Miller v. FlowersMiller v. Flowers
Rendered on January 28, 2021
On brief: Butler, Cincione & DiCuccio, and N. Gerald DiCuccio, for appellants. Argued: N. Gerald DiCuccio.
On brief: Katz, Pryor & DiCuccio, and Robert K. DiCuccio, co-counsel for appellants.
On brief: Reminger Co., L.P.A., David H. Krause, and Jackie M. Jewell, for appellee. Argued: Melvin J. Davis.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{1} Plaintiffs-appellants, Bonnie Miller and Grant Miller, appeal from the March 18, 2020, Final Judgment Entry issued by the Franklin County Court of Common Pleas wherein the trial court found in favor of defendant-appellee, Stephanie T. Flowers, M.D., following a jury trial and verdict for defendant on March 17, 2020, after the trial court had denied appellants’ emergency motion for a continuance of the trial. For the following reasons, we affirm.
I. Facts and Procedural History
{3} On March 14, 2018, appellants filed the instant case against appellee as a refiling of a case originally filed on May 29, 2015. (Comрl.; Apr. 18, 2018 Transfer Entry.) On the same day as the complaint was filed, the Clerk of Courts issued a case schedule assigning March 11, 2020 as the trial date. (Clerk‘s Original Case Schedule.)
{4} Subsequently, on February 21, 2020, appellants filed their first motion for trial continuance. (Feb. 21, 2020 Mot. for Cont.) In this motion, appеllants sought both a continuance of the trial date and a reopening of discovery for 120 days. (Id. at 2.) In support of their motion, appellants cited to counsel‘s schedule requiring their appearance at a trial on March 3, 2020 in Delaware County and at a trial on March 23, 2020 in Franklin County. Id.1
{5} On February 24, 2020, the trial court denied the first motion for continuance. (Feb. 24, 2020 Journal Entry Denying Mot. to Cont. Trial Date.) In denying the motion, the trial court noted that the lawsuit against appellee was a refiled case that had been pending “for more than three years as two active cases.” Id. at 1. The trial court further noted that the trial assignment for the Delaware County case was not filed as an exhibit as stated in the body of the motion and the court assumed that the Delaware County case was assigned for trial after this casе. Id. Additionally, the trial court observed that witness subpoenas had already been issued; that appellee had presumably cleared her professional schedule; and that defense counsel were prepared to proceed with trial as scheduled. Id. at 2.
{6} Thereafter, on March 10, 2020, appellants filed their Emergency Motion for Continuance of Trial Date (Mar. 10, 2020 Emergency Mot. for Cont.) Although the record is devoid of any written decision denying the motion, we may presume it was denied in the face of the trial having commenced оn March 11, 2020 as originally scheduled.2
{8} This timely appeal followed.
II. Assignment of Error
{9} Appellants assign the following as their sole assignment of errоr for our review:
The trial court erred to the prejudice of plaintiffs in denying their emergency motion for continuance of trial date because the trial court‘s failure to consider circumstances and extraordinary risks presented to all individuals created by the COVID-19 outbreak constitutes an abuse of discretion.
III. Discussion and Legal Analysis
{10} Before addressing appellants’ assignment of error, we must address as a preliminary matter the failure of appellants to file a transcript of the proceedings before the trial court. It is the burden of apрellants to take the steps required to have the transcript prepared for inclusion in the record on appeal and to ensure that the record contains all that is necessary for the reviewing court to determine the appeal. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 19 (1988). When a transcript of proceedings in the trial court is necessary to exemplify the facts which determined the issues presented there, the absence of a transcript requires a reviewing court to either dismiss the appeal or affirm the judgment of the court from which the aрpeal is taken. State v. Render, 43 Ohio St.2d 17 (1975), paragraph two of the syllabus.
{11} Notwithstanding the foregoing, a party may remedy its failure to file a transcript by filing a statement of the evidence with this court pursuant to
{13} In Unger at 67-68, the Supreme Court of Ohio discussed the factors to consider in granting or denying a motion for continuance:
[1] the length of the delay requested; [2] whether other continuances have been requested and received; [3] the inconvenience to litigants, witnesses, opposing counsel and the court; [4] whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; [5] whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and [6] other relevant factors, depending on the unique facts of each case.
{14} In reviewing a trial court‘s decision on a motion for continuance, we ” ‘apply a balancing test, thereby weighing the trial court‘s interest in controlling its own docket, including the efficiеnt dispensation of justice, versus the potential prejudice to the moving party.‘” Foley at ¶ 16, quoting Fiocca, citing Unger at 67. Due to the lack of a transcript, we must presume the trial court considered all relevant factors in reaching its decision to deny appellants’ motion. We further apply this balancing test in our review of the trial court‘s decision, and we address the factors discussed in Unger as follows.
{15} We note that the request did not specifically include a certain amount of time but only asked for a “brief continuance.” (Mar. 10, 2020 Emergency Mot. for Cont. at 3.) Thus, it appears this factоr weighs somewhat in favor of granting the continuance.
{17} Considering the third factor, given that the continuance request was not a joint request, and that appellee and her counsel were prepared to go forward, it seems a last-minute continuance would have inconvenienced appellee, counsel for appellee, the witnesses who had already been issued subpoenas and the jurors, all of whom presumably had rearranged their schedules to appеar for trial. Thus, this factor also weighs heavily against granting the continuance.
{18} Regarding the fourth factor, although the stated reason for the request for continuance was due to the public health emergency based on COVID-19, the record makes clear that this casе was a refiling of a case originally filed in 2015; that appellants’ previous motion for continuance was unequivocally denied by the trial court; and that the emergency motion for trial continuance was filed only one day before trial was scheduled. Thus, this factor weighs against granting the continuance.
{19} As for the fifth factor, obviously appellants were not responsible for causing the public health emergency based on COVID-19. Nevertheless, this does not answer the ultimate question as to whether the request for continuance should have been granted on this basis.
{20} Under the sixth and final category, we are to consider other factors made relevant due to the unique facts of this case. Here, appellants assert that given the March 9, 2020 Executive Order signed by Governor DeWine declaring a state of еmergency in Ohio due to COVID-19 (“Executive Order 2020-01D“), the underlying medical conditions and age of appellant Bonnie Miller3, and that opposing counsel may have been exposed to the coronavirus, a trial continuance was warranted “in order to better ensure the physical safety of Mrs. Miller.” (Mar. 10, 2020 Emergency Mot. for Cont. at 3.)
{22} Furthermore, although appellants argue they were prejudiced by the trial court‘s denial of their motion, they fail to explain how. Appellants assert at page 16 of their brief that “the jurors could not have felt safe during their deliberations” without citing to any support for this contention, and at page 15 they point out that the jury returned its verdict “in approximately 45 minutes.” Presumably, we are meant to infer that the jury didn‘t deliberate long enough because the jurors did not “feel safe,” but there is absolutely no evidenсe in the record that the jury failed to properly consider all the admitted evidence or otherwise violated the oath each juror took. Nor is there any evidence in the record that any of the jurors felt pressured to reach a quick verdict due to the public health situation. Without the benefit of having a trial transcript to review it is impossible for this court to review the evidence admitted at trial, yet it is entirely plausible that the evidence was simply overwhelmingly in favor of appellee. In any event, we will not speculate as to the reason for the length of time for jury deliberations. In the absence of a trial transcript there is simply no evidence in the record of any prejudice resulting to appellants due to any jurors being concerned for their safety.
{23} Finally, we find that the cirсumstances of the trial were entirely consistent with the relevant official government orders that were in place at the time the trial court considered and denied appellants’ motion for trial continuance. First, nothing in Executive Order 2020-01D required courts to continue jury trials. Second, the Franklin County Court
{24} Under all the foregoing circumstances, we cannot find the trial court abused its discretion when it did not continue the jury trial. Therefore, we must find the trial court did not err when it denied appellants’ motion to continue the trial, аnd appellants’ sole assignment of error is overruled.
IV. Disposition
{25} For the foregoing reasons, the trial court did not err in denying appellants’ emergency motion for trial continuance. Having overruled appellants’ sole assignment of error, we affirm the judgment of the Franklin County Cоurt of Common Pleas.
Judgment affirmed.
BROWN and KLATT, JJ., concur.