2015 Ohio 4146
Ohio Ct. App.2015Background
- Dennis Wallace filed verified complaints with Ohio EPA alleging the Penn‑Ohio (now Tervita) landfill discharged contaminated effluent into nearby waterways (2010–2012); Director Nally dismissed the complaints in June 2013 after investigation and sampling.
- Wallace appealed to the Environmental Review Appeals Commission (ERAC), asserting among other things that World Trade Center debris (including human remains) had been dumped at the site and seeking wide production of bills of lading, invoices, and other delivery records.
- A case management schedule set discovery deadlines and a de novo hearing date; Wallace served multiple, largely untimely discovery requests and motions to compel and to enter the landfill for sampling.
- ERAC repeatedly denied Wallace’s motions as untimely, not showing relevancy or efforts to resolve disputes, and found the requested materials were not reasonably calculated to lead to admissible evidence.
- Wallace declared he could not proceed without the discovery; ERAC dismissed his appeal for want of prosecution. Wallace did not challenge the dismissal on appeal but appealed ERAC’s interlocutory discovery rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ERAC abused its discretion in denying motions to compel production of extensive delivery records (bills of lading, invoices) about materials brought to the landfill | Wallace argued the records were required to prove his theory that WTC debris and human remains were dumped at the site and were relevant to his nuisance/contamination claims; ERAC and statutes permit compelling relevant records | Director and Tervita said the records (if they exist) are not in their possession, the requests were untimely, not topical to the appeal, and not reasonably calculated to produce admissible evidence | ERAC did not abuse its discretion: requests were untimely, not shown relevant to the appeal’s scope, and non‑movants cannot produce documents they do not possess; motions properly denied |
| Whether ERAC violated its own discovery rule (O.A.C. 3746‑6‑08) by denying the motions to compel | Wallace contended the rule requires granting a motion to compel once filed and that ERAC must force production | ERAC has discretion under the rule to grant or deny motions; Wallace failed to satisfy procedural requirements (timeliness, memoranda, efforts to resolve) | ERAC acted within its discretion; filing a motion does not mandate its grant and procedural prerequisites were unmet |
| Whether ERAC abused its discretion by denying Wallace permission to enter Tervita’s property for sampling (macroinvertebrate/stream testing) as a discovery method | Wallace said on‑site sampling by his expert was necessary to test seeps/streams and establish contamination | Tervita argued entry for sampling is not an enumerated discovery method under ERAC rules, the request was vague, untimely, lacked relevancy showing or required affidavits, and proper meet‑and‑confer attempts were not made | ERAC did not abuse its discretion: the request was untimely, procedurally deficient, not shown relevant, and entry on land is not an authorized discovery method under ERAC rules |
| Whether interlocutory discovery rulings are reviewable on appeal after dismissal for want of prosecution | Wallace sought review of the discovery rulings merged into final judgment | Defendants emphasized Wallace did not contest the dismissal and that allowing review would reward dilatory tactics; interlocutory rulings may be unreviewable where dismissal for failure to prosecute is at issue | Court treated the discovery issues as effectively moot because Wallace did not contest the dismissal but addressed them on the merits and affirmed ERAC’s discovery rulings |
Key Cases Cited
- Jones v. Hartranft, 78 Ohio St.3d 368 (Ohio 1997) (heightened abuse‑of‑discretion review for dismissal with prejudice for want of prosecution and factors to consider)
- Kimble Clay & Limestone v. McAvoy, 59 Ohio St.2d 94 (Ohio 1979) (appeal venue rules distinguishing permit proceedings from appeals arising from alleged violations)
- Marshall v. Sielaff, 492 F.2d 917 (3d Cir. 1974) (policy against using dismissal for failure to prosecute as a vehicle to obtain premature review of interlocutory rulings)
- Hughley v. Eaton Corp., 572 F.2d 556 (6th Cir. 1978) (interlocutory rulings may become moot when case is dismissed for failure to prosecute)
- AdvantEdge Bus. Group, L.L.C. v. Mestmaker & Assoc., Inc., 552 F.3d 1233 (10th Cir. 2009) (prudential rule allowing rare review of interlocutory orders after dismissal for want of prosecution when appropriate)