[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 2
Case Nos. 2022-A-0003 and 2022-A-0013 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
Case Nos. 2022-A-0003 and 2022-A-0013 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 4
Case Nos. 2022-A-0003 and 2022-A-0013 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 5
Case Nos. 2022-A-0003 and 2022-A-0013 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.”
Case Nos. 2022-A-0003 and 2022-A-0013 {¶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.” 7
Case Nos. 2022-A-0003 and 2022-A-0013 {¶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. 8
Case Nos. 2022-A-0003 and 2022-A-0013 {¶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). 9
Case Nos. 2022-A-0003 and 2022-A-0013 {¶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 10
Case Nos. 2022-A-0003 and 2022-A-0013 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.
Case Nos. 2022-A-0003 and 2022-A-0013 {¶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 12
Case Nos. 2022-A-0003 and 2022-A-0013 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 13
Case Nos. 2022-A-0003 and 2022-A-0013 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.
Case Nos. 2022-A-0003 and 2022-A-0013