[Cite as State ex rel. Dewine v. Ashworth,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

STATE OF OHIO, ex rel., : Case No. 11CA16 MICHAEL DEWINE : ATTORNEY GENERAL OF OHIO1 : : Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY : DONALD J. ASHWORTH, ET AL., : RELEASED 11/29/12 : Defendants-Appellants. : ______________________________________________________________________ APPEARANCES:

Randall Lambert, Lambert Law Office, Ironton, Ohio, for appellants.

Michael Dewine, Ohio Attorney General, Robert A. Eubanks, Ohio Assistant Attorney General, and Julianna F. Bull, Ohio Assistant Attorney General, Columbus, Ohio, for appellee. _____________________________________________________________________ Harsha, J.

{¶1} The State of Ohio brought this civil action against Donald Ashworth and

his company, Grandview Buildings & Supply, Inc. (“Grandview”), alleging they violated

statutes and regulations on the disposal of solid waste and construction and demolition

debris. Following a bench trial before a magistrate, who retired without issuing a

decision, the trial court granted the State leave to amend its complaint to add Dreama

Ashworth (Mr. Ashworth’s wife) and D.J. Ashworth, Inc. (“D.J.”) as defendants. On June

8, 2011, the trial court issued a judgment against the “Defendants” based on its review

of the record and awarded the State injunctive relief and civil penalties.

{¶2} On appeal, Mrs. Ashworth and D.J. contend that the trial court erred by

1 Former Attorney General James M. Petro originally served as Relator in this action. Because Michael Dewine is the current Attorney General, we have substituted him as Relator. Lawrence App. No. 11CA16 2

issuing the June 8 judgment against them for various reasons. However, on limited

remand, the trial court clarified that the judgment the parties appeal from applies only to

Mr. Ashworth and Grandview. Because Mrs. Ashworth and D.J. have not had a trial

and the claims against them remain pending, their complaints about the June 8 entry

are moot. And because the court has not issued a final order as to the claims against

Mrs. Ashworth and D.J., we lack jurisdiction to consider their remaining arguments

regarding the court’s decision to grant the State leave to add them as parties.

{¶3} Mr. Ashworth and Grandview (collectively, the “Appellants”) contend that

the trial court should have granted them a new trial under Civ.R. 59(A)(1) because of

irregularities in the proceedings. They complain that the matter was “reassigned”

multiple times after the magistrate’s retirement but fail to explain how that alone

deprived them of a fair trial. The Appellants also argue that the court did not issue a

decision until almost two years after trial ended, but again, they fail to explain how that

prejudiced them. Finally, they complain that the trial judge issued a judgment when he

did not preside over the trial and did not have a decision from the magistrate who did

preside and was in the best position to evaluate witness credibility. However, in matters

tried by a magistrate, the trial court always remains the ultimate finder of fact, even on

matters of witness credibility. The fact that the trial judge rendered a decision without

personally viewing the testimony placed the parties at no greater disadvantage than that

faced by all litigants in proceedings before magistrates. Therefore, no irregularity in the

proceedings occurred that warranted a new trial.

{¶4} Next, Grandview complains that the court’s finding that it permitted

unlawful open dumping and operated a solid waste facility without a license on Site 0 Lawrence App. No. 11CA16 3

was against the manifest weight of the evidence. We agree. The evidence shows, and

the parties agree, that Grandview was not incorporated until after illegal operations on

Site 0 ceased. Therefore, Grandview could not have committed these acts. We decline

to address the State’s argument, made for the first time on appeal, that Grandview is

liable for the violations Mr. Ashworth committed on Site 0 under the theory of reverse

piercing of the corporate veil. Thus, we reverse the portion of the court’s judgment

holding Grandview committed violations on Site 0.

{¶5} Mr. Ashworth contends that the doctrine of res judicata precludes his

liability for violations on Site 1 and Site 2. He complains that the State already

successfully prosecuted him for, or could have prosecuted him for, the violations on

those sites. However, res judicata does not bar the government from bringing a civil

action for civil remedies after a successful criminal prosecution based on the same

conduct. Therefore, we reject this argument.

{¶6} Next, Mr. Ashworth argues that the court’s decision to hold him liable for

violations on Site 1 was against the manifest weight of the evidence. Specifically, he

complains the court found he and Mrs. Ashworth jointly owned the site when only his

wife did. Although we disagree with Mr. Ashworth’s contention that the record

unequivocally shows his wife owned the site at all times violations occurred, we agree

the record is devoid of evidence that the couple ever jointly owned the property. But

regardless of who owned the site, the State did not have to prove ownership to establish

Mr. Ashworth’s liability. Rather, the crux of violation involves improper or unlicensed

operation of a site. Therefore, the court’s joint ownership error is harmless, and we

reject Mr. Ashworth’s manifest weight argument. Lawrence App. No. 11CA16 4

{¶7} The Appellants also claim the trial court abused its discretion in various

ways when it issued a permanent injunction ordering them to remove solid waste and

construction and demolition debris from the sites. First, they complain that the court

chose this remedy based on a factual finding that was against the manifest weight of the

evidence, i.e., the court’s implicit finding that solid waste was buried on the sites.

However, the court could infer from evidence presented at trial that solid waste was

buried there. As trier of fact, the court was free to reject the Appellants’ evidence to the

contrary. Therefore, the finding that solid waste was buried was not against the

manifest weight of the evidence, and the court did not abuse its discretion by relying on

this finding to fashion the scope of the injunction.

{¶8} Second, the Appellants complain that they lack the financial resources to

comply with the injunction. Because the court did not make any findings of fact about

their financial status or the costs of removal, we presume the court found the evidence

on these points incredible. As finder of fact, the court was free to reject this evidence.

Because the trial court did not have to conclude that it was financially impossible for the

Appellants to comply with the waste removal injunction, no abuse of discretion occurred.

{¶9} Third, the Appellants contend that the court abused its discretion because

the financial cost and environmental risks of removal greatly exceed any damage to the

environment that would occur if the waste remained in place. Because the trial court did

not make any findings of fact on these issues, we again presume the court found the

Appellants’ evidence incredible. Again, as finder of fact, the court was free to reject this

evidence. In the absence of credible evidence that the injunction was unnecessary, the

court’s decision to issue it cannot be unreasonable, arbitrary or unconscionable. Lawrence App. No. 11CA16 5

{¶10} Finally, the Appellants complain that the court abused its discretion when

it imposed civil penalties that exceed their financial resources and would render them

insolvent. But again, the trial court made no factual findings about the Appellants’

finances. Therefore, we presume the court found the evidence on this issue incredible,

as it was free to do. Moreover, the court’s findings on the financial benefit the

Appellants obtained from the sites, findings on their indifference to the law, and decision

to only impose approximately one percent of the penalty it could have all indicate the

court did not act unreasonably, arbitrarily, or unconscionably in fixing the amount of the

penalties.

I. Facts

{¶11} The State filed a complaint against Donald Ashworth and Grandview

alleging they violated numerous statutes and regulations related to the disposal of solid

waste and construction and demolition debris. The State also alleged that the court

should pierce the corporate veil and find Mr. Ashworth personally liable for Grandview’s

violations. The trial court referred the matter to a magistrate. The State filed a motion

for leave to amend its complaint to add Mrs. Ashworth and D.J. Ashworth, Inc. (“D.J.”)

as parties. After denying the motion, the magistrate presided over a bench trial but

retired without issuing a decision.

{¶12} Subsequently, the trial court granted the State leave to amend its

complaint to add Mrs. Ashworth and D.J. as parties. The court issued an entry

bifurcating the claims against them from the claims that were already tried and

instructed the clerk of courts to assign a new case number to them. For unknown

reasons, the clerk never did so. Subsequently, the court issued an entry stating that it Lawrence App. No. 11CA16 6

would review the record and issue a decision about the parties who participated at trial

and would address the claims against Mrs. Ashworth and D.J. in later orders.

{¶13} On June 8, 2011, after completing its independent review of the record,

the trial court issued a judgment and held:

[I]t is the finding of the Court that the Defendants permitted unlawful open dumping at Sites 0, 1 and 2. The Court further finds that Defendants operated a solid waste facility without a license at Sites 0, 1 and 2. The Court further finds Defendants operated a construction and demolition debris facility without a license at Site 1. The Court further finds the Defendant, Ashworth, operated a construction and demolition debris facility without a license at Site 2. The Court further finds that both Defendants permitted illegal disposal of construction and demolition debris at Sites 1 and 2. The Court further finds that the Defendant, Ashworth, by virtue of his position as President and/or Chief Executive Officer of the Defendant, Grandview * * *, has personal liability for the actions of the corporation, Grandview * * * as it applies to this litigation.

The court granted the State injunctive relief and civil penalties.

{¶14} Subsequently, the defendants filed a motion for a new trial, which the trial

court denied. This appeal followed.

II. Assignments of Error

{¶15} The Ashworths, Grandview, and D.J. assign the following errors for our

review:

I. THE TRIAL COURT ERRED DUE TO THE IRREGULARITY IN THE PROCEEDINGS OF THE COURT.

II. THE TRIAL COURT ERRED BY GRANTING THE AMENDED COMPLAINT TO JOIN APPELLANTS DREAMA ASHWORTH AND D.J. ASHWORTH, INC., AFTER THE TRIAL.

III: THE TRIAL COURT ERRED BY PERMITTING DREAMA ASHWORTH AND D.J. ASHWORTH, INC., TO BE ADDED AS PARTIES TO THE CASE BECAUSE IT VIOLATED THE STATUTE OF LIMITATIONS.

IV: THE TRIAL COURT ERRED IN FINDING APPELLANT Lawrence App. No. 11CA16 7

GRANDVIEW BUILDINGS LIABLE FOR THE UNLAWFUL DISPOSAL AT SITE 0 BECAUSE THE CORPORATION WAS NOT CREATED UNTIL AFTER CESSATION OF DISPOSAL AT THAT SITE.

V: THE TRIAL COURT ERRED IN FINDING APPELLANT DONALD ASHWORTH LIABLE FOR SITE 1, WHEN THAT SITE IS OWNED SOLELY BY HIS WIFE, APPELLANT DREAMA ASHWORTH.

VI: THE TRIAL COURT ERRED BY ISSUING AN INJUNCTION REQUIRING REMOVAL OF THE WASTE BECAUSE THE APPELLEE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE MATERIAL WAS BURIED UNLAWFULLY.

VII: THE TRIAL COURT ERRED BY IMPOSING A CIVIL PENALTY THAT EXCEEDS THE APPELLANTS’ FINANCIAL RESOURCES AND MAKES THEM INSOLVENT.

VIII: THE TRIAL COURT ERRED IN ISSUING A MANDATORY INJUNCTION THAT THE APPELLANTS CANNOT IMPLEMENT DUE TO LACK OF FINANCIAL RESOURCES.

IX: THE TRIAL COURT ERRED IN ISSUING AN INJUNCTION REQUIRING REMOVAL OF THE WASTE, WHERE THE COST OF REMOVING THE WASTE GREATLY EXCEEDS ANY ENVIRONMENTAL HARM CAUSED BY LEAVING THE WASTE IN PLACE.

X: THE TRIAL COURT ERRED BECAUSE THE EARLIER CRIMINAL CASE AGAINST APPELLANT DONALD ASHWORTH BARS A PORTION OF THIS ACTION UNDER THE DOCTRINE OF RES JUDICATA.

III. Arguments of Mrs. Ashworth and D.J.

{¶16} In the first assignment of error, Mrs. Ashworth and D.J. contend in part

that the trial court should have sua sponte granted them a “new trial” under Civ.R.

59(A)(1) due to irregularity in the proceedings. They complain that the court ruled on

the claims against them in its June 8 entry even though they never had a trial. They

base this argument on the fact that the court’s order to bifurcate and assign a new case

number to the claims against them was never executed. Therefore, when the court Lawrence App. No. 11CA16 8

issued its June 8 entry, which repeatedly refers simply to the “Defendants,” they were

still defendants in this matter and are thus bound by the judgment. Although all of the

defendants subsequently filed a joint motion for a new trial, Mrs. Ashworth and D.J.

failed to make this argument in the motion.

{¶17} After oral argument we remanded the matter to the trial court for the

limited purpose of deciding a Civ.R. 60(A) motion. The trial court issued an amended

entry specifying that the “Defendants” referenced in the June 8 entry were Mr. Ashworth

and Grandview. In other words, the claims against Mrs. Ashworth and D.J. are still

pending. Because Mrs. Ashworth and D.J. have yet to have a trial, the trial court

obviously could not sua sponte grant them a “new trial.” Therefore, this portion of the

first assignment of error is moot.

{¶18} In the remainder of the first assignment of error, and in the sixth, seventh,

eighth, and ninth assignments of error, Mrs. Ashworth and D.J. join Mr. Ashworth and

Grandview in making various other complaints about the trial court’s June 8 entry. But

as discussed above, the trial court clarified that this entry did not decide the claims

against Mrs. Ashworth and D.J. Therefore, these assignments of error are moot as to

them. It appears that within the fifth assignment of error, Mrs. Ashworth complains that

the trial court made a factual finding in the June 8 entry that she and her husband jointly

owned Site 1 when they did not. But again, this entry did not decide the claims against

Mrs. Ashworth and D.J., i.e., the factual finding applied to claims against Mr. Ashworth

and Grandview only. Therefore, the fifth assignment of error is moot to the extent Mrs.

Ashworth makes this argument.

{¶19} In the second and third assignments of error, Mrs. Ashworth and D.J. Lawrence App. No. 11CA16 9

complain that the trial court erred when it granted the State leave to amend the

complaint to add them as parties because the trial with the magistrate had ended and

the court’s decision “violated the statute of limitations.”2 However, the trial court’s ruling

does not fit within any of the categories of final orders under R.C. 2505.02. See the

discussion below in Section IV. on the requirements for appellate jurisdiction. And

because the record contains no final order as to the claims against Mrs. Ashworth and

D.J., the court’s ruling on the motion for leave to amend remains interlocutory, i.e., it has

not merged into a final judgment. Therefore, we lack jurisdiction to consider the second

and third assignments of error and dismiss this portion of the appeal.

IV. Arguments of Mr. Ashworth and Grandview

{¶20} Although none of the parties raise the issue, before we address the claims

of Mr. Ashworth and Grandview we must decide whether we have jurisdiction to do so in

light of our determination that the claims against Mrs. Ashworth and D.J. remain

pending. Appellate courts “have such jurisdiction as may be provided by law to review

and affirm, modify, or reverse judgments or final orders of the courts of record inferior to

the court of appeals within the district[.]” Ohio Constitution, Article IV, Section 3(B)(2);

see R.C. 2505.03(A). If a court’s order is not final and appealable, we have no

jurisdiction to review the matter and must dismiss the appeal. Eddie v. Saunders, 4th

Dist. No. 07CA7,

. In the event that the parties do not raise the

jurisdictional issue, we must raise it sua sponte. Sexton v. Conley, 4th Dist. No.

99CA2655,

, *2 (Aug. 7, 2000).

2 In the Reply Brief, Grandview added an argument to the third assignment of error. Grandview claims that the trial court also erred because it allowed the State to amend the complaint to add a claim against Grandview for operating a construction and demolition debris facility on Site 2 without a license. Because an appellant cannot raise a new argument in a reply brief, we do not consider this contention. American Fiber Systems, Inc. v. Levin,

,

,

. Lawrence App. No. 11CA16 10

{¶21} An order must meet the requirements of both R.C. 2505.02 and Civ.R.

54(B), if applicable, to constitute a final, appealable order. Chef Italiano Corp. v. Kent

State Univ.,

,

(1989). Under R.C. 2505.02(B)(1), an

order is a final order if it “affects a substantial right in an action that in effect determines

the action and prevents a judgment[.]” To determine the action and prevent a judgment

for the party appealing, the order “must dispose of the whole merits of the cause or

some separate and distinct branch thereof and leave nothing for the determination of

the court.” Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v. Professionals

Guild of Ohio,

,

(1989).

{¶22} Additionally, if the case involves multiple parties or multiple claims, the

court’s order must meet the requirements of Civ.R. 54(B) to qualify as a final,

appealable order. Under Civ.R. 54(B), “[w]hen more than one claim for relief is

presented in an action * * * or when multiple parties are involved, the court may enter

final judgment as to one or more but fewer than all of the claims or parties only upon an

express determination that there is no just reason for delay.” Generally absent the

mandatory language that “there is no just reason for delay,” an order that does not

dispose of all claims is subject to modification and is not final and appealable. Noble v.

Colwell,

,

(1989); see Civ.R. 54(B).

{¶23} Here, the case obviously involves multiple parties and claims. The trial

court resolved the claims against Mr. Ashworth and Grandview in the June 8 entry but

not the claims against Mrs. Ashworth and D.J. In the June 8 entry, the trial court states

there is “no reasonable cause for delay.” Although this language does not exactly

match that of Civ.R. 54(B), it is nearly identical to the required language. Moreover, it is Lawrence App. No. 11CA16 11

apparent that the court intended its ruling on the claims against Mr. Ashworth and

Grandview to be final based on its express characterization of the entry as a “Final

Appealable Order.” Given the court’s substantial compliance with Civ.R. 54(B) and

clear intent to enter a final order, we conclude the court entered a final order as to Mr.

Ashworth and Grandview. See Knickel v. City of Marion, 3d Dist. No. 9-2000-75,

, *2 (Jan. 17, 2001). To hold otherwise would thwart judicial economy. See

{¶24} We also note that after the court issued its judgment against Mr. Ashworth

and Grandview, they timely filed a Civ.R. 52 motion for findings of fact and conclusions

of law. They filed their notice of appeal before the court ruled on the motion. We

recognize that “[g]enerally, when a properly filed request for findings of fact and

conclusions of law is filed, no final appealable order exists until the court complies with

Civ.R. 52, i.e.[,] issues findings of fact and conclusions of law.” Savage v. Cody-Ziegler,

Inc., 4th Dist. No. 06CA5,

. However, the June 8 judgment entry

already contained separately stated findings of fact and conclusions of law, even though

the court did not specifically designate them as such. In other words, the court did not

issue a general judgment. The court’s judgment, together with the record, provides us

more than an adequate basis to review this matter and decide this appeal. Therefore,

we conclude that the court’s failure to explicitly deny the motion does not prevent the

June 8 entry from constituting a final, appealable order. See Positron Energy

Resources, Inc. v. Weckbacher, 4th Dist. No. 07CA59,

(holding that judgment was a final order despite trial court’s failure to rule on Civ.R. 52

motion because prior to issuing the judgment, the court issued a detailed opinion which, Lawrence App. No. 11CA16 12

together with the record, provided an adequate basis for appellate review).

{¶25} Therefore, we will address the remainder of the assignments of error

raised by Mr. Ashworth and Grandview (collectively, the “Appellants”).

V. Motion for a New Trial

{¶26} In the remainder of the first assignment of error, the Appellants contend

that the trial court should have granted them a new trial under Civ.R. 59(A)(1) based on

irregularity in the proceedings. Civ.R. 59(A)(1) provides: “A new trial may be granted to

all or any of the parties and on all or part of the issues upon any of the following

grounds: (1) Irregularity in the proceedings of the court, jury, magistrate, or prevailing

party, or any order of the court or magistrate, or abuse of discretion, by which an

aggrieved party was prevented from having a fair trial[.]” “In the context of a motion for

new trial, an ‘irregularity’ is a departure from the due, orderly, and established mode of

proceeding, whereby a party, through no fault of his own, is deprived of some right or

benefit otherwise available to him.” Gill v. Grafton Corr. Inst., 10th Dist. No. 10AP-1094,

, ¶ 34. “The rule preserves the integrity of the judicial system when the

presence of serious irregularities in a proceeding could have a material adverse effect

on the character of and public confidence in judicial proceedings.” Wright v. Suzuki

Motor Corp., 4th Dist. Nos. 03CA2-03CA4,

.

{¶27} The decision to grant or deny a motion for a new trial under Civ.R.

59(A)(1) rests within the trial court’s discretion, and an appellate court will not reverse

that decision absent an abuse of that discretion. See Lewis v. Nease, 4th Dist. No.

05CA3025,

. The phrase “abuse of discretion” connotes an

attitude on the part of the court that is unreasonable, unconscionable, or arbitrary. State Lawrence App. No. 11CA16 13

v. Adams,

,

(1980). When applying an abuse of

discretion standard, we are not free to merely substitute our judgment for that of the trial

court. In re Jane Doe 1,

,

(1991).

{¶28} However, as we explain below, the Appellants only raised two of the three

arguments they make on appeal in their motion for a new trial. Therefore, they have

forfeited all but plain error with regard to the argument they failed to raise at the trial

level. “In appeals of civil cases, the plain error doctrine is not favored and may be

applied only in the extremely rare case involving exceptional circumstances where error,

to which no objection was made at the trial court, seriously affects the basic fairness,

integrity, or public reputation of the judicial process, thereby challenging the legitimacy

of the underlying judicial process itself.” Goldfuss v. Davidson,

,

(1997), syllabus.

{¶29} First, the Appellants complain that the proceedings in this case were

irregular because the case was “reassigned” three times after the magistrate’s

retirement, which “resulted in the denial of a fair trial for the Appellants.” (Appellants’ Br.

12). Although the Appellants mentioned the fact that the case changed hands at

various times in their motion for a new trial, they did not make the specific argument that

reassignment alone constituted an irregularity in the proceedings. Therefore, we review

this argument for plain error only.

{¶30} Contrary to the Appellants’ argument, it does not appear that the case was

actually “reassigned” three times. Instead, it appears that Judge Cooper has always

been assigned to the case. He referred the matter to the magistrate, who conducted a

bench trial. Once the magistrate retired, Judge Cooper issued an order purportedly Lawrence App. No. 11CA16 14

assigning the case to retired Judge Walton. However, it does not appear that Judge

Walton ever took any action in the matter. Instead, Judge Cooper continued to handle

the case. Even if the case had been “reassigned” three times, the Appellants fail to

explain how that fact alone deprived them of a fair trial. Therefore, we find no error, let

alone plain error, and reject this argument.

{¶31} The Appellants also complain that Judge Cooper did not issue a decision

for almost two years after the last trial date. However, they fail to explain how this

passage of time deprived them of a fair trial and cite no authority for the proposition that

such a delay constitutes an irregularity in the proceedings sufficient to warrant a new

trial. Therefore, the trial court did not abuse its discretion in denying the motion for a

new trial on this basis.

{¶32} Finally, the Appellants complain that Judge Cooper issued a judgment

when he did not preside over the trial and did not have a decision from the magistrate

who did preside and was in the best position to evaluate witness credibility. In the June

8 judgment entry, Judge Cooper indicated that he could perform the duties of trial judge

under Civ.R. 63(B).3 However, Civ.R. 63(B) provides: “If for any reason the judge

before whom an action has been tried is unable to perform the duties to be performed

by the court after a verdict is returned or findings of fact and conclusions of law are filed,

another judge designated by the administrative judge * * * may perform those duties; but

if such other judge is satisfied that he cannot perform those duties, he may in his

discretion grant a new trial.” However, the magistrate retired without rendering a verdict

or making findings of fact and conclusions of law. In addition, Civ.R. 63(B) specifically

3 In the entry, the court actually cites Civ.R. 60(B). However, this appears to be a typographical error given the court’s citation to Civ.R. 63(B) in a prior entry and the content of the rules. Lawrence App. No. 11CA16 15

applies to judges, not magistrates. In re Gau, 2d Dist. No. 18630,

, *3

(May 18, 2001), citing Hartt v. Munobe,

,

(1993).

Therefore, the rule has no application in this case.

{¶33} A trial court has discretion to remove a magistrate from a referred matter.

See Civ.R. 53(D)(6). However, the Civil Rules do not specifically provide any procedure

for courts of record to follow when a magistrate cannot complete his duties, particularly

the duty to issue a magistrate’s decision. To determine whether the trial court’s actions

in this case were so irregular as to warrant a new trial, we consider the relationship

between trial courts and magistrates.

{¶34} Civ.R. 53(D)(1)(a) provides: “A court of record may, for one or more of the

purposes described in Civ. R. 53(C)(1), refer a particular case or matter or a category of

cases or matters to a magistrate by a specific or general order of reference or by rule.”

Under Civ.R. 53(C)(1)(b), “[t]o assist courts of record and pursuant to reference under

Civ. R. 53(D)(1), magistrates are authorized, subject to the terms of the relevant

reference, to * * * [c]onduct the trial of any case that will not be tried to a jury[.]”

(Emphasis added.) The Staff Note to the July 1, 2006 Amendment, quoting

,

explains that Civ.R. 53(C) “reflects the admonition of the Supreme Court that ‘a

[magistrate’s] oversight of an issue or issues, or even an entire trial, is not a substitute

for the judicial functions but only an aid to them.’ ” (Emphasis sic.)

{¶35} “Subject to the terms of the relevant reference, a magistrate shall prepare

a magistrate’s decision respecting any matter referred under Civ.R. 53(D)(1).” Civ.R.

53(D)(3)(a)(i). However, “[a] magistrate’s decision is not effective unless adopted by the

court.” Civ.R. 53(D)(4)(a). “If one or more objections to a magistrate’s decision are Lawrence App. No. 11CA16 16

timely filed, the court shall rule on those objections. In ruling on objections, the court

shall undertake an independent review as to the objected matters to ascertain that the

magistrate has properly determined the factual issues and appropriately applied the law.

Before so ruling, the court may hear additional evidence but may refuse to do so unless

the objecting party demonstrates that the party could not, with reasonable diligence,

have produced that evidence for consideration by the magistrate.” Civ.R. 53(D)(4)(d). If

the parties do not file timely objections, “the court may adopt a magistrate’s decision,

unless it determines that there is an error of law or other defect evident on the face of

the magistrate’s decision.” (Emphasis added.) Civ.R. 53(D)(4)(c). Regardless of

whether objections are timely filed, “a court may adopt or reject a magistrate’s decision

in whole or in part, with or without modification. A court may hear a previously-referred

matter, take additional evidence, or return a matter to a magistrate.” (Emphasis added.)

Civ.R. 53(D)(4)(b).

{¶36} As the Supreme Court explained in

at 5-6:

Civ.R. 53 places upon the court the ultimate authority and responsibility over the [magistrate’s] findings and rulings. The court must undertake an independent review of the [magistrate’s] report to determine any errors. * * * The findings of fact, conclusions of law, and other rulings of a [magistrate] before and during trial are all subject to the independent review of the trial judge. * * * A trial judge who fails to undertake a thorough independent review of the [magistrate’s] report violates the letter and spirit of Civ.R. 53, and we caution against the practice of adopting [magistrate’s] reports as a matter of course, especially where a [magistrate] has presided over an entire trial. (Emphasis sic.)

Although Hartt involved a prior version of Crim.R. 53, the relationship between trial

courts and magistrates has not changed with subsequent amendments to the rule. See

generally In re F.M.B., 4th Dist. No. 10CA28,

(applying Hartt’s

discussion of this relationship to an amended version of the rule). Lawrence App. No. 11CA16 17

{¶37} The trial court may afford some deference to a magistrate’s credibility

determinations, but the court remains the ultimate finder of fact, even on matters of

credibility. See Mackenbach v. Mackenbach, 3rd Dist. No. 6-11-03,

(“While a trial court is required to independently review the record and make its own

factual and legal findings, the trial court may rely upon the magistrate’s credibility

determinations * * *.”); In re A.M., 2nd Dist. No. 2009-CA-66,

, ¶ 13,

quoting First Natl. Bank of Southwestern Ohio v. Individual Business Servs., Inc., 2nd

Dist. No. 22435,

(“[W]hen considering objections to a

magistrate’s recommendation, a trial court must conduct an independent review.

Among other things, this means that ‘[the] trial court need not defer to [the] magistrate’s

determinations regarding witness credibility.’ ” (Citation omitted.)); Sweeney v.

Sweeney, 10th Dist. No. 06AP-251,

(holding that trial court did

not have to defer to magistrate’s credibility determinations because “[a]lthough the trial

court may appropriately give weight to the magistrate’s assessment of witness credibility

in view of the magistrate’s firsthand exposure to the evidence, the trial court must still

independently assess the evidence and reach its own conclusions.”) This is the case

despite the fact that “ ‘[t]he trial court, when considering a [magistrate’s] report, may

have little, if any, greater advantage in determining the credibility of the witnesses than

this court would upon review of the trial court’s decision. The trial court, like a reviewing

court, is limited to reviewing witnesses’ testimony in the form of a written transcript, and

lacks the advantage of physically viewing the witnesses in order to aid in determining

truthfulness.’ ” Lang v. Lang, 10th Dist. No. 02AP-1235,

, ¶ 7, quoting

DeSantis v. Soller,

,

(10th Dist. 1990). Lawrence App. No. 11CA16 18

{¶38} A magistrate is an arm of the court, not a separate judicial entity with

independent judicial authority and duties. See by way of contrast to separate judicial

roles held by trial courts and courts of appeal in the context of summary judgment as

noted by the Supreme Court of Ohio in Murphy v. Reynoldsburg,

,

(1992). Given the relationship between trial courts and magistrates, we

see no reason why the trial court could not review the trial transcript and render a

judgment in this case without a magistrate’s decision. Even if the magistrate had issued

a decision, the trial court would have remained the ultimate trier of fact and could have

rejected any of the magistrate’s credibility determinations. The fact that the trial court

rendered a decision without personally viewing the testimony placed the parties at no

greater disadvantage than that faced by all litigants in proceedings before magistrates.

Therefore, we conclude that the trial court’s actions did not constitute an irregularity in

the proceedings that prevented the Appellants from having a fair trial. Thus, the court

did not abuse its discretion when it denied the motion for a new trial on this basis. We

overrule this portion of the first assignment of error.

VI. Grandview’s Liability for Site 0

{¶39} In the fourth assignment of error, Grandview contends that the trial court’s

determination that it was “liable for unlawful disposal at Site 0” is against the manifest

weight of the evidence because the corporation was not created until after the cessation

of disposal at that site. (Appellants’ Br. 15). As the Supreme Court recently stated:

Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a Lawrence App. No. 11CA16 19

question of mathematics, but depends on its effect in inducing belief.” (Emphasis sic.) Eastley v. Volkman,

, 2012-Ohio- 2179,

, ¶ 12, quoting State v. Thompkins,

,

(1997).

When conducting a manifest weight review:

“The [reviewing] court * * * weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.” Id. at ¶ 20, quoting Tewarson v. Simon,

,

(9th Dist. 2001).

{¶40} In weighing the evidence, the court of appeals must remain mindful of the

presumption in favor of the finder of fact:

“[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. * * *

If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.” Id. at ¶ 21, quoting Seasons Coal Co. v. Cleveland,

,

(1984), fn. 3.

Moreover, “[w]hen a trial judge, rather than a jury, has acted as the factfinder in a civil

case, * * * App.R. 12(C) provides that two of the three appellate judges may reverse the

judgment based on the manifest weight of the evidence, but that a judgment may be

reversed only once for this reason. (Footnote omitted.) Id. at ¶ 7.

{¶41} The trial court held that Grandview “permitted unlawful open dumping” at

Site 0, a violation of Ohio Adm.Code 3745-27-05(C), which provides:

No person shall conduct, permit, or allow open dumping. In the event that open dumping is occurring or has occurred at a property, the person(s) responsible for the open dumping, the owner of the property, or the person(s) who allow or allowed open dumping to occur, shall promptly remove and dispose or otherwise manage the solid waste in accordance Lawrence App. No. 11CA16 20

with Chapter 3734. of the Revised Code, and shall submit verification that the solid waste has been properly managed. 4

The trial court also held that Grandview operated a solid waste facility without a license

at Site 0, a violation of R.C. 3734.05(A)(1), which provides that “no person shall operate

or maintain a solid waste facility without a license * * *.”5 A corporation is a “person”

within the meaning of these provisions. Ohio Adm.Code 3745-27-01(P)(3); R.C.

3734.01(G); R.C. 1.59(C).

{¶42} Grandview disputes these holdings. The company argues that disposal of

waste on Site 0 ceased in 1993. Grandview contends that it was not incorporated, and

thus did not exist until 1996, so it could not have operated a solid waste facility or

permitted unlawful open dumping on Site 0. The State implicitly concedes that

Grandview’s argument is correct. However, the State claims that Grandview is liable for

Mr. Ashworth’s actions with regard to Site 0 as his “alter ego.”

{¶43} First, we address Grandview’s liability for its own actions with regard to

Site 0. The trial court found that Mr. Ashworth operated an open dump at Site 0 from

the late 1980’s until sometime in 1993 and that he paid Grandview employees to

monitor the disposal of solid waste at the site. The employees collected fees from

people who disposed of waste, and the employees covered the deposited waste with

soil. The court found Grandview liable based on this conduct.

4 The State also alleged that Grandview violated R.C. 3734.03, which states: “No person shall dispose of solid wastes by open burning or open dumping * * *.” The trial court evidently held that Grandview did not violate this provision because its conclusion that the company “permitted unlawful open dumping” tracks the language of Ohio Adm.Code 3745-27-05(C) and not the statutory language. 5 The State also alleged that Grandview violated Ohio Adm.Code 3745-37-01(A), which provides: “No person shall conduct municipal solid waste landfill, industrial solid waste landfill, residual solid waste landfill, compost facility, transfer facility, infectious waste treatment facility, or solid waste incineration facility operations without possessing a separate, valid license for each such operation, as required by Chapter 3734. of the Revised Code * * *.” The court apparently held that Grandview did not violate this provision because the court’s conclusion that the company “operated a solid waste facility without a license” tracks the language of R.C. 3734.05(A)(1), not the language of the regulation. Lawrence App. No. 11CA16 21

{¶44} The court’s decision implies that it found Grandview was incorporated

prior to 1993. Such a finding is unsupported by the evidence. Grandview offered

uncontroverted evidence that it was not incorporated until 1996, and the State implicitly

concedes that fact. It appears that prior to 1996, Mr. Ashworth may have done

business under the name “Grandview Buildings and Supply,” causing the court’s

confusion. Because the trial court made no findings that Grandview committed any

violations on Site 0 after its incorporation, the trial court’s holding that Grandview

permitted open dumping and operated a solid waste facility on the site was against the

manifest weight of the evidence.

{¶45} Next, we address the State’s argument that Grandview is liable for Mr.

Ashworth’s actions with regard to Site 0 as his “alter ego,” i.e., we should apply the

theory of reverse piercing of the corporate veil. “A corporation is a distinct legal entity,

separate and apart from the natural individuals who formed it.” Nu-Trend Homes, Inc. v.

Law Offices of DeLibera, Lyons & Bibbo, 10th Dist. No. 01AP-1137,

, ¶

38. “Normally piercing the corporate veil works to hold owners of a corporation

personally liable for corporate debts * * * based upon the premise that a corporation that

is the mere alter ego of an affiliate or is established for the sole purpose of

circumventing the law will not be recognized as an independent entity.”

“Reverse

piercing is a theory by which a party seeks to hold a corporate entity liable upon the

personal obligation of a shareholder or principal.”

{¶46} Even if we agreed with the State’s position that reverse corporate veil

piercing can occur in Ohio, the State never made this argument at the trial level. See

Mathias v. Rosser, 10th Dist. Nos. 01AP-768 & 01AP-770,

, ¶ 35 Lawrence App. No. 11CA16 22

(discussing the lack of Ohio authority on reverse piercing). Instead, in its complaint the

State argued that traditional corporate veil piercing should occur, i.e., Mr. Ashworth was

personally liable for any remedy the court awarded the State for Grandview’s violations.

The trial court agreed and held that Mr. Ashworth, “by virtue of his position as President

and/or Chief Executive Officer of * * * Grandview * * * has personal liability for the

actions of the corporation * * * as it applies to this litigation.” We will not entertain the

State’s reverse piercing argument for the first time on appeal. See Harris v. Levy, 10th

Dist. No. 11AP-301,

, ¶ 15, quoting Giffin v. Cohen, 10th Dist. No. 11AP–

360,

, ¶ 28 (“ ‘[A] party cannot raise new issues or legal theories for the

first time on appeal.’ ”). Accordingly, we sustain the fourth assignment of error and

reverse the trial court’s judgment with regard to Grandview’s liability for Site 0.

VII. Res Judicata and the Claims Against Mr. Ashworth

{¶47} In the tenth assignment of error, Mr. Ashworth contends that certain

claims against him are barred by the doctrine of res judicata. “The applicability of res

judicata is a question of law that is subject to de novo review.” Althof v. State, 4th Dist.

No. 04CA16,

. The Supreme Court of Ohio has “expressly

adhere[d] to the modern application of the doctrine of res judicata, as stated in 1

Restatement of the Law 2d, Judgments (1982), Sections 24-25, and [held] that a valid,

final judgment rendered upon the merits bars all subsequent actions based upon any

claim arising out of the transaction or occurrence that was the subject matter of the

previous action.” Grava v. Parkman Twp.,

,

(1995).

{¶48} Mr. Ashworth argues that he was previously convicted for unlawfully Lawrence App. No. 11CA16 23

disposing of waste at Sites 1 and 2. In 1998, the Lawrence County grand jury indicted

him on four charges. The first two counts related to unlawful open dumping of solid

waste, in violation of R.C. 3734.03, R.C. 3734.11, R.C. 3734.99, and Ohio Adm.Code

3745-27-05(C). Count One was for acts “during and between at least July 11, 1995

through at least September 19, 1997,” and Count Two was for acts “during and between

at least May 12, 1997 through at least February 13, 1998.” The other two counts

related to operating a construction and demolition debris facility without a license, in

violation of R.C. 3714.06, R.C. 3714.13, and R.C. 3714.99.6 Count Three was for acts

“during and between at least January 1, 1997 through at least September 19, 1997,”

and Count 4 was for acts “during and between at least May 12, 1997 through at least

February 13, 1998.” The indictment does not designate the locations of this illegal

activity as “Site 1” or “Site 2.” The parties agree the charges relate to those sites but fail

to specify which counts apply to which sites. Based on the time frames in the

indictment and evidence from trial in this case on when each site operated, it appears

Counts 1 and 3 apply to Site 1, and Counts 2 and 4 apply to Site 2.

{¶49} Mr. Ashworth pleaded guilty to all four counts. The trial court sentenced

him to three years of community control, fined him $20,000 for the unlawful open

dumping charges, and ordered him to “remediate” the sites to the satisfaction of the

Ohio EPA before his community control expired. The State later filed a motion to

revoke his community control because he failed to remediate the sites. However, the

motion hearing did not take place until after Mr. Ashworth’s community control period

had expired. Therefore, the court held that it lacked jurisdiction to act, denied the

motion, and ordered Mr. Ashworth’s release from community control. 6 The indictment mistakenly cited R.C. 3734.99 instead of R.C. 3714.99. Lawrence App. No. 11CA16 24

{¶50} In this lawsuit, the State alleged that for Sites 1 and 2, Mr. Ashworth

violated some of the same laws and regulations he pleaded guilty to violating in the

criminal prosecution. In addition, the State claimed that he operated a solid waste

facility without a license and illegally disposed of construction and demolition debris on

those sites. After the court concluded Mr. Ashworth committed many of the alleged

violations, it issued an injunction ordering him to remove solid waste and construction

and demolition debris from Sites 1 and 2 and assessed a civil penalty against him for

violations on each site.

{¶51} Mr. Ashworth does not contend that this civil action is in fact a veiled

second criminal prosecution that is barred on double jeopardy grounds. Instead, he

argues that the State’s claims are barred by res judicata. He suggests that the State did

or could have raised its claims in the criminal prosecution. Mr. Ashworth also argues

that the State obtained the same relief in both cases. In other words, he equates the

remediation order with the civil injunction, and he equates the criminal fine with the civil

penalty.

{¶52} However, Mr. Ashworth cites no authority for the proposition that the

government may not have a civil and criminal cause of action as a result of a single

factual situation. As stated in 2 Restatement of the Law 2d, Judgments, Section 85,

Comment a (1982):

A prosecution and a claim for a civil remedy are regarded as separate causes of action that may be independently pursued without the restrictions imposed by rules of merger and bar stated in §§ 18-26. This proposition holds even though the government is the plaintiff in the civil action.

Illustration: Lawrence App. No. 11CA16 25

1. T is prosecuted for the crime of income tax fraud. Neither a conviction nor an acquittal precludes the government, under the rule of claim preclusion, from bringing a civil action to recover from T the amount allegedly due in unpaid income tax.

***

{¶53} Thus, a civil action and a criminal prosecution are separate and

independent processes, each of which is available to the State as a means of enforcing

R.C. Chapters 3714 and 3734 and the rules adopted under them. The State is not

required to elect between a civil proceeding and criminal proceeding to the exclusion of

the other. See by way of analogy Village of New Lebanon v. Rinzler, 2nd Dist. No.

16454,

, *2 (Jan. 16, 1998) (“Civil administrative proceedings and

criminal prosecutions are separate and independent processes, each of which is

available to a municipality as a means of enforcing its ordinances. A municipality is not

required to elect between a civil proceeding and a criminal proceeding to the exclusion

of the other.”). Res judicata does not absolve a convicted criminal from civil liability for

his conduct. It is “not a shield to protect the blameworthy.” Davis v. Wal-Mart Stores,

Inc.,

,

(2001). If anything, the doctrine would

have the opposite effect Mr. Ashworth advocates for in this appeal. See 2 Restatement

of the Law 2d, Judgments, Section 85 (“With respect to issues determined in a criminal

prosecution: (1) A judgment in favor of the prosecuting authority is preclusive in favor of

the government: (a) In a subsequent civil action between the government and the

defendant in the criminal prosecution * * *.” (Emphasis deleted.)).

{¶54} Accordingly, we overrule the tenth assignment of error.

VIII. Mr. Ashworth’s Liability for Site 1

{¶55} In the statement of the fifth assignment of error, Mr. Ashworth contends Lawrence App. No. 11CA16 26

that the trial court erred in holding him liable for Site 1 because Mrs. Ashworth owns the

property. Within the body of this assignment of error, Mr. Ashworth complains that the

court erred in making a factual finding that he and Mrs. Ashworth jointly owned Site 1

but does not explain how this alleged error impacts his liability. We interpret this

assignment of error as a manifest weight of the evidence challenge. (See Appellant’s

Br. 10-11 (advocating that we apply this standard of review to all of the assignments of

error)). See Section VI. for an explanation our standard of review for such challenges.

The State implicitly concedes that Mrs. Ashworth alone owned Site 1 when the

violations occurred but argues that Mr. Ashworth is nonetheless liable for violations on

that site.7

{¶56} We agree the record contains no evidence that Mr. Ashworth and Mrs.

Ashworth ever jointly owned Site 1. However, the record contains conflicting evidence

about which of the Ashworths owned the property at the time the violations occurred.

The State introduced into evidence a copy of a deed showing that Mr. Ashworth

conveyed Site 1 to Mrs. Ashworth on April 7, 1994, i.e., before dumping began on the

property. However, Clint Shuff, an Ohio EPA employee, testified that he spoke to Mr.

Ashworth about Site 1 in 1995 – after dumping began but before it ceased – and Mr.

Ashworth said “it was his property * * *.” Thus, the record contains some evidence to

suggest that Mrs. Ashworth conveyed the property back to her husband and that he

owned it while violations occurred.

{¶57} Regardless of whether Mr. Ashworth ever reacquired the property, we find

the court’s error concerning joint ownership harmless. Mr. Ashworth makes no effort to

7 Although Mr. Ashworth limits this assignment of error to Site 1 violations, the State mistakenly interprets it as an attack on the violations found on all three sites, particularly Site 0. Lawrence App. No. 11CA16 27

explain how the court’s error relieves him of liability. And as we explain below, even if

we assume Mrs. Ashworth never conveyed the property back to her husband, the trial

court did not have to find that Mr. Ashworth owned Site 1 at the time the violations

occurred in order to hold him liable for those violations.

{¶58} The trial court held that Mr. Ashworth operated a solid waste facility

without a license on Site 1, a violation of R.C. 3734.05(A)(1), which provides: “[N]o

person shall operate or maintain a solid waste facility without a license * * *.”8 In

addition, the court held that he permitted unlawful open dumping on Site 1, a violation of

Ohio Adm.Code 3745-27-05(C), which states that “[n]o person shall conduct, permit, or

allow open dumping.”9 The court also held that Mr. Ashworth operated a construction

and demolition debris facility without a license on Site 1, a violation of R.C. 3714.06 and

3745-37-01(C). R.C. 3714.06 provides: “No person shall operate or maintain a

construction and demolition debris facility without an annual construction and demolition

debris facility operation license * * *.” And Ohio Adm.Code 3745-37-01(C) states: “No

person shall establish, modify, operate or maintain a construction and demolition debris

facility without a construction and demolition debris facility license * * *.” Finally, the

court held that Mr. Ashworth permitted illegal disposal of construction and demolition

debris at Site 1, a violation of Ohio Adm.Code 3745-400-04(B), which provides: “No 8 The State also alleged that Mr. Ashworth violated Ohio Adm.Code 3745-37-01(A), which provides: “No person shall conduct municipal solid waste landfill, industrial solid waste landfill, residual solid waste landfill, compost facility, transfer facility, infectious waste treatment facility, or solid waste incineration facility operations without possessing a separate, valid license for each such operation, as required by Chapter 3734. of the Revised Code * * *.” The court apparently concluded that he did not violate this provision because the court’s holding that he “operated a solid waste facility without a license” tracks the language of R.C. 3734.05(A)(1), not the language of the regulation. 9 The State also alleged that Mr. Ashworth violated R.C. 3734.03, which states: “No person shall dispose of solid wastes by open burning or open dumping * * *.” The trial court evidently held that he did not violate this provision because its conclusion that Mr. Ashworth “permitted unlawful open dumping” tracks the language of Ohio Adm.Code 3745-27-05(C) and not the statutory language. Lawrence App. No. 11CA16 28

person shall conduct or allow illegal disposal of construction and demolition debris * * *.”

{¶59} None of these statutes or regulations requires proof that the violator owns

the site at issue. Therefore, even if Mr. Ashworth did not own Site 1 when the violations

occurred, that fact would not relieve him from liability in this case. Because the court’s

factual error on joint ownership did not impact Mr. Ashworth’s substantial rights, see

Civ.R. 61, it is harmless. Accordingly, we overrule the fifth assignment of error.

IX. Injunction for Waste Removal

{¶60} In the sixth, eighth, and ninth assignments of error, the Appellants make

various complaints about the waste removal injunction. Based on our resolution of the

fourth assignment of error, this assignment of error is moot to the extent Grandview

complains the court ordered it to remove waste from Site 0, so we need not address

that issue. See App.R. 12(A)(1)(c). However, we must still address Mr. Ashworth’s

arguments as to all three sites and Grandview’s arguments as to Site 1 and 2.

A. Continued Presence of Solid Waste on the Sites

{¶61} In the sixth assignment of error, the Appellants contend that the trial court

erred when it issued a permanent injunction ordering them to remove solid waste from

the sites because the evidence does not support a finding that the sites still contain

such waste. To obtain a permanent injunction, the plaintiff must demonstrate a right to

relief under any applicable substantive law. See Island Express Boat Lines, Ltd. v. Put-

in-Bay Boat Line Co., 6th Dist. No. E-06-2002,

. In addition, the

plaintiff must ordinarily prove, by clear and convincing evidence, that the injunction is

necessary to prevent irreparable harm and that the plaintiff does not have an adequate

remedy at law. See Id. at ¶ 93. However, “[i]t is established law in Ohio that, when a Lawrence App. No. 11CA16 29

statute grants a specific injunctive remedy to an individual or to the state, the party

requesting the injunction ‘need not aver and show, as under ordinary rules in equity,

that great or irreparable injury is about to be done for which he has no adequate remedy

at law * * *.’ ” Ackerman v. Tri-City Geriatric & Health Care, Inc.,

,

(1978), quoting Stephan v. Daniels,

, 536 (1875).

“Therefore, statutory injunctions should issue if the statutory requirements are fulfilled.”

Columbus Steel Castings Co. v. King Tool Co., 10th Dist. Nos. 11AP-351 & 11AP-355,

, ¶ 66, citing

.

{¶62} Under the Revised Code a court “shall grant * * * permanent injunctive

relief upon a showing that the person against whom the action is brought has violated,

is violating, or is threatening to violate” R.C. Chapter 3734 or a rule adopted under that

chapter. R.C. 3734.10. Because R.C. 3734.10 grants a specific injunctive remedy to

the State, under Ackerman the court had to issue an injunction once the statutory

requirements were fulfilled. In other words, the court had to issue an injunction if the

State showed that Mr. Ashworth and Grandview had violated, were violating, or were

threatening to violate R.C. Chapter 3734 or a rule adopted under it.

{¶63} R.C. 3734.10 does not provide courts with any guidance about the scope

of its injunctive relief. But ordinarily, trial courts “retain broad discretion to fashion the

terms of an injunction.” Adkins v. Boetcher, 4th Dist. No. 08CA3060,

, ¶

35. Therefore, we will not reverse a court’s ruling on the scope of an injunction absent

an abuse of discretion. See

The phrase “abuse of discretion” implies “the court’s

attitude is unreasonable, arbitrary or unconscionable.”

.

{¶64} Regarding solid waste disposal, the trial court held that the Appellants Lawrence App. No. 11CA16 30

violated Ohio Adm.Code 3745-27-05(C) (promulgated under R.C. 3734.02) and R.C.

3734.05(A)(1). Because this is a civil case and these provisions are silent as to the

applicable burden of proof, we conclude that the State only had to prove the violations

by a preponderance of the evidence, not by clear and convincing evidence as the

Appellants suggest. See Wilson v. Ward,

,

,

(9th Dist.).

{¶65} The Appellants acknowledge that witnesses observed solid waste on the

surface of each site at some point. However, the evidence shows, and the State

apparently concedes, that no waste is presently on the surface of the sites. Therefore,

in order to issue an injunction ordering the removal of solid waste from the sites, the trial

court necessarily had to find that the solid waste was buried. The Appellants complain

that the State failed to present “conclusive evidence” that solid waste is buried beneath

the surface.

{¶66} Ohio Adm.Code 3745-27-05(C) and R.C. 3734.05(A)(1) do not require

proof that the defendant buried solid waste for the court to conclude a violation

occurred. Therefore, we interpret the Appellants’ argument as a challenge to the scope

of the injunction, not a challenge to the court’s holding that the violations occurred or

authority to issue an injunction at all. As noted above, we ultimately review such

challenges for an abuse of discretion. However, we must first determine whether the

implicit finding of fact the court relied on in fashioning the removal injunction – that solid

waste is buried on the sites – was against the manifest weight of the evidence. See by

way of analogy Mann v. Mann, 4th Dist. No. 09CA38,

(explaining

that in divorce proceedings, we ultimately review the division of property for an abuse of Lawrence App. No. 11CA16 31

discretion but will not disturb a court’s factual findings unless they are against the

manifest weight of the evidence). See Section VI., above, for an explanation of our

standard of review for such challenges. Because the Appellants do not challenge the

portion of the judgment ordering them to remove construction and demolition debris

from Sites 1 and 2, they implicitly concede that such debris was buried at those

locations.

{¶67} In their argument, the Appellants focus on the fact that none of the State’s

witnesses actually saw someone bury solid waste on any of the sites. They argue that

Mr. Ashworth testified that solid waste “never ended up in the landfill” because after

people unloaded items at the sites, someone would separate and remove the solid

waste from the other types of waste. (Appellant’s Br. 17). The Appellants emphasize

the testimony of Bobby Joe Dorton, who worked at Sites 0 and 1. Dorton claimed that

he used a bulldozer to remove solid waste from the landfill and that he and other

employees regularly checked the landfill to collect items they might have missed. In

addition, the Appellants argue that solid waste could not have been buried because

there was “no evidence in the surrounding areas.” (Appellant’s Br. 17). Specifically,

they point to Dorton’s testimony that he and others scanned a creek behind Mr.

Ashworth’s house to ensure no waste went into it. They also focus on Clint Shuff’s

testimony that during inspections, he never saw liquid or food waste at Sites 1 and 2 or

observed leachate flowing from those sites into a nearby creek.

{¶68} But contrary to the implication of Appellants’ argument, the mere fact that

the State failed to present direct evidence that the Appellants permitted/engaged in the

burial of solid waste at the sites did not preclude the trial court from finding it occurred. Lawrence App. No. 11CA16 32

In its decision, the trial court highlighted circumstantial evidence from which it could infer

solid waste was buried on the sites. The court found that Daniel Imhoff, an EPA Special

Investigator, observed trucks dispose of co-mingled solid waste and construction and

demolition debris on Site 0. Imhoff never observed anyone stop the trucks or separate

the different types of waste. After disposal on Site 0 ceased and it was covered with

soil, Mr. Ashworth built houses on the land. The court found that Shuff explained to Mr.

Ashworth that he needed a permit to build on top of solid waste, and Mr. Ashworth

removed the houses. In other words, Mr. Ashworth implicitly admitted solid waste was

buried beneath Site 0. The court also found that Shuff did not detect any signs of waste

removal in follow-up inspections. Moreover, the court found that while Mr. Ashworth

hoped his employees would separate solid waste from the construction and demolition

debris, he did not see them do this. The court also pointed out the fact that Dorton (who

testified about his role in solid waste removal) was only on the site 60-70% of the time

and could not testify “to what anyone else had done to encourage removal at the site.”

{¶69} The court also found that Shuff observed co-mingled solid waste and

construction and demolition debris on Site 1. During follow-up inspections, he did not

detect that any solid waste had been removed since his previous visits or that

procedures had been implemented to prescreen or separate the waste disposed on the

site. The court found that Mr. Ashworth told the EPA he stopped accepting waste on

the site in September 1997 and was “now burying the waste with two feet of soil.” The

court found that continued investigations revealed proper removal of waste had not

occurred. Moreover, at trial, Shuff testified that he observed flagging on Site 1, i.e.,

pieces of waste and debris sticking up out of the soil. And on one rainy day visit to the Lawrence App. No. 11CA16 33

site, he saw that waste had been buried on the site because the rain eroded away some

of the soil.

{¶70} For Site 2, the court found that EPA employees observed co-mingled solid

waste and construction and demolition debris on the site. According to Mr. Ashworth,

Ed Hegley covered waste on the site with debris and soil. The EPA sent a notice

ordering Mr. Ashworth to remove the solid waste and construction and demolition debris

from the site. The Appellants never gave the EPA verification of removal. The court

also found that while Mr. Ashworth hoped his employees would separate the waste on

the site, “he never actually saw anyone remove anything.” In addition, Kenneth Mettler,

an EPA special investigator, testified that he observed waste co-mingled with soil that

appeared to have been brought onto the site.

{¶71} Mr. Ashworth does not specifically challenge any of the court’s factual

findings or other evidence that suggests solid waste was buried on the sites. He

primarily complains that the court failed to credit other evidence which demonstrates

that people successfully separated and removed solid waste from other types of

waste/debris before the sites were covered with soil. But as trier of fact, the trial court

was free to believe all, part, or none of the testimony of any witness. State v. Weiss, 4th

Dist. No. 09CA30,

. Thus the court was free to disbelieve the

Appellants’ evidence on solid waste removal. And from the evidence adduced at trial, it

could infer that the Appellants did not remove all solid waste from the sites before they

were covered with soil.

{¶72} Accordingly, the trial court’s finding that solid waste was buried on the

sites was not against the manifest weight of the evidence. Therefore, the court did not Lawrence App. No. 11CA16 34

abuse its discretion when it relied on this finding to issue the solid waste removal

injunction. We overrule the sixth assignment of error.

B. The Appellants’ Financial Ability to Comply with the Removal Injunction

{¶73} In the eighth assignment of error, the Appellants contend that the trial

court abused its discretion by issuing an injunction ordering them to remove “waste”

from the sites because they lack the financial resources to comply with the order. It

appears in this argument the Appellants use the term “waste” as shorthand for solid

waste and construction and demolition debris.

{¶74} The trial court held that the Appellants violated Chapters 3714 and 3734 of

the Revised Code and various regulations. Under R.C. 3714.11(A) and R.C. 3734.10, a

court “shall grant * * * permanent injunctive relief upon a showing that the person

against whom the action is brought has violated, is violating, or is threatening to violate”

either of these chapters or a rule adopted under them. R.C. 3714.11(A) and R.C.

3734.10 do not provide courts with any guidance as to the scope of this injunctive relief.

But as we already noted, generally trial courts “retain broad discretion to fashion the

terms of an injunction.” Adkins, supra, at ¶ 35. Therefore, we will not reverse a court’s

ruling on the scope of an injunction absent an abuse of discretion. See id. The phrase

“abuse of discretion” implies “the court’s attitude is unreasonable, arbitrary or

unconscionable.”

.

{¶75} The Appellants point to the testimony of Craig Cox, and environmental

consultant, who testified that the “removal and disposal costs would be in the range of

$4,168,000 to $5,310.00.” (Appellant’s Br. 19). The Appellants argue that the evidence

proves that their “combined financial resources, even without payment of the civil Lawrence App. No. 11CA16 35

penalty, are well below” these costs. (Appellant’s Br. 21). Mr. Ashworth complains that

in 2007, he and his wife’s combined income only totaled $56,700. He admits that he

has two million dollars in assets but complains that they are not liquid assets, so he

does not have ready access to two million dollars in cash. Mr. Ashworth complains that

he would have to sell household furnishings and cars to pay for waste removal and

argues that he had to take out loans in the past just to pay property taxes. Grandview

complains that the only money it would have available for waste removal is its 2007

profits after taxes – a little over $200,000. But if it used this money, it would not have

funds for capital improvements, replacement equipment, or loan payments. Based on

this evidence, the Appellants contend that it is impossible for them to comply with the

terms of the injunction.

{¶76} The trial court made no specific findings of fact about the Appellants’

financial condition. The court also made no findings about the cost of removal. Thus,

we presume the court considered the Appellants’ evidence on these points and rejected

it as incredible. See Clark v. Clark, 10th Dist. No. 97APF10-1360,

, *4

(Sept. 1, 1998). See also BancOhio/Ohio Natl. Bank v. Adkins, 4th Dist. No. 83-CA-3,

, *5 (Mar. 15, 1984) (rejecting argument that court failed to consider

expert testimony because “it is as reasonable to assume, if not more so, the court

considered and rejected such expert testimony as to assume it was not considered.”).

Again, as trier of fact, the court was free to believe all, part, or none of the testimony of

any witness.

. Although it may have been the better course for

the trial court to have explained the analysis by which it reached its decision to reject

this evidence, “the trial court has no duty to comment on each item of evidence.” Clark Lawrence App. No. 11CA16 36

at *4.

{¶77} Therefore, while there may have been evidence from which the court

could conclude that it was financially impossible for the Appellants to remove the solid

waste and construction and demolition debris, the court was within its discretion to

reject this evidence and issue the removal injunction. As the State points out, if the

Appellants do not comply with the injunction, they can present evidence of their inability

to pay at any future contempt hearing.

C. The Costs and Benefits of Waste Removal

{¶78} In the ninth assignment of error, the Appellants contend that the trial court

abused its discretion by issuing an injunction that required removal of the waste

because the financial cost and risk of environmental damage during removal “greatly

exceeds” any environmental harm that would occur if the waste remained in place. The

State interprets this argument as the Appellants’ attempt to improperly impose on it the

burden to prove the injunction was necessary to prevent irreparable harm when such

proof is not required for a statutory injunction. We disagree with this interpretation. The

Appellants do not argue that the State had to satisfy such a burden or question the

court’s ability to issue any injunctive relief in this case. Instead, their argument amounts

to another challenge to the scope of the injunction. They claim that based on the

evidence produced at trial, the injunction should have only prohibited future waste

disposal instead of also mandating waste removal. See Section IX.B, above, for an

explanation of our standard of review in challenges to the scope of an injunction.

{¶79} The Appellants contend that the court failed to weigh the costs and risks of

removal against the environmental benefits of removal. If the court had made this Lawrence App. No. 11CA16 37

assessment, it would have held the removal costs and risks greatly outweighed any

possible benefits and exercised its discretion to not mandate removal. The Appellants

again point to Cox’s testimony that the removal work would cost between $4,168,000

and $5,310,000. They also highlight the testimony of John Baker, an environmental

engineer, who opined that the three sites appeared to present no threat to the

environment. Baker also testified that waste removal could actually harm the

environment by creating dust, noise, odor, and other problems. The Appellants

essentially complain the court ignored this evidence.

{¶80} The trial court did not make any findings of fact about the costs and risks

of removal or danger of leaving the waste in place. Nonetheless, we will not assume

that the court ignored the Appellants’ evidence on these issues simply because the

findings are silent in this regard. See Cangemi v. Cangemi, 8th Dist. No. 42377,

, *1 (Dec. 24, 1980) (“[W]e will not, when confronted with a silent record,

indulge in a presumption which supports an assertion that the trial court acted in error.

Error must be affirmatively demonstrated by the appellant on the face of the record.”).

Instead, we presume the court considered the Appellants’ evidence on these points and

rejected it as incredible. See Clark, supra, at *4. See also BancOhio/Ohio Natl.

. Again, as trier of fact, the court was free to believe all, part, or none of the

testimony of any witness.

. And while it may have been the better

course for the trial court to have explained the analysis by which it reached its decision

to reject this evidence, “the trial court has no duty to comment on each item of

evidence.”

. Therefore, while there may have been evidence from which the

trial court could conclude that removal was not warranted because the cost and risks Lawrence App. No. 11CA16 38

greatly exceeded any environmental benefit, the court was within its discretion to reject

this evidence and issue the injunction.

{¶81} Accordingly, we overrule the ninth assignment of error.

X. Civil Penalties

{¶82} In their seventh assignment of error, the Appellants contend that the trial

court erred by imposing civil penalties that exceed their financial resources and would

render them insolvent. Based on our resolution of the fourth assignment of error, this

argument is moot as to the civil penalty imposed on Grandview for Site 0. Nonetheless,

we must consider the argument with regard to the other civil penalties assessed.

{¶83} “ ‘Civil penalties can be used as a tool to implement a regulatory program.’

” State ex rel. Cordray v. Morrow Sanitary Co., 5th Dist. No. 10 CA 10, 2011-Ohio-

2690, ¶ 26, quoting State ex rel. Brown v. Howard,

,

(10th Dist. 1981). Here, the trial court assessed civil penalties under R.C.

3714.11(B) and R.C. 3734.13(C). R.C. 3714.11(B) provides that the trial court “may

impose” a “civil penalty of not more than ten thousand dollars for each day of each

violation of [Chapter 3714.]” or a rule adopted under it. Under R.C. 3734.13(C), with

certain exceptions not applicable here, the court “may impose” a “civil penalty of not

more than ten thousand dollars for each day of each violation of [Chapter 3734.]” or a

rule adopted under it.

{¶84} As long as the civil penalty for each day of each violation does not exceed

$10,000, the trial court has discretion to fix the amount of the penalty. See State ex rel.

Montgomery v. Maginn,

,

,

(12th Lawrence App. No. 11CA16 39

Dist.), ¶ 35-36.10 Therefore, we will not reverse a civil penalty that does not exceed the

statutory maximum absent an abuse of that discretion. See

The phrase “abuse of

discretion” connotes an attitude on the part of the court that is unreasonable,

unconscionable, or arbitrary.

. When applying an abuse of

discretion standard, we are not free to merely substitute our judgment for that of the trial

court. In re Jane Doe 1, supra, at 138.

{¶85} “In order to be an effective deterrent to violations, civil penalties should be

large enough to hurt the offender but not cause bankruptcy.” State ex rel. Ohio Atty.

Gen. v. Shelly Holding Co.,

,

,

(10th Dist.), ¶ 63. See generally State ex rel. Brown v. Dayton Malleable, Inc.,

,

(1982) (holding trial court could consider evidence of

defendant’s financial condition to ensure civil penalty “would not be so large as to send

[defendant] into bankruptcy but would be large enough to deter future violations.”).

However, the State has no burden to produce evidence of the defendant’s financial

condition; it has the right to seek the maximum penalty allowed. State ex rel. Ohio Atty.

Gen. v. LG Dev. Corp.,

,

,

(6th

Dist.), ¶ 36-37. Factors the court may consider in assessing the penalty include: the

“defendant’s recalcitrance, defiance, or indifference to the law; the financial gain that

accrued to defendant; the environmental harm that resulted; and the extraordinary costs

incurred in enforcement of the law.” State ex rel. Cordray v. U.S. Technology Corp., 5th

Dist. No. 11AP060025,

.

{¶86} Again, the trial court did not make specific findings of fact about the

10 Although this case discussed the standard of review for civil penalties under R.C. 3734.13(C), we find the standard equally applicable to R.C. 3714.11(B) given the similarity of the statutory language. Lawrence App. No. 11CA16 40

financial status of Mr. Ashworth or Grandview. Therefore, we presume the court

rejected their financial evidence as incredible, which as trier of fact, it was free to do.

See Clark, supra, at *4;

. See also BancOhio/Ohio Natl.

. The court did find that Sites 0 and 1 earned approximately $150 per day

from illegal dumping. The court also found that Mr. Ashworth benefitted from illegal

operations on Sites 0 and 1 because the disposal of waste on those sites leveled out

the properties. In addition, the court found 17,594 days of violations for Mr. Ashworth

and 10,043 days of violations for Grandview.11 And the court found that even though

the Appellants ceased operations on the sites over a decade ago, they still had not

removed the improperly disposed of waste. The trial court could conclude such

evidence demonstrated at the very least indifference toward the law.

{¶87} Moreover, the trial court assessed a total civil penalty against Mr.

Ashworth of $1,759,403. And the court assessed a total civil penalty against Grandview

of $1,004,302 (an amount for which Mr. Ashworth is also personally liable).12 Had the

trial court assessed the maximum penalty, the total penalty for Mr. Ashworth would have

been $175,940,000 ($10,000 x 17,594 violations), and for Grandview, it would have

been $100,430,000 ($10,000 x 10,043 violations). Instead, the amount the court

assessed against each Appellant was approximately one percent of those figures, i.e.,

the court imposed a penalty of about $100 per violation instead of the $10,000 per

violation it could have assessed.13

11 We calculated the figure for Grandview by adding the days in violation for Sites 1 and 2; we omitted the days the court found Grandview in violation on Site 0 based on our ruling on the fourth assignment of error. 12 We calculated the figure for Grandview by adding the civil penalties for Sites 1 and 2; we omitted the civil penalty for Site 0 based on our ruling on the fourth assignment of error. 13 In portions of their briefs, the Appellants appear to interpret the court’s judgment to mean the court ordered them to pay a combined civil penalty of $1,759,403. We disagree with this interpretation. The Lawrence App. No. 11CA16 41

{¶88} Based on the foregoing, we hold that the trial court did not demonstrate an

unreasonable, arbitrary, or unconscionable attitude in fixing the amount of the civil

penalties. Because the court did not abuse its discretion, we overrule the seventh

assignment of error.

XI. Summary

{¶89} The first assignment of error is moot as to the complaints of Mrs. Ashworth

and D.J. In all other regards, we overrule the first assignment of error. We lack

jurisdiction to consider the second and third assignments of error and dismiss that

portion of the appeal. We overrule the fifth assignment of error as to Mr. Ashworth and

find it moot as to Mrs. Ashworth. We overrule the tenth assignment of error. We

sustain the fourth assignment of error, reverse the trial court’s judgment holding

Grandview liable for Site 0, and remand for further proceedings on that issue.

Regarding the sixth, seventh, eighth, and ninth assignments of error, we: 1.) overrule

them as to Mr. Ashworth; 2.) find them moot as to Mrs. Ashworth and D.J.; and 3.)

overrule them as to Grandview to the extent they are not rendered moot by our ruling on

the fourth assignment of error. Accordingly, we affirm the trial court’s judgment in part,

reverse it in part, and remand for further proceedings consistent with this opinion.

court held that Mr. Ashworth committed violations in his personal capacity and that Grandview committed violations. Then the court held that Mr. Ashworth had “personal liability” for Grandview’s violations “by virtue of his position” as the company’s “President and/or Chief Executive Officer.” In other words, the court pierced the corporate veil, albeit through use of an inappropriate test. See Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos.,

,

(1993), paragraph three of the syllabus. However, Mr. Ashworth does not raise this issue on appeal, so we need not address it. Thus, when the court for instance ordered “a civil penalty against the Defendants for $566,001.00” for Site 1, we interpret that language to mean that: 1.) Mr. Ashworth must pay $566,001.00 for his violations; 2.) Grandview must pay $566,001.00 for its violations; and 3.) because the court pierced the corporate veil, Mr. Ashworth is also personally liable for Grandview’s civil penalty. Lawrence App. No. 11CA16 42

JUDGMENT AFFIRMED IN PART, JUDGMENT REVERSED IN PART, APPEAL DISMISSED IN PART, AND CAUSE REMANDED. Lawrence App. No. 11CA16 43

Kline, J., dissenting, in part.

{¶90} I concur in judgment and opinion with respect to the portions of the opinion

addressing the arguments of Mrs. Dreama Ashworth and D.J. Ashworth, Inc.

{¶91} I respectfully dissent from the remainder of the opinion because I believe

that the magistrate’s failure to render a decision warrants reversal. “‘The clear import of

Civ.R. 53[] is to provide litigants with a meaningful opportunity to register objections to

the [magistrate’s] report and the failure to provide such an opportunity to object is

prejudicial error.’” (Emphasis sic.) Performance Constr., Inc. v. Carter Lumber Co., 3d

Dist. No. 5-04-28,

, quoting In re Estate of Hughes,

,

(9th Dist. 1994); see also Ford v. Gooden, 9th Dist. No.

22764,

.

{¶92} Here, the magistrate failed to issue a decision. Therefore, I believe that

Appellants were prejudiced because they did not have the opportunity to register

objections to a magistrate’s decision as contemplated by Civ.R. 53.

{¶93} Thus, I dissent, in part. Lawrence App. No. 11CA16 44

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED IN PART, the JUDGMENT IS REVERSED IN PART, the APPEAL IS DISMISSED IN PART, and that the CAUSE IS REMANDED. Appellants and the Appellee shall split the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J.: Concurs in Judgment and Opinion. Kline, J.: Concurs in Judgment and Opinion as to part of Assignments of Error I, V, VI, VII, VIII, IX and all of Assignments of Error II and III; and Dissents with Opinion as to remainder of the Principal Opinion.

For the Court

BY: ________________________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.