Bayes v. Jago

2018 Ohio 4407

Opinion

[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