State v. BoyerState v. Boyer
DECISION AND JUDGMENT
* * * * *
Paul A. Dobson, Wood County Prosecuting Attorney, and Linda F. Holmes, Assistant Prosecuting Attorney, for appellee.
Arlene Ann Hoffman Boyer, pro se.
* * * * *
OSOWIK, P.J.
{¶ 1} This is an appeal from a judgment of the Bowling Green Municipal Court in which the trial court imposed a $10,000 fine on appellant, Arlene Boyer, after finding that appellant failed to comply with the court‘s order to: (1) convey her property via land contract to her son; and (2) comply with the directive of thе Wood County Health
{¶ 2} “Assignment of Errors:
{¶ 3} “The first assignment of error presented for review: Did the Municipal Court of Wood County of Ohio err in its tender of non-performance of the Wood County Health District Household Sewagе Treatment and Disposal Regulations 612.171 and 612.172 by Appellant * * * [.]
{¶ 4} “The second assignment of error presented for review: Did the Municipal Court of Wood County of Ohio err in its providing Appellant with a list of contractors, through [the] Northwestern Water and Sewer District, and then, promoting the contractor, MAIN AND SONS PLBG, HTG & A/C, INC., to breach its contract with Appellant * * *[.]”
{¶ 5} Appellant is the owner of property located at 22759 Defiance Pike, in the village of Custar, in Wood County, Ohio. On May 27, 2008, a complaint was filed by Jerry Bingham, Registered Sanitarian for the Wood County Board of Health, in which Bingham stated that appellant was in violation of
{¶ 6} Appellant entered a no contest plea on November 3, 2008. In exchange for appellant‘s plea, the state agreed to dismiss all but 100 of the 315 counts pending against her.1 In addition, thе magistrate recommended that appellant transfer her property, via land contract, to her son, and ordered appellant to connect the property to the sewer system by Deсember 1, 2008, or show cause as to why it could not be done by that date. Appellant was ordered to obtain at least two estimates of the cost to complete the sewer hook up, and was provided with a list of local contractors who were certified to perform the work. The magistrate recommended imposing a $10,000 statutory fine,2 to be suspended pending completion of the work within the requirеd time frame. On November 8, 2008, the trial court adopted the magistrate‘s decision, and placed appellant on community control.
{¶ 7} On February 25, 2009, the Wood County Prosecutor, acting on behalf of the Wood County Health Department, filed a motion to revoke appellant‘s community control and impose sentence, in which the prosecutor stated that appellant failed to comply with the triаl court‘s order by December 3, 2008. A hearing date was set for March 23, 2009. Appellant did not appear at the hearing. Although the trial court was prepared to revoke the stay of appellant‘s cоmmunity control and impose the $10,000 fine at that time, the hearing ultimately was postponed until April 13, 2009, because the health
{¶ 8} On April 13, 2009, a hearing was held, at which appellant appeared without an attorney. Appellant testified at the hearing that F. L. Main (“Main“), of Bowling Green, Ohio, agreed to connect her property to the sewer line in exchange for $1,500 on March 23, 2009, and that she gave Main an “International Bill of Exchange” in the amount of $1,500 as payment for the work. However, when Main took the document to the bank, he was told it was not a negotiable instrument. Consequently, Main refused to perform the services, and appellant was therefore unable to cоmply with the trial court‘s order to connect her property to the sewer line.
{¶ 9} The trial court responded to appellant‘s explanation by stating:
{¶ 10} “Well, I am guessing that if [Main] can‘t squeeze cash out оf this documentation that you have given him, then he is not going to bring anybody out to dig holes and connect. It sounds like a lot of complicated paperwork for a relatively * * * simple transaction, that transаction being you hire someone to come over and dig a hole and connect to the pipe that is there.
{¶ 11} “And you either write them a good check, you give them a money order or a cashiеr‘s check, or you give them cash. But, the Court is not going to get into your arrangement with Mr. Main such as paying on an International Bill of Exchange or Bill of Lading or, you know, that kind of stuff. The bank won‘t take it, the bank is not taking it. * * *”
{¶ 12} Appellant told the trial court she had no money other than the funds represented by the International Bill of Exchange, and that she was unable to turn that instrument into cash. The trial court stated that, in order to avoid a court-imposed fine, appellant would have to find a way to pay for the sewer connection. Appellant replied that she did everything she was supposed to do to comply with the trial court‘s ordеr, including paying Main for his services. The trial court disagreed, and ordered appellant to pay the $10,000 fine. On April 23, 2009, appellant petitioned the trial court for a stay of judgment pending appeal, whiсh was denied. On May 11, 2009, appellant filed a notice of appeal.
{¶ 13} In her first assignment of error, appellant asserts that the trial court erred by finding that she did not make a good faith effort to comply with its оrder by tendering an acceptable form of payment to the contractor who agreed to connect her property to the public sewer system. In support, appellant argues that she did, in fact, attempt to perform in accordance with the trial court‘s order; however, her efforts were nullified because the trial court‘s finding both impaired her existing contract to complete the work and deprived her of adequate time to find another contractor. In her second assignment of error, appellant asserts that the trial court erred by providing her with a list of contractors, and then supporting Main‘s decision to not perform the work unless appellant tendered another form of payment. Because appellant‘s two assignments of error are interrelated, we will address them together.
{¶ 14} The Supreme Court of Ohio has held that, pursuant to
{¶ 15} In this case, it is undisputed that appellant did not connect her property to the sewer line within 120 days of the line becoming accessible. The record further reflects that the complaint was filed on May 27, 2008, and appellant entered a no contest plea on November 3, 2008, in which she agreed to connect her proрerty to the sanitary sewer and convey it to her son, in exchange for the dismissal of over 200 separate
{¶ 16} On consideration, we agree with the trial court that: (1) appellant had ample time to connеct her property to the sanitary sewer system and thereby avoid penalties pursuant to
{¶ 17} The judgment of the Bowling Green Municipal Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
C.A. No. WD-09-045
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
JUDGE
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, P.J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.