481, 482-483, 450 N.E.2d 1140, 1142.
{¶49} There is no indication that the trial court abused its discretion by
permitting a jury view. Nonetheless, Day contends that the decision to permit a view
of the premises violates his Fourth Amendment rights, and that opposing counsel was
using deceptive tactics to gain access to his property to somehow acquire evidence to
use against him in a separate criminal proceeding. These claims are unfounded.
{¶50} First, R.C. 2945.16 likewise permits a jury view of the premises in
criminal cases. Second, Day cites to no case law, nor did a search reveal any cases
concluding that R.C. 2945.16 or 2315.02 are unconstitutional. State statutes enjoy a
strong presumption of constitutionality. State v. Tooley, 114 Ohio St.3d 366, 2007-
Ohio-3698, 872 N.E.2d 894, at ¶29, citing, State ex rel. Jackman v. Cuyahoga Cty.
Court of Common Pleas (1967), 9 Ohio St.2d 159, 161, 38 O.O.2d 404, 224 N.E.2d
906. Finally, permitting a view of the premises does not violate Day's Fourth
Amendment rights.
{¶51} "The Fourth Amendment proscribes all unreasonable searches and
seizures, and it is a cardinal principle that 'searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under
the Fourth Amendment-subject only to a few specifically established and well-
delineated exceptions.'" Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct.
507, 19 L.Ed.2d 576.
{¶52} The view of Day's property was conducted under the auspices of the
court, which concluded that such a view was reasonable. The magistrate, parties and
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opposing counsel conducted a view of the outside of Day's property. Moreover,
"[a]lthough society generally respects a person's expectations of privacy in a dwelling,
what a person chooses voluntarily to expose to public view thereby loses its Fourth
Amendment protection." State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, 860
N.E.2d 1006, at ¶15, citing California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809,
90 L.Ed.2d 210. Day's property was the subject not only of the Zoning Inspector's
complaint for injunctive relief and his counterclaim, but his pro-se complaint as well..
For these reasons, the view of the premises in this case does not implicate Fourth
Amendment concerns. Day's second assignment of error is meritless.
Admission of Photographs/Fraud by Opposing Counsel
{¶53} In his fourth assignment of error, Day asserts:
{¶54} "[T]he prosecutor committed fraud upon the court by providing
misrepresented evidence to the court."
{¶55} Day argues that opposing counsel misrepresented the date of certain
photographs as exhibits and that these exhibits were erroneously admitted as
evidence. However, Day failed to object to the admission of these exhibits at trial, and
thus he waived all but plain error review. Jacobsen v. Jacobsen, 7th Dist. No. 03 MA
3, 2004-Ohio-3045, at ¶11, citing Blanton v. Internatl. Minerals & Chem. Corp. (1997),
125 Ohio App.3d 22, 27, 707 N.E.2d 960.
{¶56} The plain error doctrine is rarely invoked in civil cases and moreover is
discretionary on the part of the reviewing court. It "may be applied only in the
extremely rare case involving exceptional circumstances where error, to which no
objection was made at the trial court, seriously affects the basic fairness, integrity, or
public reputation of the judicial process, thereby challenging the legitimacy of the
underlying judicial process itself." Goldfuss v. Davidson (1997), 79 Ohio St.3d 116,
679 N.E.2d 1099, at paragraph one of the syllabus. In Goldfuss, the Court explained
that the doctrine shall only be applied in extremely unusual circumstances where the
error complained of, if left uncorrected, would have a material adverse effect on the
character of and public confidence in judicial proceedings. Id. at 121. The Court
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continued that the public's confidence is rarely upset merely by forcing civil litigants to
live with the errors they themselves or the attorney chosen by them committed at trial.
Id. at 121-122.
{¶57} The trial court did not commit error, let alone plain error by admitting the
photographs, as they were relevant to the proceedings and properly authenticated:
{¶58} "Q. One moment, Mr. Monus, if you would. Did you take these
photographs?
{¶59} "A. Yes.
{¶60} "Q. Or were you at least there when they were taken?
{¶61} "A. Yes.
{¶62} "Q. Or were you at least there when they were taken?
{¶63} "A. Yes. So this is the inspection that we had done with Mr. Day's
attorney and the prosecutor's office.
{¶64} "Q. Back in 2007?
{¶65} "A. Yes.
{¶66} "Q. And do the photographs fairly and accurately depict the property as it
existed in June of 2007 when you filed the complaint?
{¶67} "A. Yes.
{¶68} "* * *
{¶69} "Q. * * * Mr. Monus, do the photographs, Plaintiff's Exhibits 3-24, fairly
and accurately depict the property as it exists today?
{¶70} "A. Yes, pretty much the same."
{¶71} Moreover, the magistrate visited the property and was able to view the
condition first-hand. Based on the above, the trial court did not commit plain error by
admitting the photographs. Further, Day's assertions of fraud on the part of opposing
counsel are unsupported by the record, and appear to be wholly meritless.
Accordingly, Day's fourth assignment of error is meritless.
Treatment of Consolidated Cases
{¶72} In his fifth assignment of error, Day asserts:
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{¶73} "[T]he Trial Court erred in not proceeding forward with consolidated
Case No. 07 CV 4404."
{¶74} Day contends that the trial court erred by not proceeding to hear his
complaint despite having consolidated it with the Zoning Inspector's case. A court's
decision to consolidate cases pursuant to Civ.R. 42(A) is reviewed for an abuse of
discretion, as is, more generally, the court's management of its docket. See Director
of Highways v. Kleines (1974), 38 Ohio St.2d 317, 319, 313 N.E.2d 370; Jamestown
Village Condo. Owners Assn. v. Market Media Research, Inc., 96 Ohio App.3d 678,
687, 645 N.E.2d 1265. "The obvious purpose of Rule 42(A) is for convenience of trial,
for preventing multiplicity of actions, and for the saving of costs." Civ.R. 42(A), Staff
Notes (1970).
{¶75} When two cases are consolidated, they are not merged into a single
cause but maintain their individual identities. Transcon Builders, Inc. v. City of Lorain
(1976), 49 Ohio App.2d 145, 359 N.E.2d 715, syllabus. The trial court did not abuse
its discretion by deciding the Zoning Inspector's case before Day's pro-se complaint
despite the consolidation. Further, Day cannot show prejudice. Since the trial court
included the Civ.R. 54(B) language in that entry, the January 22, 2010 judgment is a
final appealable order and Day's pro-se complaint remains pending in the trial court.
For all these reasons, Day's fifth assignment of error is meritless.
Discovery
{¶76} In his third assignment of error, Day asserts:
{¶77} "[T]he Trial Court erred in forcing Appellant to surrender his personal
books and papers despite an assertion of a Fifth Amendment right."
{¶78} This assignment of error involves a discovery dispute that occurred in
the separate case filed by Day which, although consolidated with the Zoning
Inspector's case, was never finally disposed of in the trial court, and thus not a part of
this appeal. Further, this assigned error involves the conduct of a party, Poland
Township, that is not an appellee in this appeal. As we lack jurisdiction over this
assignment of error, it is dismissed.
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Effect of the 1978 Injunction
{¶79} In his eighth, ninth, and tenth assignments of error Day asserts,
respectively:
{¶80} "[T]he Trial Court erred in denying Appellant's legal arguments that the
doctrine of res judicata applied to Appellant's case."
{¶81} "[T]he Trial Court erred in ignoring a mandate of the Seven [sic] District
Court of Appeals."
{¶82} "[T]he Trial Court erred in retroactively applying the Poland Township
Resolution to Appellant's property despite a pre-vested right."
{¶83} Each of these assignments of error hinge upon Day's contention that
the 1978 Injunction, and this court's subsequent decision upholding the Injunction,
effectively preclude the Zoning Inspector from regulating Day's use of his property.
{¶84} The 1978 Injunction does not exempt the property from all zoning
regulation. Rather, it granted the Days a permanent injunction to continue its truck
hauling business as a pre-existing nonconforming use. In its order upheld by this
court on appeal, Day v. Poland Twp. Trustees (Sept. 15, 1983), 7th Dist. No. 82 C.A.
76, the trial court stated, in pertinent part:
{¶85} "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.
{¶86} "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
volume of business rather than an increase in the character and nature of the
business.
{¶87} "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
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destroy the existing right."
{¶88} The 1978 Injunction does not permit Day to violate Article 7, Section
7.21 of the Zoning Resolution. This Court has previously reached this conclusion in
Day, 2006-Ohio-7070, with regard to the predecessor of Article 7, Section 7.21:
{¶89} "The plain language of the 1978 injunction is clear and there is no need
for modification or clarification from the issuing court - trucks were only to be stored on
the property on a temporary basis.
{¶90} "It is also clear from the language of the 1978 injunction which
established appellant's preexisting nonconforming use concerning the truck hauling
business that that use did not excuse appellant from complying with [the] Poland
Township Zoning Resolution[.]" Day, 2006-Ohio-7070, at ¶21-22.
{¶91} Day's res judicata argument is also meritless. The facts surrounding
the instant litigation are different than they were in 1978, and therefore the 1978
Injunction does not have a preclusive effect on the outcome of this case.
{¶92} Finally, Day argues that the trial court erred by failing to admit briefs
and pleadings from the 1978 Injunction into evidence at trial in this case. Decisions
regarding the admissibility of evidence are within the broad discretion of the trial court
and will be upheld absent an abuse of discretion. Beard v. Meridia Huron Hosp., 106
Ohio St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323, at ¶20. "Even in the event of an
abuse of discretion, a judgment will not be disturbed unless the abuse affected the
substantial rights of the adverse party or is inconsistent with substantial justice." Id.
The trial court did not abuse its discretion. Day sought to admit those briefs in an
attempt to prove what arguments were raised and litigated during that case. Although
the trial court did not allow the briefs and pleadings from that case into evidence, it did
admit the 1978 Injunction decision into evidence and took judicial notice of this court's
decision affirming the 1978 Injunction. In light of that, Day cannot show how the
court's decision prejudiced him.
{¶93} Accordingly, Day's eighth, ninth, and tenth assignments of error are
meritless.
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Application of Zoning Resolution
{¶94} In his sixth assignment of error, Day asserts:
{¶95} "[T]he Trial Court erred in finding Appellant in violation of the Poland
Township Zoning Resolution absent a finding of a public nuisance or a threat to public
health and safety."
{¶96} This assignment of error is meritless for several reasons. First, a
similar argument was raised by Day and rejected by this court in Day, 2006-Ohio-
7070:
{¶97} "Appellant argues that the doctrine of nonconforming use should be
applied to his land because of the 1978 injunction permitting the nonconforming use of
the truck hauling business. Appellant contends that because storing abandoned
vehicles and debris on his property is part of the nonconforming use permitted by the
injunction, the zoning laws are only applicable if the use is a public nuisance or a
threat to public safety.
{¶98} "Appellant cites City of Dublin v. Finkes (1992), 83 Ohio App.3d 687,
615 N.E.2d 690 where the court held "certain municipal police power regulations or
ordinances may be applied retroactively even to nonconforming uses. However, this
exception applies to those regulations or ordinances which are based upon " ' * * * a
factual determination that the continued use of the property without improvement
immediately and directly imperils the public health * * * [or] safety * * *.' " Id. at 691,
615 N.E.2d 690, quoting Gates Co. v. Columbus Hous. Appeals Bd. (1967), 10 Ohio
St.2d 48, 52, 39 O.O.2d 42, 225 N.E.2d 222. Appellant believes that because his
nonconforming use is not a public nuisance or a threat to public safety or health, the
zoning laws are inapplicable to him.
{¶99} "As Poland Township correctly observes, appellant's reliance on Finkes
is misplaced. The Township's zoning laws were not being applied to appellant's pre-
existing nonconforming use of the property as a truck hauling business. As discussed
under appellant's first assignment of error, the 1978 injunction did not contemplate
appellant storing "abandoned, wrecked, or dismantled" trucks on the property. In
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other words, appellant's pre-existing nonconforming use did not include the storing of
"abandoned, wrecked, or dismantled" trucks. Therefore, Poland Township Zoning
Resolution, Article Three, Section 300.4(O)(1), applies to appellant just as it would
anyone else." Day, 2006-Ohio-7070, at ¶28-30.
{¶100} Likewise, the cases cited by Day in the context of this appeal are
inapposite. The Zoning Inspector did not apply its Zoning Resolution to Day's
nonconforming use. Rather, the Zoning Resolution was applied to uses that greatly
exceeded the scope of Day's nonconforming use, to wit, the storage of abandoned,
inoperable and dismantled truck parts and other miscellaneous equipment and debris.
{¶101} Finally, the Zoning Inspector did testify that there were health and
safety concerns regarding the violations on Day's property:
{¶102} "Q. Can you explain the health and safety factor of Article Seven,
Section 72.1?
{¶103} "A. Yes, dealing with the health and safety is having these drums,
barrels, vehicles that are leaking antifreeze, battery acid, fuel into the ground, into the
waterway, if you're aware that there is [sic] some creeks that run into the rear portion
of your yard that drain into the major spill waterways. Those are concerns that the
township would have in terms of polluting any down streams, individual, natural
wildlife. So yes, there is a concern with respect to that."
{¶104} Accordingly, Day's sixth assignment of error is meritless.
Trial Court's Refusal to Void Judgments in Other Cases
{¶105} Finally, in his seventh and eleventh assignments of error, Day asserts,
respectively:
{¶106} "[T]he Trial Court erred in allowing a void judgment to be presented as
evidence."
{¶107} "[T]he trial court erred in neglecting to continuously inspect the record
to insure it had subject matter jurisdiction to proceed forward."
{¶108} Day contends that judgments rendered in the Struthers Municipal
Court, and this court's decision in Poland Twp. v. Day, 7th Dist. No. 05-MA-220, 2006-
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Ohio-7070, are void for lack of subject matter jurisdiction, and that the trial court erred
by admitting them as evidence. Day also seems to argue that the trial court in this
case lacked subject matter jurisdiction.
{¶109} As aforementioned, evidentiary matters are left to the discretion of the
trial court and are reviewed for an abuse of discretion. Beard, 106 Ohio St.3d 237, at
¶20. The trial court did not abuse its discretion by admitting those judgments into
evidence. No court has ruled that these judgments are void. Day contends he can file
a motion in the midst of a court case and attack decisions from other cases as void
and inadmissible, when that is not the proper procedure. Rather, "the appropriate
recourse for challenging a void judgment that is encumbered by a jurisdictional defect
is to file a common-law motion to vacate based upon the inherent power of a trial court
to set aside a judgment." Miley v. STS Systems, Inc., 153 Ohio App.3d 752, 2003-
Ohio-4409, 795 N.E.2d 1254, at ¶7.
{¶110} While it is axiomatic that subject-matter jurisdiction cannot be waived,
and may be raised sua sponte by the trial court, Foreman v. Lucas Cty. Court of
Common Pleas, 189 Ohio App.3d 678, 2010-Ohio-4731, 939 N.E.2d 1302, at ¶12, 18,
here there is no indication that the trial court lacked subject matter jurisdiction to
proceed. In fact, the issue of the trial court's subject matter jurisdiction was raised by
Day in his petition for writ of prohibition and rejected by the Ohio Supreme Court.
Accordingly, Day's seventh and eleventh assignments of error are meritless.
{¶111} Day's assignments of error are meritless. Day waived the defense of
failure to join necessary parties, and even if it was not waived, the president of Day's
business was not a necessary party to this suit. R.C. 2315.02 permits a jury view, or
in the case of a bench trial, a court view, of the premises and there is no indication
that this violated Day's Fourth Amendment rights. The trial court did not commit plain
error by admitting the photographs as exhibits as they were relevant and properly
authenticated. The trial court did not abuse its discretion in its management of the
consolidated cases. Day's Fifth Amendment rights were not violated by the trial
court's order for him to produce documents since they were non-testimonial in nature.
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The 1978 Injunction, which established Day's nonconforming use did not exempt the
property from all zoning regulation. The Zoning Inspector was not required to find a
public nuisance or a threat to public health and safety as a prerequisite to finding a
zoning violation on the property. Finally, there is no indication that the trial court
lacked subject matter jurisdiction and Day cannot attack the validity of decisions in
completely separate cases via motions made or filed in this case. Accordingly, the
judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.