[Cite as Bayes v. Jago, 2018-Ohio-4407.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RENEE BAYES JUDGES:
Hon. John W. Wise, P.J
Petitioner – Appellee Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 18-CA-7
MICHAEL JAGO
Respondent – Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Perry County Court of
Common Pleas, Case No. 18-CP-00017
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 31, 2018
APPEARANCES:
For Petitioner-Appellee For Respondent-Appellant
RENEE BAYES, pro se K. ROBERT TOY
217 East Main Street Toy Law Office
Junction City, Ohio 43748 50 ½ South Court Street
Athens, OH 45701
Perry County, Case No. 18-CA-7 2
Hoffman, J.
{¶1} Respondent-appellant Michael Jago appeals the March 23, 2018 decision
entered by the Perry County Court of Common Pleas granting a civil stalking protection
order in favor of petitioner-appellee Renee Bayes.
STATEMENT OF THE CASE
{¶2} On February 21, 2018, Appellee filed a petition for civil stalking protection
order against Appellant. The trial court issued an ex parte order the same day. On March
8, 2018, the trial court scheduled a full hearing on Appellee's petition to be held on March
23, 2018. Appellant filed a pro se motion for a continuance of the March 23, 2018 hearing
on March 23, 2018.
{¶3} On the day of the hearing, the trial court waited fifteen minutes past the
designated start time, but Appellant did not appear. Thereafter, the trial court proceeded
with the full hearing. At the conclusion of the hearing, the trial court issued a one-year
civil stalking protection order against Appellant, which is to remain in effect until March
23, 2019.
{¶4} It is from this order Appellant appeals, raising as his sole assignment of
error:
Perry County, Case No. 18-CA-7 3
THE TRIAL COURT ERRED IN NOT GRANTING A REASONABLE
CONTINUANCE TO RESPONDENT IN ORDER TO OBTAIN COUNSEL.
I.
{¶5} R.C. 2903.214(D)(2)(a) addresses full hearings and continuances regarding
civil protection petitions as follows:
If the court, after an ex parte hearing, issues a protection order
described in division (E) of this section, the court shall schedule a full
hearing for a date that is within ten court days after the ex parte hearing.
The court shall give the respondent notice of, and an opportunity to be heard
at, the full hearing. The court shall hold the full hearing on the date
scheduled under this division unless the court grants a continuance of the
hearing in accordance with this division. Under any of the following
circumstances or for any of the following reasons, the court may grant a
continuance of the full hearing to a reasonable time determined by the court:
Prior to the date scheduled for the full hearing under this division, the
respondent has not been served with the petition filed pursuant to this
section and notice of the full hearing.
The parties consent to the continuance.
The continuance is needed to allow a party to obtain counsel.
Perry County, Case No. 18-CA-7 4
The continuance is needed for other good cause. (Emphasis added.)
{¶6} The decision to grant or deny a motion to continue is entrusted to the broad
discretion of the trial court. Hartt v. Munobe (1993), 67 Ohio St.3d 3, 9, 615 N.E.2d 617.
Ordinarily, a reviewing court analyzes a denial of a continuance in terms of whether the
court has abused its discretion. Ungar v. Sarafite (1964), 376 U.S. 575, 589, 84 S.Ct 841,
11 L.Ed2d 921; State v. Wheat, 5th Dist. Licking App. No. 2003-CA-00057, 2004-Ohio-
2088. An abuse of discretion connotes more than a mere error in law or judgment; it
implies an arbitrary, unreasonable, or unconscionable attitude on the part of the trial court.
Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶7} In evaluating whether the trial court has abused its discretion in denying a
continuance, appellate courts apply a balancing test which takes into account a variety of
competing considerations, including 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; and whether the defendant
contributed to the circumstance which gives rise to the request for a continuance. State
v. Unger, 67 Ohio St.2d 65, 67–68, 423 N.E.2d 1078 (1981).
{¶8} Appellant was served with a copy of Appellee’s petition for civil stalking
protection order on March 2, 2018. On March 8, 2018, the trial court issued a hearing
notice, scheduling a full hearing on Appellee's petition for March 23, 2018. Appellant
contacted the trial court via telephone on March 22, 2018, advised the trial court his
attorney was not available for the hearing the next day, and requested a continuance.
Appellant filed a written request on March 23, 2018, at 10:50 a.m., indicating his attorney
Perry County, Case No. 18-CA-7 5
would not be available for five weeks. There is no indication in the record Appellant’s
attorney ever filed a notice of appearance or otherwise notified the court, either orally or
in writing, of his acceptance of representation of Appellant, let alone request a five week
continuance. The written request was not served on Appellee. Because of the late filing
of Appellant’s motion and the length of the delay requested, we do not find the trial court
abused its discretion in denying Appellant’s request for a continuance.
{¶9} Appellant’s sole assignment of error is overruled.
By: Hoffman, J.
Wise, John, P.J. and
Wise, Earle, J. concur