[Cite as Cook v. Donley, 2019-Ohio-3750.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
BRENDA COOK JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellant Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2019 CA 0021 CRAIG DONLEY, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 17 CV 325
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 18, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
MICHAEL J. FUSCO DAVID D. CARTO FUSCO, MACKEY, MATHEWS & GILL WELDON, HUSTON & KEYSER 1069 Melinda Drive 76 North Mulberry Street Westerville, Ohio 43081 Mansfield, Ohio 44902 Richland County, Case No. 2019 CA 0021 2
Wise, John, P. J.
{¶1} Appellant Brenda Cook appeals the decision of the Richland County
Common Pleas Court denying her motion for continuance and granting a directed verdict
in favor of Appellees Craig Donley and Jennifer Donley.
STATEMENT OF THE FACTS AND CASE
{¶2} The relevant facts and procedural history are as follows.
{¶3} Appellees Craig and Jennifer Donley were the owners of a home located at
599 Harlan Road, Mansfield, Ohio, 44903, until 2013, when the property was sold to
Appellant Brenda Cook.
{¶4} On May 11, 2015, Plaintiff-Appellant Brenda Cook filed her original
Complaint in the Richland County Court of Common Pleas, titled Richland County
Common Pleas Case No. 15-CV-623. Due to delays in discovery and several
continuances of the scheduled trial, the 2015 case was dismissed without prejudice by
way of stipulated entry on April 20, 2017.
{¶5} Appellant re-filed her complaint on April 24, 2017, titled Richland County
Common Pleas Case Number 17-CV-325. This is the case at hand in this appeal.
{¶6} A jury trial was initially scheduled for March 8, 2018, but was continued on
March 6, 2018 in order to allow the Court additional time to rule on the pending motions
for summary judgment filed by all defendants.
{¶7} Appellant had originally named several defendants in her action, but on
April 3, 2018, the trial court granted summary judgment against Appellant in regards to
all of her claims except one, a breach of contract claim relating to alleged damage caused Richland County, Case No. 2019 CA 0021 3
by Appellees to Appellant's driveway. This last remaining claim, the subject of this appeal,
was to move forward to a bench trial, which was set for February 1, 2019.
{¶8} Appellant filed a motion for continuance of the final pretrial scheduled for
January 3, 2019, which was granted.
{¶9} Appellant failed to pay a required jury deposit, and therefore the trial court,
on January 28, 2019, denied Appellant's motion to have the case reset for a jury trial.
{¶10} The case was bumped due to ongoing criminal trials on January 31, 2019,
and a bench trial was rescheduled for February 22, 2019.
{¶11} On February 19, 2019, three days before the scheduled bench trial,
Appellant filed a Motion for Continuance. This Motion contained three Exhibits:
1. Exhibit A: an obituary of Ralph E. Brown.
2. Exhibit B: A letter dated 1/30/19 purportedly authored by Peggy A. Walter, and
addressed to Appellant's counsel (filed under seal).
3. Exhibit C: a letter dated 2/13/19 purportedly authored by Peggy A. Walter and
again addressed to Appellant's counsel (filed under seal).
{¶12} A fourth exhibit was presented at the bench trial, which was labeled as
Exhibit D. (T. at 4). Exhibit D was again filed under seal and is a third letter purportedly
from Peggy A. Walter.
{¶13} The letters all are unsigned and do not appear on any letterhead. (T. at 5).
The letters were not signed under oath, notarized, or otherwise provided as affidavits.
The letters "MA, LPCC" appear after Walter's name on the correspondence, but no facts
in the record exist to establish what degree or profession those alleged degrees or
credentials represent. Richland County, Case No. 2019 CA 0021 4
{¶14} On February 19, 2019, Appellees filed a response objecting to the Motion
stating that the exhibits attached to said motion were unsigned and unverifiable.
{¶15} On February 21, 2019, the trial court filed an Entry denying the motion.
{¶16} On February 22, 2019, a bench trial was held in this matter.
{¶17} At the bench trial, Appellant failed to appear and counsel for Appellant
appeared alone. No witnesses were in attendance. (T. at 3). Counsel argued that
Appellant could not attend "per her medical professionals." (T. at 3). The trial court again
denied Appellant's Motion for a continuance.
{¶18} The trial court gave Appellant's counsel the option to proceed with his case.
Appellant's counsel chose not to call any witnesses or to call Appellees on cross-
examination. (T. at 10). No testimony was presented on behalf of Appellant at the bench
trial.
{¶19} Appellees moved for a directed verdict due to the failure of Appellant to
present any evidence, and the motion was granted. (T. at 13-14).
{¶20} By Judgment Entry filed March 8, 2019, the trial court journalized the denial
of the motion for continuance and the granting of the motion for a directed verdict.
{¶21} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶22} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT'S MOTION FOR CONTINUANCE AND GRANTING APPELLEES A
DIRECTED VERDICT WHEN APPELLANT WAS UNDERGOING A LIFE-
THREATENING EMOTIONAL CRISIS WHICH RENDERED HER UNABLE TO
PARTICIPATE IN THE SCHEDULED TRIAL. Richland County, Case No. 2019 CA 0021 5
{¶23} “II. BY DENYING OF [SIC] APPELLANT'S MOTION FOR CONTINUANCE
AND INSISTENCE ON PROCEEDING IN HER ABSENCE, THE TRIAL COURT
DEPRIVED APPELLANT OF HER RIGHT TO DUE PROCESS OF LAW. [ID.] THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.”
I., II.
{¶24} In her first and second assignments of error, Appellant argues that the trial
court erred in denying her motion for a continuance. We disagree.
{¶25} “The grant or denial of a continuance is a matter which is entrusted to the
broad, sound discretion of the trial judge.” State v. Unger, 67 Ohio St.2d 65, 67, 423
N.E.2d 1078 (1981). Therefore, an appellate court must not reverse a trial court's decision
to deny a motion for continuance unless it finds that the trial court abused its discretion.
Id.; State v. Wheat, 5th Dist. Licking No. 2003–CA–00057, 2004–Ohio–2088, ¶ 16. In
order to find an abuse of discretion, the reviewing court must determine that the trial
court's decision was unreasonable, arbitrary, or unconscionable and not merely an error
of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
{¶26} The reviewing court must balance the interests of judicial economy and
justice against any potential prejudice to the moving party. State v. Scott, 5th Dist. Stark
No. 2001CA0004, 2001 WL 1744125 (Dec. 28, 2001). To constitute a sufficient ground
for a continuance because of the absence of a party, it must appear that: the party's
absence is unavoidable, rather than voluntary; the party's presence at trial is necessary;
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[Cite as Cook v. Donley, 2019-Ohio-3750.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
BRENDA COOK JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellant Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2019 CA 0021 CRAIG DONLEY, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 17 CV 325
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 18, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
MICHAEL J. FUSCO DAVID D. CARTO FUSCO, MACKEY, MATHEWS & GILL WELDON, HUSTON & KEYSER 1069 Melinda Drive 76 North Mulberry Street Westerville, Ohio 43081 Mansfield, Ohio 44902 Richland County, Case No. 2019 CA 0021 2
Wise, John, P. J.
{¶1} Appellant Brenda Cook appeals the decision of the Richland County
Common Pleas Court denying her motion for continuance and granting a directed verdict
in favor of Appellees Craig Donley and Jennifer Donley.
STATEMENT OF THE FACTS AND CASE
{¶2} The relevant facts and procedural history are as follows.
{¶3} Appellees Craig and Jennifer Donley were the owners of a home located at
599 Harlan Road, Mansfield, Ohio, 44903, until 2013, when the property was sold to
Appellant Brenda Cook.
{¶4} On May 11, 2015, Plaintiff-Appellant Brenda Cook filed her original
Complaint in the Richland County Court of Common Pleas, titled Richland County
Common Pleas Case No. 15-CV-623. Due to delays in discovery and several
continuances of the scheduled trial, the 2015 case was dismissed without prejudice by
way of stipulated entry on April 20, 2017.
{¶5} Appellant re-filed her complaint on April 24, 2017, titled Richland County
Common Pleas Case Number 17-CV-325. This is the case at hand in this appeal.
{¶6} A jury trial was initially scheduled for March 8, 2018, but was continued on
March 6, 2018 in order to allow the Court additional time to rule on the pending motions
for summary judgment filed by all defendants.
{¶7} Appellant had originally named several defendants in her action, but on
April 3, 2018, the trial court granted summary judgment against Appellant in regards to
all of her claims except one, a breach of contract claim relating to alleged damage caused Richland County, Case No. 2019 CA 0021 3
by Appellees to Appellant's driveway. This last remaining claim, the subject of this appeal,
was to move forward to a bench trial, which was set for February 1, 2019.
{¶8} Appellant filed a motion for continuance of the final pretrial scheduled for
January 3, 2019, which was granted.
{¶9} Appellant failed to pay a required jury deposit, and therefore the trial court,
on January 28, 2019, denied Appellant's motion to have the case reset for a jury trial.
{¶10} The case was bumped due to ongoing criminal trials on January 31, 2019,
and a bench trial was rescheduled for February 22, 2019.
{¶11} On February 19, 2019, three days before the scheduled bench trial,
Appellant filed a Motion for Continuance. This Motion contained three Exhibits:
1. Exhibit A: an obituary of Ralph E. Brown.
2. Exhibit B: A letter dated 1/30/19 purportedly authored by Peggy A. Walter, and
addressed to Appellant's counsel (filed under seal).
3. Exhibit C: a letter dated 2/13/19 purportedly authored by Peggy A. Walter and
again addressed to Appellant's counsel (filed under seal).
{¶12} A fourth exhibit was presented at the bench trial, which was labeled as
Exhibit D. (T. at 4). Exhibit D was again filed under seal and is a third letter purportedly
from Peggy A. Walter.
{¶13} The letters all are unsigned and do not appear on any letterhead. (T. at 5).
The letters were not signed under oath, notarized, or otherwise provided as affidavits.
The letters "MA, LPCC" appear after Walter's name on the correspondence, but no facts
in the record exist to establish what degree or profession those alleged degrees or
credentials represent. Richland County, Case No. 2019 CA 0021 4
{¶14} On February 19, 2019, Appellees filed a response objecting to the Motion
stating that the exhibits attached to said motion were unsigned and unverifiable.
{¶15} On February 21, 2019, the trial court filed an Entry denying the motion.
{¶16} On February 22, 2019, a bench trial was held in this matter.
{¶17} At the bench trial, Appellant failed to appear and counsel for Appellant
appeared alone. No witnesses were in attendance. (T. at 3). Counsel argued that
Appellant could not attend "per her medical professionals." (T. at 3). The trial court again
denied Appellant's Motion for a continuance.
{¶18} The trial court gave Appellant's counsel the option to proceed with his case.
Appellant's counsel chose not to call any witnesses or to call Appellees on cross-
examination. (T. at 10). No testimony was presented on behalf of Appellant at the bench
trial.
{¶19} Appellees moved for a directed verdict due to the failure of Appellant to
present any evidence, and the motion was granted. (T. at 13-14).
{¶20} By Judgment Entry filed March 8, 2019, the trial court journalized the denial
of the motion for continuance and the granting of the motion for a directed verdict.
{¶21} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶22} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT'S MOTION FOR CONTINUANCE AND GRANTING APPELLEES A
DIRECTED VERDICT WHEN APPELLANT WAS UNDERGOING A LIFE-
THREATENING EMOTIONAL CRISIS WHICH RENDERED HER UNABLE TO
PARTICIPATE IN THE SCHEDULED TRIAL. Richland County, Case No. 2019 CA 0021 5
{¶23} “II. BY DENYING OF [SIC] APPELLANT'S MOTION FOR CONTINUANCE
AND INSISTENCE ON PROCEEDING IN HER ABSENCE, THE TRIAL COURT
DEPRIVED APPELLANT OF HER RIGHT TO DUE PROCESS OF LAW. [ID.] THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.”
I., II.
{¶24} In her first and second assignments of error, Appellant argues that the trial
court erred in denying her motion for a continuance. We disagree.
{¶25} “The grant or denial of a continuance is a matter which is entrusted to the
broad, sound discretion of the trial judge.” State v. Unger, 67 Ohio St.2d 65, 67, 423
N.E.2d 1078 (1981). Therefore, an appellate court must not reverse a trial court's decision
to deny a motion for continuance unless it finds that the trial court abused its discretion.
Id.; State v. Wheat, 5th Dist. Licking No. 2003–CA–00057, 2004–Ohio–2088, ¶ 16. In
order to find an abuse of discretion, the reviewing court must determine that the trial
court's decision was unreasonable, arbitrary, or unconscionable and not merely an error
of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
{¶26} The reviewing court must balance the interests of judicial economy and
justice against any potential prejudice to the moving party. State v. Scott, 5th Dist. Stark
No. 2001CA0004, 2001 WL 1744125 (Dec. 28, 2001). To constitute a sufficient ground
for a continuance because of the absence of a party, it must appear that: the party's
absence is unavoidable, rather than voluntary; the party's presence at trial is necessary;
the continuance is made in good faith; and, the party will probably be able to attend court Richland County, Case No. 2019 CA 0021 6
at some reasonable future time. State ex rel. Buck v. McCabe, 140 Ohio St. 535, 538,
(1942), citing 17 Corpus Juris Secundum, Continuances, p. 210, § 27. A litigant does not
have a right to unreasonably delay a trial. See Hartt v. Munobe, 67 Ohio St.3d 3, 9, 1993-
Ohio-177.
{¶27} 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. Palmer, 5th Dist. Richland No. 17 CA 13, 2018-Ohio-1266, ¶ 73, appeal not allowed,
153 Ohio St.3d 1442, 2018-Ohio-2834, 102 N.E.3d 500, citing State v. Unger, 67 Ohio
St.2d 65, 67–68, 423 N.E.2d 1078 (1981).
{¶28} In the instant case, Appellant failed to appear for trial. Her written motion for
continuance has already been denied three (3) days prior. While certain documents
purporting to be letters from a therapist by the name of **** Walter were presented to the
trial court in support of the written and oral motions for continuance, no evidence or
testimony was ever presented to the trial court to verify these unsigned letters as
authentic. Further, no credentials were ever provided to establish Walter as a credible
witness or expert.
{¶29} In said letters it was alleged that Appellant was unable to attend the
scheduled trial for various reasons, but no evidence was presented through testimony or Richland County, Case No. 2019 CA 0021 7
otherwise in support. In said letters, Ms. Walter purportedly stated that Appellant's
emotional health did not allow her to attend at that time. However, she was unable to
give the trial court any guarantee that Appellant would ever be able to attend a trial.
Appellant's counsel himself stated that if the case were to be continued to a later date,
"[Appellant] would be in a better position to be here. Obviously no one can guarantee that,
you can't guarantee anyone will be here ... she's not admitted to the hospital." (T. at 7-8).
{¶30} The trial court overruled the Motion for Continuance for a variety of reasons,
including the court's overloaded docket, the fact that there was no guarantee that
Appellant would appear if a continuance was granted, and the fact that the present case
had been pending for almost two years, and in total nearly four years. (T. at 7-8).
{¶31} We find that the trial court did not err in proceeding with the trial because
appellant's absence was not unavoidable, and Appellant did not appear to renew her
motion for a continuance. With respect to due process, we note that, in civil proceedings,
due process requires notice and a meaningful opportunity to be heard. State v. Hayden,
96 Ohio St.3d 211, 2002–Ohio–4169, 773 N.E.2d 502. We find that reasonable notice
and opportunity to be heard were afforded to Appellant under the facts and circumstances
presented, and that the trial court did not err or abuse its discretion in declining to continue
or reset the trial to a later date.
{¶32} Upon consideration of the Unger factors, we do not find the trial court
abused its discretion. See Palmer, supra, at ¶ 75. Richland County, Case No. 2019 CA 0021 8
{¶33} Appellant’s assignments of error are overruled.
{¶34} Accordingly, the judgment of the Court of Common Pleas of Richland
County, Ohio, is affirmed.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
JWW/d 0904