Ohio Environmental Protection Agency v. LowryOhio Environmental Protection Agency v. Lowry
Rendered on December 30, 2011
Michael DeWine, Attorney General, Adam J. Bennett and Andrew P. Cooke, for appellee.
Jack L. Moser, Jr., for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, P.J.
{¶1} Defendant-appellant, William P. Lowry, appeals from a judgment оf the Franklin County Court of Common Pleas adopting a magistrate‘s decision finding defendant liable to plaintiff-appellee, the Ohio Environmental Protection Agency (“OEPA“), in the amount of $15,855.92 for costs associated with rehabilitating land caused by a fuel oil spill on defendant‘s property. Because the trial court erred in
I. Facts and Procedural History
{¶2} On the night of February 13, 2008, the Jefferson Township Fire Department received a call reporting an odor of fuel oil and a visible “sheen” on a local waterway, Swisher Creek. The department responded to the call and followed the leak back from the creek to a machine shop on defendant‘s property where two 250-gallon fuel oil tanks were being stored behind the building. Jefferson Township Fire Chief Dale S. Ingram was able to ascertain the source of the leak through stains in the snow and observed that the suspect tank was rusted through and completely drained. Ingram contacted defendant and learned the empty tank was filled a few days before with 250 gallons of fuel oil.
{¶3} Because the spill was over 50 gallons, standard operating procedures for the fire department dictаted they contact the OEPA. The OEPA sent a response team to defendant‘s property the next morning. Christopher Bonner, On-Scene Coordinator for the OEPA, was responsible for “assessing the damage from the spill, dealing with the responsible party, and ovеrseeing remedial work.” (Magistrate‘s Decision, 2.) According to the magistrate‘s determination, “Mr. Bonner asked Mr. Lowry to call his insurer to get a contractor to commence the cleanup and told him that if he did not obtain a contractor to do the cleanup, [the OEPA] would do so and bill Mr. Lowry.” (Magistrate‘s Decision, 3.)
{¶4} Bonner waited for Lowry to respond; when he did not, “[the OEPA] called in a contractor,” Environmental Enterprises, Inc. (“EEI“). (Magistrate‘s Decision, 3.) The OEPA submitted to defendant a statement of billing to recover the costs allegedly
{¶5} A magistrate conducted a bench trial on October 12, 2010. According to the magistrate‘s decision, defendant during the trial did not dispute that the оil spill came from the rusted-through fuel oil tank; nor did he challenge that the tank had been refilled only a few days before the spill. Instead, he contended the OEPA and EEI incompetently performed the cleanup work, so the costs charged to him werе unreasonable.
{¶6} On October 27, 2010, the magistrate issued a decision, finding “the credible evidence and the weight of the evidence establish that the cleanup of the spill was reasonable and necessary” and holding defendant liable for $15,855.92, plus prejudgment interest, pursuant to
{¶7} Defendant timely filed objections to the magistrate‘s decision in conformity with
II. Assignments of Error
{¶8} On appeal, defendant assigns four errors:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT MISCONSTRUED ITS APPLICATION AND INTERPRETATION OF O.R.C. § 3745.12, IN ADOPTING THE MAGISTRATE‘S CONCLUSION THAT “ALTHOUGH FEDERAL LAW REQUIRES AS A CONDITION OF RECOVERY PROOF THAT THE MATERIAL RELEASED WAS A HAZARDOUS SUBSTANCE, R.C. 3745.12 IMPOSES NO REQUIREMENT.”
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT MISCONSTRUED ITS APPLICATION OF OHIO RULE OF EVIDENCE 803(6) WHEN IT ADOPTED THE MAGISTRATE‘S FINDING THAT THE TESTIMONY OF STATE ACTOR CHARLES BONNER WAS “SUFFICIENT TO ESTABLISH THE COSTS” OF THE CLEANUP.
THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT MISCONSTRUED ITS APPLICATION OF OHIO RULE OF EVIDENCE 803(8) WHEN IT ADOPTED THE MAGISTRATE‘S FINDING THAT THE TESTIMONY OF STATE ACTOR CHARLES BONNER WAS “SUFFICIENT TO ESTABLISH THE COSTS” OF THE CLEANUP.
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY OVERRULING DEFENDANT‘S OBJECTIONS ON THE BASIS THAT DEFENDANT HAD NOT FILED A TRANSCRIPT OR AN AFFIDAVIT AS TO THE EVIDENCE PRESENTED AT THE HEARING.
III. Fourth Assignment of Error – Objections and Transcript
{¶9} Because defendant‘s fourth assignment of error resolves this appeal, we first address it. Defendant contends the trial court abused its discretion when it overruled his objections because he failed to file a supporting transcript of the proceedings before the magistrate. Defendant points out that the record reflects he submitted the necessary transcript within 30 days of the filing of his objections, as
{¶10} On November 9, 2010, defendant timely filed objections to the magistrate‘s decision; 28 days later, on December 6, the court reporter filed the trial transcript with the clerk of courts, three days after the trial court rendered its decision overruling defendant‘s objections. Although the trial court‘s decision аcknowledged defendant‘s objections “raise[d] multiple objections to the Magistrate‘s factual findings,” it concluded that because “Defendant has not filed a transcript or an affidavit as to the evidence presented at the hearing, the Court is required to accept the Magistrate‘s findings of fact and review only his conclusions of law.” (Decision and Entry, 4-5.)
{¶11}
{¶12} To fulfill its obligation to conduct an independent review when objections contest the magistrаte‘s decision as being contrary to the evidence, “a trial court must review the transcript.” Hill v. Hill (Nov. 16, 2000), 10th Dist. No. 00AP-385; see also Haverdick v. Haverdick, 11th Dist. No. 2010-T-0040, 2010-Ohio-6256, ¶16. If the “objecting party fails to provide the court with a transcript of the magistrate‘s hearing or other relevant material” to support the objectiоns, the “trial court may properly adopt a magistrate‘s factual findings without further consideration.” Lincoln Savings & Loan Assn. v. Damron, 4th Dist. No. 02CA4, 2003-Ohio-2596, ¶23; see also Wade v. Wade (1996), 113 Ohio App.3d 414, 418 (stating that “absent a transcript or appropriate affidavit as provided in the rule, a trial court is limited to an examination of the referee‘s conclusions of law and recommendations, in light of the accompanying findings of fact only unless the trial court elects to hold further hearings“).
{¶13}
{¶14} Addressing the parameters of
{¶15} Similarly, the trial court erred here when it overruled defendant‘s objections before the 30 days allowed under the rule expired, and then adopted the magistrate‘s decision without considering defendant‘s timely filed transcriрt. Haverdick at ¶16-17. By the same decision, defendant was denied “the opportunity afforded by
A. Notice under Civ.R. 53(D)(3)(b)(iii)
{¶16} Although defendant filed the transcript with the court 28 days after filing his objections, he did nоt explicitly give notice to the trial court that he was in the process of procuring a transcript. Many of the pertinent cases regarding
{¶17} Initially, the cases concerning notice are fact-specific, some of which were decided when former
{¶18} The OEPA contends that, where defendant filed his objections prior to the date on which a transcript was prepared, the trial court did not abuse its discretion in overruling his objections without considering the submitted transcript, because defendant “never sought leave in this case to supplement based upon the availability of the transcript of proceedings, either contemporaneous with or after he filed his objections.” (State‘s brief, 11.)
{¶19}
{¶20} Accordingly, we sustain defendant‘s fourth assignment of error and remand this matter to the trial court to rule on defendant‘s properly filed objections to the magistrate‘s findings of fact and, as necessitated by those rulings, to reconsider defendant‘s objections to the magistrate‘s conclusions of law. Further, because the trial court‘s action denied defendant thе opportunity
IV. First, Second, and Third Assignments of Error
{¶21} Given our disposition of defendant‘s fourth assignment of error, his first, second, and third assignments of error are moot.
V. Disposition
{¶22} Having sustained defendant‘s fourth assignment of error, rendering moot his first, second, and third assignments of error, we reverse the judgment of the Franklin County Court of Common Pleas and remand this matter for further proceedings consistent with this decision.
Judgment reversed and cause remanded.
KLATT and TYACK, JJ., concur.
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