[Cite as Mason v. Douglas, 2012-Ohio-5501.]


                                      COURT OF APPEALS
                                  GUERNSEY COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




RONALD MASON, ET AL.                          :    JUDGES:
                                              :    Hon. Patricia A. Delaney, P.J.
        Plaintiffs-Appellees                  :    Hon. Sheila G. Farmer, J.
                                              :    Hon. John W. Wise, J.
-vs-                                          :
                                              :
ANGELA DOUGLAS, ET AL.                        :    Case No. 12CA000011
                                              :
        Defendants-Appellants                 :    OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Cambridge
                                                   Municipal Court, Case No. 07-CVG-
                                                   00201


JUDGMENT:                                          Judgment Vacated and Remanded




DATE OF JUDGMENT:                                  November 26, 2012




APPEARANCES:

For Plaintiffs-Appellees                           For Defendants-Appellees

E. MARIE SEIBER                                    PATRICK W. SKILLITER
P.O. Box 108                                       422 Main Street
Dennison, OH 44621                                 Suite 400
                                                   P.O. Box 427
                                                   Zanesville, OH 43702-0427
Guernsey County, Case No. 12CA000011                                                     2

Farmer, J

      {¶1}      Appellees, Ronald and JoAnn Mason, rented an apartment to appellee,

Angela Douglas.      On March 20, 2007, appellees filed a forcible entry and detainer

action for past rent due and owing. Appellees also named Brandon Mickle in the action

who is not a party to this appeal. On April 19, and May 14, 2007, appellant filed an

answer and counterclaim alleging lead based poisoning of her minor child.

      {¶2}      A bench trial commenced on December 7, 2007. By docket and journal

entry filed March 8, 2012, the trial court found in favor of appellees as against appellant

in the amount of $4,260.00 on their complaint in favor of appellees on appellant's

counterclaim.

      {¶3}      Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶4}      "THE TRIAL COURT ERRED IN ENTERING JUDGMENT FOR THE

PLAINTIFFS-APPELLEES, BECAUSE THE MANIFEST WEIGHT OF THE EVIDENCE

AT TRIAL SHOWED THAT THE LANDLORDS HAD KNOWLEDGE AND NOTICE OF

THE LEAD-BASED HAZARDS IN THE RENTED HOME WHICH VIOLATED THE OHIO

LANDLORD-TENANT ACT AND THE PARTIES' LEASE AND WHICH CAUSED THE

LANDLORDS' ACTS AND OMISSIONS TO AMOUNT TO NEGLIGENCE PER SE."

                                            II

      {¶5}      "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE

DEFENDANT-APPELLANT'S MOTION TO JOIN NECESSARY PARTIES, MOTION
Guernsey County, Case No. 12CA000011                                                       3


FOR CONTINUANCE, AND MOTION FOR LEAVE TO FILE AN AMENDED ANSWER,

AFFIRMATIVE DEFENSES, AND COUNTERCLAIM INSTANTER."

                                             II

       {¶6}   We will address this assignment of error first as we find it to be dispositive

of the appeal.

       {¶7}   Appellant claims the trial court erred in denying her motions to join

necessary parties (her minor child), for continuance, and for leave to file an amended

answer.

       {¶8}   Civ.R. 19.1 governs compulsory joinder.        Subsection (A)(3) states the

following:



              (A) A person who is subject to service of process shall be joined as

       a party in the action, except as provided in subdivision (B) of this rule, if

       the person has an interest in or a claim arising out of the following

       situations:

              (3) Personal injury or property damage to a minor and a claim of

       the parent or guardian of the minor for loss of consortium or expenses or

       property damage if caused by the same wrongful act.



       {¶9}   We note the action arose as a forcible entry and detainer action on March

20, 2007. On April 19, 2007, appellant filed a pro se answer on a form provided by the

trial court. By magistrate's decision filed April 30, 2007, a writ of restitution was granted

by stipulation with a specific notation that appellant was given until May 11, 2007 to file
Guernsey County, Case No. 12CA000011                                                 4


an amended counterclaim.        On May 14, 2007, appellant filed an answer and

counterclaim and was represented by Attorney Patrick W. Skilliter. Appellant alleged

breach of contract, a violation of the Landlord-Tenant Act, negligence per se, and

negligence, all based upon elevated levels of lead found in the blood of appellant's

minor child on December 15, 2006, February 15, 2007, and mid-April 2007.

      {¶10} On April 26, 2007, appellant had requested an inspection of the rental

premises by the Department of Health relative to the levels of lead:



             The conditions in this apartment are relevant to the Defendant's

      Counterclaim and should be brought before the Court by agencies with the

      expertise and ability to investigate appropriately.    This inspection and

      corresponding order to repair are warranted in this case to sort out the

      pending financial matters as well as to protect future tenants and children

      from potentially hazardous conditions.



      {¶11} The trial court conducted a pretrial on June 7, 2007 and noted discovery

was not complete and set a discovery cut-off date for September 7, 2007 and a trial

date for December 7, 2007.       On September 5, 2007, appellant filed a motion for

continuance and enlargement of time for three months citing the following reasons:



             Defendant requests more time to hire professional evaluators,

      complete discovery through deposition of those experts, and additional

      time to prepare her case presentation. According to the latest discussions
Guernsey County, Case No. 12CA000011                                                    5


       with Plaintiffs' Attorney, neither party has had time to retain experts or

       evaluate the premises and the child as needed. This information is crucial

       to the discovery process and essential to the case itself.

              Further, the initial inspection of the premises for lead paint by the

       Ohio Department of Health was not conducted until August 2, 2007. The

       results of that inspection are pending and it is likely that both parties will

       require time to interview and/or depose the inspector, laboratory

       technicians, and other doctors or sanitarians involved in this matter who

       are not known at this time. Defense Counsel notified the Court at the

       Pretrial on June 7, 2007, that he encountered significant difficulty when

       requesting such an inspection and that the time frame discussed at Pre-

       Trial was the best estimate. Unfortunately, it has become apparent that

       more time is now required.



       {¶12} On September 17, 2007, appellant requested a leave to amend her

answer and counterclaim and to add her minor child, D'Andre Fowler, as a co-defendant

and counterclaimant. By journal entry filed October 11, 2007, the trial court denied

appellant's September 5 and 17, 2007 motions.

       {¶13} A review of the docket and transcripts disclose a trial was held on

December 7, 2007, but no journal entry or findings were filed until March 8, 2012.

There is no explanation in the record for the four year delay. Judicial expediency was

clearly not an issue.
Guernsey County, Case No. 12CA000011                                                     6


       {¶14} We find appellant's requests for a continuance and enlargement of time

and to amend her answer and counterclaim were timely given that the inspection

occurred only thirty-six days prior to the discovery cut-off date of September 7, 2007

and the parties were still awaiting the results. Under Civ.R. 19.1(A)(3), we find the trial

court erred in denying appellant's requests to add her minor child as a party-defendant.

       {¶15} Assignment of Error II is granted. Assignment of Error I is rendered moot.

       {¶16} The judgment of the Cambridge Municipal Court of Guernsey County,

Ohio is vacated.

By Farmer, J.

Delaney, P.J. and

Wise, J. concur.




                                             s/ Sheila G. Farmer________________



                                             s/ Patricia A. Delaney______________



                                             s/ John W. Wise___________________

                                                            JUDGES

SGF/sg
[Cite as Mason v. Douglas, 2012-Ohio-5501.]


                 IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT



RONALD MASON, ET AL.                          :
                                              :
        Plaintiffs-Appellees                  :
                                              :
-vs-                                          :        JUDGMENT ENTRY
                                              :
ANGELA DOUGLAS, ET AL.                        :
                                              :
        Defendants-Appellants                 :        CASE NO. 12CA000011




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Cambridge Municipal Court of Guernsey County, Ohio is vacated. The

matter is remanded to said court for further proceedings consistent with this opinion.

Costs to appellees.




                                              s/ Sheila G. Farmer________________



                                              s/ Patricia A. Delaney______________



                                              s/ John W. Wise___________________

                                                           JUDGES
