State ex rel. Yost v. Orlando

[Cite as State ex rel. Yost v. Orlando, 2022-Ohio-4053.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY

STATE OF OHIO ex rel. CASE NOS. 2022-A-0003
DAVE YOST, 2022-A-0013
ATTORNEY GENERAL OF OHIO,
Civil Appeals from the
Plaintiff-Appellee, Court of Common Pleas

- vs -
Trial Court No. 2021 CV 00368
PATRICK ORLANDO d.b.a.
HOLIDAY VILLAGE MOBILE
HOME PARK,

Defendant-Appellant.

OPINION

Decided: November 14, 2022
Judgment: Affirmed

Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor,
Columbus, OH 43215; Amy M. Geocaris and Katherine A. Walker, Assistant Attorneys
General, Environmental Enforcement Section, 30 East Broad Street, 25th Floor,
Columbus, OH 43215 (For Plaintiff-Appellee).

Kyle B. Smith, Smith & Miller, Attorneys at Law, 36 West Jefferson Street, Jefferson, OH
44047 (For Defendant-Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, Patrick Orlando d.b.a. Holiday Village Mobile Home Park (“Mr.

Orlando”), appeals from the judgments of the Ashtabula County Court of Common Pleas

assessing a civil penalty of $70,000 against him for violations of Ohio’s water pollution

control laws and overruling his motions to vacate and for a new trial.

{¶2} Mr. Orlando asserts three assignments of error, contending that the trial

court abused its discretion (1) by assessing a civil penalty against him in the amount of
$70,000; (2) by overruling his motion to vacate the civil penalty judgment without a

hearing; and (3) by overruling his motion for a new trial on the basis of newly discovered

evidence.

{¶3} After a careful review of the record and pertinent law, we find as follows:

{¶4} (1) Mr. Orlando has not established that the trial court abused its discretion

in assessing a civil penalty against him in the amount of $70,000. Because Mr. Orlando

failed to file a transcript or affidavit with his objections to the magistrate’s decision, we are

precluded from reviewing the transcript submitted on appeal. Thus, we are unable to

review the evidentiary basis for the trial court’s findings.

{¶5} (2) The trial court did not abuse its discretion by overruling Mr. Orlando’s

motion to vacate the civil penalty judgment without a hearing. Mr. Orlando failed to allege

sufficient operative facts in his motion that would warrant relief based on excusable

neglect. Rather, it appears Mr. Orlando filed his motion for the purpose of obtaining a

“do-over” of the penalty hearing with legal representation, which the civil rules do not

permit.

{¶6} (3) The trial court did not abuse its discretion by overruling Mr. Orlando’s

motion for a new trial. Evidence regarding an event that occurred after the penalty hearing

is not considered “newly discovered evidence” upon which to justify the granting of a new

trial.

{¶7} Thus, we affirm the judgments of the Ashtabula County Court of Common

Pleas.

Substantive and Procedural History

{¶8} Mr. Orlando owns and operates the Holiday Village Mobile Home Park

located at 4071 Lake Road, North Kingsville, Ohio. A wastewater treatment facility is
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located on the property. In 2013, Mr. Orlando applied for a National Pollutant Discharge

Elimination System (“NPDES”) permit to allow for the discharge of wastewater from the

treatment facility into Lake Erie. The Director of the Ohio Environmental Protection

Agency (“Ohio EPA”) issued Mr. Orlando an NPDES permit effective from September 1,

2014, to August 31, 2019.

{¶9} In August 2021, appellee, the state of Ohio ex rel. Dave Yost, Attorney

General of Ohio (“the state”), filed a “complaint for injunctive relief and civil penalties”

against Mr. Orlando in the Ashtabula County Court of Common Pleas. The state alleged

that Mr. Orlando failed to comply with various terms and conditions of the NPDES permit;

that following the permit’s expiration, Mr. Orlando continued to discharge wastewater into

Lake Erie; and that Ohio EPA informed Mr. Orlando of these violations through letters

sent in June 2015, August 2017, December 2017, and January 2018.

{¶10} In five asserted claims, the state alleged that Mr. Orlando violated Ohio’s

water pollution control laws under R.C. Chapter 6111 and rules adopted thereunder by,

respectively, (1) discharging pollution into state waters without an NPDES permit; (2)

failing to meet minimum staffing requirements; (3) failing to monitor and/or report

discharges of certain pollutants; (4) failing to comply with the permit’s compliance

schedule, including the submission of plans for plant and sewer system improvements;

and (5) failing to designate an operator of record.

{¶11} The state requested an order permanently enjoining Mr. Orlando from

violating R.C. Chapter 6111, the rules adopted thereunder, and the terms and conditions

of all permits. It further requested orders requiring Mr. Orlando to obtain an NPDES

permit; to make all necessary improvements; to pay civil penalties of $10,000 per day for

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each day of each violation; and to pay all costs and fees of the action, including the state’s

extraordinary enforcement costs and attorney fees.

{¶12} Mr. Orlando was served with the complaint and summons but did not file an

answer or other responsive pleading. The state filed a motion for default judgment. In

October 2021, the trial court filed a judgment entry granting the state’s motion for default

judgment. The trial court permanently enjoined Mr. Orlando from violating R.C. Chapter

6111 and the rules adopted thereunder. It also ordered Mr. Orlando to obtain an NPDES

permit; to make all necessary improvements pursuant to a permit to install issued by Ohio

EPA; and to pay all costs and fees of the action, including the state’s extraordinary

enforcement costs.

{¶13} The trial court scheduled an evidentiary hearing to determine the

appropriate civil penalty to assess against Mr. Orlando. On the day of the penalty hearing,

the state filed a brief requesting that the trial court order Mr. Orlando to pay a civil penalty

of $70,000.

{¶14} A magistrate presided at the penalty hearing. The magistrate’s decision

indicates that the state appeared through counsel; that Mr. Orlando appeared pro se; that

the state presented the testimony of two witnesses and submitted seven exhibits; and

that Mr. Orlando presented his own testimony. Following the penalty hearing, the

magistrate filed a decision recommending, based on the testimony and exhibits

presented, that Mr. Orlando pay the state’s requested civil penalty of $70,000.

{¶15} Mr. Orlando filed pro se objections to the magistrate’s decision. He did not

file a transcript or affidavit of the evidence submitted at the penalty hearing or seek leave

to do so pursuant to Civ.R. 53(D)(3)(b)(iii). Mr. Orlando contended that he was awaiting

Ohio EPA’s issuance of a permit to install improvements to the treatment facility. He also
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contended that the costs of the improvements and the civil penalty would be “ruinous”

and “financially disabling.” The state opposed Mr. Orlando’s objections on procedural

and substantive grounds.

{¶16} In January 2022, the trial court filed a judgment entry affirming and adopting

the magistrate’s decision. The trial court noted that Mr. Orlando failed to file a transcript

or an affidavit or to request leave. Thus, it determined there was no error of law or other

defect on the face of the magistrate’s decision. In a separate judgment entry, the trial

court discussed and made findings under each of the factors set forth in the Supreme

Court of Ohio’s decision in State ex rel. Brown v. Dayton Malleable, Inc., 1 Ohio St.3d

151, 438 N.E.2d 120 (1982), and assessed a civil penalty of $70,000 against Mr. Orlando.

{¶17} Approximately one month later, Mr. Orlando, through counsel, filed a motion

for a new trial pursuant to Civ.R. 59(A)(8) on the basis of newly discovered evidence. Mr.

Orlando contended that Ohio EPA issued him a permit to install the improvements to the

treatment facility approximately three weeks after the penalty hearing.

{¶18} The next day, Mr. Orlando filed a Civ.R. 60(B) motion to vacate the October

2021 and January 2022 judgments on the basis of excusable neglect and newly

discovered evidence and requested an oral hearing. On the same date, Mr. Orlando filed

a notice of appeal of the October 2021 and January 2022 judgments (case no. 2022-A-

0003). The state opposed Mr. Orlando’s motions to vacate and for a new trial, contending

that the trial court was divested of jurisdiction. While Mr. Orlando’s appeal was pending,

a transcript of the penalty hearing was filed in the trial court.

{¶19} On Mr. Orlando’s motion, this court remanded the matter to the trial court to

rule on Mr. Orlando’s motions to vacate and for a new trial. The state filed a supplemental

response in opposition to Mr. Orlando’s motions. In March 2022, the trial court filed a
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judgment entry overruling both of Mr. Orlando’s motions. Mr. Orlando filed a notice of

appeal of the March 2022 judgment (case no. 2022-A-0013). We sua sponte

consolidated Mr. Orlando’s appeals for all purposes.

{¶20} Mr. Orlando raises the following three assignments of error:

{¶21} “[1.] The trial court erred in assessing a civil penalty in the unreasonable

and arbitrary amount of $70,000.00 against appellant Patrick Orlando for partial non-

compliance with EPA orders and violations concerning a small mobile home park

consisting of twenty lots.

{¶22} “[2.] The trial court erred by denying appellant’s motion to vacate the

January 12, 2022 $70,000 civil penalty judgment against appellant Patrick Orlando

without an oral hearing.

{¶23} “[3.] The trial court erred by denying appellant Patrick Orlando’s motion for

new trial under Civil Rule 59(A) based on new evidence, namely the issuance by the EPA

of a permit to install improvements that would have brought appellant into substantial

compliance.”

Civil Penalty

{¶24} In his first assignment of error, Mr. Orlando contends that the trial court

abused its discretion in assessing a civil penalty against him in the amount of $70,000.

{¶25} R.C. Chapter 6111 addresses water pollution control. R.C. 6111.07(A)

provides that “[n]o person shall violate or fail to perform any duty imposed by sections

6111.01 to 6111.08 * * * of the Revised Code or violate any order, rule, or term or condition

of a permit issued or adopted by the director of environmental protection pursuant to those

sections. Each day of violation is a separate offense.”

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 {¶26} The General Assembly intended to use economic sanctions to deter

violations of R.C. Chapter 6111, and thereby to promote the goal of clean water in Ohio,

when it provided for substantial monetary penalties. State ex rel. DeWine v. Deer Lake

Mobile Park, Inc., 2015-Ohio-1060, 29 N.E.3d 35, ¶ 42 (11th Dist.). Thus, R.C.

6111.09(A) provides that “[a]ny person who violates section 6111.07 of the Revised Code

shall pay a civil penalty of not more than ten thousand dollars per day of violation.”

{¶27} Assessing an environmental civil penalty lies within the trial court’s

discretion. Deer Lake at ¶ 41. As long as the amount assessed is less than the statutory

maximum, it is within the trial court’s discretion to fix that amount. Id. In exercising its

discretion, a trial court may apply the factors set forth by the Supreme Court of Ohio in

Dayton Malleable, supra. These factors are “(1) the harm or risk of harm posed to the

environment by the violations, (2) the violator’s level of recalcitrance, defiance, or

indifference to the law, (3) the economic benefit gained by the violation, and (4) the

extraordinary enforcement costs incurred by the state.” Deer Lake at ¶ 44; see Dayton

Malleable at 154-157.

{¶28} On appeal, Mr. Orlando challenges the trial court’s application of the Dayton

Malleable factors. However, because Mr. Orlando failed to file a transcript or affidavit in

support of his objections to the magistrate’s decision, our standard of review is greatly

limited.

{¶29} Civ.R. 53(D)(3)(b)(iii) provides, in relevant part, that “[a]n objection to a

factual finding, whether or not specifically designated as a finding of fact under Civ.R.

53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence submitted to the

magistrate relevant to that finding or an affidavit of that evidence if a transcript is not

available.”
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 {¶30} The Supreme Court of Ohio has held that “[w]hen a party objecting to a

[magistrate’s decision] has failed to provide the trial court with the evidence and

documents by which the court could make a finding independent of the [decision],

appellate review of the court’s findings is limited to whether the trial court abused its

discretion in adopting the [magistrate’s decision], and the appellate court is precluded

from considering the transcript of the hearing submitted with the appellate record.” State

ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254

(1995). “In other words, an appeal under these circumstances can be reviewed by the

appellate court to determine whether the trial court’s application of the law to its factual

findings constituted an abuse of discretion.” Id.

{¶31} An abuse of discretion is the trial court’s “‘failure to exercise sound,

reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54,

2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.2004).

{¶32} Here, Mr. Orlando disputes the evidentiary basis for the trial court’s findings

under Dayton Malleable. Without reviewing the transcript of the penalty hearing,

however, we cannot consider Mr. Orlando’s arguments in the manner he requests.

Although Mr. Orlando was unrepresented when he filed his objections, a pro se litigant is

to be treated the same as one trained in the law as far as the requirement to follow

procedural law. In re Estate of Sowande, 11th Dist. Portage No. 2014-P-0018, 2014-

Ohio-5384, ¶ 48. Otherwise, the court begins to depart from its duty of impartiality and

prejudices the handling of the case as it relates to other litigants represented by counsel.

Id.

{¶33} Accordingly, Mr. Orlando has not established that the trial court abused its

discretion in assessing a civil penalty against him in the amount of $70,000.
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 {¶34} Mr. Orlando’s first assignment of error is without merit, and the trial court’s

January 2022 judgment is affirmed.

Motion to Vacate

{¶35} In his second assignment of error, Mr. Orlando contends that the trial court

abused its discretion by overruling his Civ.R. 60(B) motion to vacate the January 2022

civil penalty judgment on the basis of excusable neglect.1

{¶36} The decision to grant or deny a Civ.R. 60(B) motion is entrusted to the

sound discretion of the trial court. MCS Acquisition Corp. v. Gilpin, 11th Dist. Geauga

No. 2011-G-3037, 2012-Ohio-3018, ¶ 20. Thus, our standard of review is whether the

trial court abused its discretion. Id.

{¶37} “To prevail on a motion brought under Civ.R. 60(B), the movant must

demonstrate that: (1) the party has a meritorious defense or claim to present if relief is

granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)

through (5); and (3) the motion is made within a reasonable time, and, where the grounds

of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order

or proceeding was entered or taken.” GTE Automatic Elec., Inc. v. ARC Industries, Inc.,

47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. “These

requirements are independent and in the conjunctive; thus the test is not fulfilled if any

one of the requirements is not met.” Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d

914 (1994).

1. Mr. Orlando does not challenge the trial court’s denial of his motion in relation to the October 2021
default judgment or the January 2022 judgment adopting the magistrate’s decision. He also does not
contend that his motion should have been granted on the basis of “newly discovered evidence” pursuant to
Civ.R. 60(B)(2).
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 {¶38} There is no dispute regarding the timeliness of Mr. Orlando’s motion (the

third prong). Rather, the parties dispute whether Mr. Orlando established a meritorious

defense (the first prong) and entitlement to relief under one of the grounds in Civ.R.

60(B)(1) through (5) (the second prong). We find the second prong to be dispositive.

{¶39} Mr. Orlando contends that he was entitled to relief under Civ.R. 60(B)(1),

which provides that “the court may relieve a party * * * from a final judgment, order or

proceeding for * * * excusable neglect[.]”

{¶40} “What constitutes ‘excusable neglect’ depends on the facts and

circumstances of each case.” Katko v. Modic, 85 Ohio App.3d 834, 837, 621 N.E.2d 809

(11th Dist.1993). In a typical “excusable neglect” situation, a party has failed to follow a

requisite course of action, and the trial court has therefore penalized the party, often by

default judgment. 2 Robertson & Terez, Baldwin’s Ohio Practice, Civil Practice, Section

60:39 (Rev.Nov.2021). The movant alleges that his or her conduct, although neglectful,

was excusable. Id. Thus, in the context of relief from judgment by default, the Supreme

Court of Ohio has defined “excusable neglect” in the negative, stating that “the inaction

of a defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for

the judicial system.’” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102

(1996), quoting GTE Automatic at 153.

{¶41} Here, the trial court did not assess the civil penalty against Mr. Orlando by

default. Mr. Orlando represented himself at the penalty hearing, and the trial court

decided the case on the merits.

{¶42} In his Civ.R. 60(B) motion, Mr. Orlando contended that he is “an eighty-one

(81) year old man with no business or legal background” and that he “did not fully

understand the proceedings against him or the need to seek legal counsel.” While these
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are excuses, Mr. Orlando did not identify his neglectful conduct in relation to the civil

penalty judgment. “The burden is upon the movant to demonstrate that the interests of

justice demand the setting aside of a judgment normally accorded finality.” Rose

Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21, 520 N.E.2d 564 (1988).

{¶43} In his reply brief on appeal, Mr. Orlando identifies his neglectful conduct as

his “failure to obtain counsel.” He contends that “any competent attorney could have

made a good case for a civil penalty significantly less than $70,000.”

{¶44} While proceeding pro se at the penalty hearing may have affected the

outcome, Mr. Orlando’s failure to obtain counsel constitutes, at most, “neglect” but not

“excusable neglect.” See Dayton Power & Light v. Holdren, 4th Dist. Highland No.

07CA21, 2008-Ohio-5121, ¶ 13. “A party who is informed of court action against him and

fails to seek legal assistance does so at his risk * * *.” Yuhanick v. Cooper, 7th Dist.

Columbiana No. 96-CO-45, 1998 WL 811355, *5 (Nov. 16, 1998). “Courts should not

generally use Civ.R. 60(B)(1) to relieve pro se litigants who are careless or unfamiliar with

the legal system.” Dayton Power at ¶ 12.

{¶45} Moreover, “Civ.R. 60(B) is not intended to permit parties to have ‘do-overs.’”

Gilson v. Am. Inst. of Alternative Medicine, 2016-Ohio-1324, 62 N.E.3d 754, ¶ 73 (10th

Dist.), quoting Adams v. Pitorak & Coenen Invests., Ltd., 11th Dist. Geauga No. 2009-G-

2931, 2010-Ohio-3359, ¶ 84. “Otherwise, a party who receives an unfavorable ruling

could use Civ.R. 60(B) to have potentially unlimited opportunities to submit additional

evidence or present new legal theories, ‘essentially asking the court each time, “is this

enough.” Such “second bites at the apple” are not authorized by the Rules of Civil

Procedure.’” Id., quoting Adams at ¶ 85.

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 {¶46} Here, the trial court aptly explained, “a civil penalty was awarded to [the

state] after a hearing where [Mr. Orlando] appeared after sufficient notice and chose to

represent himself. * * * Only after an adverse ruling in favor of [the state] did [Mr. Orlando]

obtain legal representation to file the present motions. Now [Mr. Orlando] through counsel

is asking essentially for a do-over to re-litigate the matters already decided by the Court,

but this time with legal representation in hope of a favorable outcome.” The trial court’s

analysis is supported by the record and is consistent with Ohio law; thus, we find no abuse

of discretion.

{¶47} Mr. Orlando next contends that he established a meritorious defense.

Because Mr. Orlando did not establish excusable neglect, the trial court properly denied

his Civ.R. 60(B) motion. Therefore, the issue of whether he established a meritorious

defense is moot.

{¶48} Finally, Mr. Orlando contends that he was entitled to an oral hearing on his

Civ.R. 60(B) motion. The Supreme Court of Ohio has held that “‘[i]f the movant files a

motion for relief from judgment and it contains allegations of operative facts which would

warrant relief under Civil Rule 60(B), the trial court should grant a hearing to take evidence

and verify these facts before it rules on the motion.’” Coulson v. Coulson, 5 Ohio St.3d

12, 16, 448 N.E.2d 809 (1983), quoting Adomeit v. Baltimore, 39 Ohio App.2d 97, 105,

316 N.E.2d 469 (8th Dist.1974). Conversely, “[i]f the motion for relief fails to allege

operative facts that would warrant relief, the court need not conduct a hearing.” Coleman

v. Cleveland School Dist. Bd. of Edn., 8th Dist. Cuyahoga Nos. 84274 and 84505, 2004-

Ohio-5854, ¶ 79.

{¶49} As indicated, Mr. Orlando did not identify his neglectful conduct in his

motion; thus, he failed to allege sufficient operative facts. To the extent Mr. Orlando was
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referencing his failure to obtain counsel for the penalty hearing, such neglect did not

warrant relief under Civ.R. 60(B)(1). Accordingly, we find no error regarding the trial

court’s failure to hold an evidentiary hearing.

{¶50} Mr. Orlando’s second assignment of error is without merit.

Motion for a New Trial

{¶51} In his third assignment of error, Mr. Orlando contends that the trial court

abused its discretion by overruling his motion for a new trial pursuant to Civ.R. 59(A)(8)

on the basis of newly discovered evidence.

{¶52} We review a trial court’s judgment on a Civ.R. 59 motion for an abuse of

discretion. Monroe v. Youssef, 11th Dist. Trumbull No. 2009-T-0012, 2012-Ohio-6122, ¶

56.

{¶53} Civ.R. 59(A)(8) provides that a new trial may be granted on the ground of

“[n]ewly discovered evidence, material for the party applying, which with reasonable

diligence he could not have discovered and produced at trial[.]” Here, Mr. Orlando’s

“newly discovered evidence” consists of the permit to install that Ohio EPA issued to him

on December 22, 2021, i.e., three weeks after the penalty hearing.

{¶54} This court has held that “[e]vents that occur after the trial cannot be

considered newly discovered evidence upon which to justify the granting of a new trial.”

Hails v. Hails, 11th Dist. Lake No. 92-L-182, 1993 WL 407258, *1 (Sept. 30, 1993).

Rather, “newly discovered evidence refers to facts in existence at the time of the trial, of

which the parties were excusably ignorant.” Lovejoy v. Lovejoy, 5th Dist. Stark No. 2002-

CA-000034, 2002-Ohio-4877, ¶ 13. “To permit parties to bring up issues and facts that

occurred after the trial would only serve to leave judgments unsettled and open to

challenge at any time. Litigation must come to a reasonable end.” Hails at *1. Accord
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Lawless v. Bd. of Edn. of Lawrence Cty. Educational Serv. Ctr., 2020-Ohio-117, 141

N.E.3d 267, ¶ 69-70 (4th Dist.), appeal not accepted, 159 Ohio St.3d 1464, 2020-Ohio-

3882, 150 N.E.3d 118.

{¶55} Mr. Orlando cites contrary authority from two appellate districts; however,

those decisions appear to be outliers involving unique factual circumstances. See, e.g.,

Knox v. Knox, 26 Ohio App.3d 17, 18, 498 N.E.2d 236 (5th Dist.1986) (a judgment in a

contested divorce case following “unconscionable delay”); Lerner v. Giolekas, 8th Dist.

Cuyahoga No. 102768, 2016-Ohio-696 (a civil stalking protection order). We find no

compelling reason to depart from our precedent. Accordingly, the trial court did not err in

overruling Mr. Orlando’s motion for a new trial.

{¶56} Mr. Orlando’s third assignment of error is without merit, and the trial court’s

March 2022 judgment is affirmed.

{¶57} For the foregoing reasons, the judgments of the Ashtabula County Court of

Common Pleas are affirmed.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

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