State ex rel. DeWine v. Deer Lake Mobile Park, Inc.
2017 Ohio 1509
| Ohio Ct. App. | 2017Background
- Deer Lake Mobile Park (owned by the Malliski Family Trust) operated a public drinking water system and a wastewater treatment plant and repeatedly failed to comply with Ohio EPA requirements under the Safe Drinking Water Act (R.C. Ch. 6109) and the Water Pollution Control Act (R.C. Ch. 6111).
- Ohio EPA repeatedly notified appellants (2010–2012) to chlorinate, monitor, hire a certified operator, and obtain an NPDES permit; appellants did not comply or apply for the permit.
- The state sued in 2011 seeking injunctions and civil penalties; a consent preliminary injunction required chlorination, monitoring, and a certified operator, but appellants violated it and were found in contempt.
- After partial summary judgment on liability, a civil-penalty trial was held in May 2013 (Eugene and Alice dismissed personally; Deer Lake, the Trust, and Mark proceeded). The court found extensive violations (19,000+ drinking-water days; 1,163 surface-water violation days) and awarded a $212,000 civil penalty jointly and severally.
- Appellants appealed; this court affirmed the penalty (Deer Lake II) and the Ohio Supreme Court declined jurisdiction. One year after final judgment, appellants filed a Civ.R. 60(B) motion seeking relief; the trial court denied it and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion in denying Civ.R. 60(B)(1) relief for alleged inability to present inability-to-pay defense due to (a) Eugene & Alice’s chronic incapacity and (b) Mark’s absence/illness at trial | State: appellants’ complaints about continuances, guardianship, and Mark’s lateness were trial errors that could have been raised on appeal; no excusable neglect shown; appellants failed to present operative facts showing inability to pay | Malliskis: health issues and Mark’s illness/lateness prevented presentation of evidence of inability to pay, constituting excusable neglect warranting 60(B)(1) relief | Court: Denied — issues were merits-based and appealable (not grounds for 60(B) relief); no excusable neglect shown; appellants failed to submit operative facts proving a meritorious inability-to-pay defense; record showed substantial assets available to pay penalty |
| Whether Civ.R. 60(B)(2) relief should be granted based on an engineer’s post-trial cost estimate (~$65,000) to comply with an NPDES permit (allegedly newly discovered evidence affecting ability to pay) | State: the post-trial engineer report was created after trial and could have been obtained before trial with due diligence; not newly discovered for 60(B)(2) purposes | Malliskis: the June 2014 engineer’s estimate is new evidence showing additional compliance costs that materially affect ability to pay the penalty | Court: Denied — the report post-dated trial and was not newly discovered (could have been obtained earlier; appellants retained the engineer years earlier); it fails the due-diligence/newly-discovered-evidence standard |
Key Cases Cited
- GTE Automatic Electric v. ARC Industries, 47 Ohio St.2d 146 (1976) (establishes three-part Civ.R. 60(B) test for relief)
- Blasco v. Mislik, 69 Ohio St.2d 684 (1982) (Civ.R. 60(B) not a substitute for appeal; merits challenges must be raised on appeal)
- In re Whitman, 81 Ohio St.3d 239 (1998) (Civ.R. 60(B) balances finality and fairness)
- State ex rel. DeWine v. Deer Lake Mobile Park, Inc., 144 Ohio St.3d 1428 (2015) (Ohio Supreme Court proceedings relevant to appellate posture and prior appeals)