State ex rel. DeWine v. Ashworth, Case No. 11CA16
| Decision Date | 29 November 2012 |
| Docket Number | Case No. 11CA16 |
| Citation | 2012 Ohio 5632 |
| Parties | STATE OF OHIO, ex rel., MICHAEL DEWINE ATTORNEY GENERAL OF OHIO Plaintiff-Appellee, v. DONALD J. ASHWORTH, ET AL., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
DECISION AND
JUDGMENT ENTRY
APPEARANCES:
Randall Lambert, Lambert Law Office, Ironton, Ohio, for appellants.
Michael Dewine, Ohio Attorney General, Robert A. Eubanks, Ohio Assistant Attorney
General, and Julianna F. Bull, Ohio Assistant Attorney General, Columbus, Ohio, for
appellee.
{¶1} The State of Ohio brought this civil action against Donald Ashworth and his company, Grandview Buildings & Supply, Inc. ("Grandview"), alleging they violated statutes and regulations on the disposal of solid waste and construction and demolition debris. Following a bench trial before a magistrate, who retired without issuing a decision, the trial court granted the State leave to amend its complaint to add Dreama Ashworth (Mr. Ashworth's wife) and D.J. Ashworth, Inc. ("D.J.") as defendants. On June 8, 2011, the trial court issued a judgment against the "Defendants" based on its review of the record and awarded the State injunctive relief and civil penalties.
{¶2} On appeal, Mrs. Ashworth and D.J. contend that the trial court erred byissuing the June 8 judgment against them for various reasons. However, on limited remand, the trial court clarified that the judgment the parties appeal from applies only to Mr. Ashworth and Grandview. Because Mrs. Ashworth and D.J. have not had a trial and the claims against them remain pending, their complaints about the June 8 entry are moot. And because the court has not issued a final order as to the claims against Mrs. Ashworth and D.J., we lack jurisdiction to consider their remaining arguments regarding the court's decision to grant the State leave to add them as parties.
{¶3} Mr. Ashworth and Grandview (collectively, the "Appellants") contend that the trial court should have granted them a new trial under Civ.R. 59(A)(1) because of irregularities in the proceedings. They complain that the matter was "reassigned" multiple times after the magistrate's retirement but fail to explain how that alone deprived them of a fair trial. The Appellants also argue that the court did not issue a decision until almost two years after trial ended, but again, they fail to explain how that prejudiced them. Finally, they complain that the trial judge issued a judgment when he did not preside over the trial and did not have a decision from the magistrate who did preside and was in the best position to evaluate witness credibility. However, in matters tried by a magistrate, the trial court always remains the ultimate finder of fact, even on matters of witness credibility. The fact that the trial judge rendered a decision without personally viewing the testimony placed the parties at no greater disadvantage than that faced by all litigants in proceedings before magistrates. Therefore, no irregularity in the proceedings occurred that warranted a new trial.
{¶4} Next, Grandview complains that the court's finding that it permitted unlawful open dumping and operated a solid waste facility without a license on Site 0was against the manifest weight of the evidence. We agree. The evidence shows, and the parties agree, that Grandview was not incorporated until after illegal operations on Site 0 ceased. Therefore, Grandview could not have committed these acts. We decline to address the State's argument, made for the first time on appeal, that Grandview is liable for the violations Mr. Ashworth committed on Site 0 under the theory of reverse piercing of the corporate veil. Thus, we reverse the portion of the court's judgment holding Grandview committed violations on Site 0.
{¶5} Mr. Ashworth contends that the doctrine of res judicata precludes his liability for violations on Site 1 and Site 2. He complains that the State already successfully prosecuted him for, or could have prosecuted him for, the violations on those sites. However, res judicata does not bar the government from bringing a civil action for civil remedies after a successful criminal prosecution based on the same conduct. Therefore, we reject this argument.
{¶6} Next, Mr. Ashworth argues that the court's decision to hold him liable for violations on Site 1 was against the manifest weight of the evidence. Specifically, he complains the court found he and Mrs. Ashworth jointly owned the site when only his wife did. Although we disagree with Mr. Ashworth's contention that the record unequivocally shows his wife owned the site at all times violations occurred, we agree the record is devoid of evidence that the couple ever jointly owned the property. But regardless of who owned the site, the State did not have to prove ownership to establish Mr. Ashworth's liability. Rather, the crux of violation involves improper or unlicensed operation of a site. Therefore, the court's joint ownership error is harmless, and we reject Mr. Ashworth's manifest weight argument.
{¶7} The Appellants also claim the trial court abused its discretion in various ways when it issued a permanent injunction ordering them to remove solid waste and construction and demolition debris from the sites. First, they complain that the court chose this remedy based on a factual finding that was against the manifest weight of the evidence, i.e., the court's implicit finding that solid waste was buried on the sites. However, the court could infer from evidence presented at trial that solid waste was buried there. As trier of fact, the court was free to reject the Appellants' evidence to the contrary. Therefore, the finding that solid waste was buried was not against the manifest weight of the evidence, and the court did not abuse its discretion by relying on this finding to fashion the scope of the injunction.
{¶8} Second, the Appellants complain that they lack the financial resources to comply with the injunction. Because the court did not make any findings of fact about their financial status or the costs of removal, we presume the court found the evidence on these points incredible. As finder of fact, the court was free to reject this evidence. Because the trial court did not have to conclude that it was financially impossible for the Appellants to comply with the waste removal injunction, no abuse of discretion occurred.
{¶9} Third, the Appellants contend that the court abused its discretion because the financial cost and environmental risks of removal greatly exceed any damage to the environment that would occur if the waste remained in place. Because the trial court did not make any findings of fact on these issues, we again presume the court found the Appellants' evidence incredible. Again, as finder of fact, the court was free to reject this evidence. In the absence of credible evidence that the injunction was unnecessary, the court's decision to issue it cannot be unreasonable, arbitrary or unconscionable.
{¶10} Finally, the Appellants complain that the court abused its discretion when it imposed civil penalties that exceed their financial resources and would render them insolvent. But again, the trial court made no factual findings about the Appellants' finances. Therefore, we presume the court found the evidence on this issue incredible, as it was free to do. Moreover, the court's findings on the financial benefit the Appellants obtained from the sites, findings on their indifference to the law, and decision to only impose approximately one percent of the penalty it could have all indicate the court did not act unreasonably, arbitrarily, or unconscionably in fixing the amount of the penalties.
{¶11} The State filed a complaint against Donald Ashworth and Grandview alleging they violated numerous statutes and regulations related to the disposal of solid waste and construction and demolition debris. The State also alleged that the court should pierce the corporate veil and find Mr. Ashworth personally liable for Grandview's violations. The trial court referred the matter to a magistrate. The State filed a motion for leave to amend its complaint to add Mrs. Ashworth and D.J. Ashworth, Inc. ("D.J.") as parties. After denying the motion, the magistrate presided over a bench trial but retired without issuing a decision.
{¶12} Subsequently, the trial court granted the State leave to amend its complaint to add Mrs. Ashworth and D.J. as parties. The court issued an entry bifurcating the claims against them from the claims that were already tried and instructed the clerk of courts to assign a new case number to them. For unknown reasons, the clerk never did so. Subsequently, the court issued an entry stating that itwould review the record and issue a decision about the parties who participated at trial and would address the claims against Mrs. Ashworth and D.J. in later orders.
{¶13} On June 8, 2011, after completing its independent review of the record, the trial court issued a judgment and held:
[I]t is the finding of the Court that the Defendants permitted unlawful open dumping at Sites 0, 1 and 2. The Court further finds that Defendants operated a solid waste facility without a license at Sites 0, 1 and 2. The Court further finds Defendants operated a construction and demolition debris facility without a license at Site 1. The Court further finds the Defendant, Ashworth, operated a construction and demolition debris facility without a license at Site 2. The Court further finds that both Defendants permitted illegal disposal of construction and demolition debris at Sites 1 and 2. The Court further finds that the Defendant, Ashworth, by virtue of his position as President and/or Chief Executive Officer of the Defendant, Grandview * * *, has personal liability for the actions of the corporation, Grandview * * * as it applies to this litigation.
The court granted the State injunctive relief and civil penalties.
{¶14} Subseq...
To continue reading
Request your trial