[Cite as Cook v. Donley, 2019-Ohio-3750.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



BRENDA COOK                                      JUDGES:
                                                 Hon. John W. Wise, P. J.
        Plaintiff-Appellant                      Hon. Patricia A. Delaney, J.
                                                 Hon. Earle E. Wise, Jr., J.
-vs-
                                                 Case No. 2019 CA 0021
CRAIG DONLEY, et al.

        Defendants-Appellees                     OPINION




CHARACTER OF PROCEEDING:                      Civil Appeal from the Court of Common
                                              Pleas, Case No. 17 CV 325


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        September 18, 2019



APPEARANCES:

For Plaintiff-Appellant                       For Defendants-Appellees

MICHAEL J. FUSCO                              DAVID D. CARTO
FUSCO, MACKEY, MATHEWS & GILL                 WELDON, HUSTON & KEYSER
1069 Melinda Drive                            76 North Mulberry Street
Westerville, Ohio 43081                       Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0021                                                  2

Wise, John, P. J.

       {¶1}   Appellant Brenda Cook appeals the decision of the Richland County

Common Pleas Court denying her motion for continuance and granting a directed verdict

in favor of Appellees Craig Donley and Jennifer Donley.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   The relevant facts and procedural history are as follows.

       {¶3}   Appellees Craig and Jennifer Donley were the owners of a home located at

599 Harlan Road, Mansfield, Ohio, 44903, until 2013, when the property was sold to

Appellant Brenda Cook.

       {¶4}   On May 11, 2015, Plaintiff-Appellant Brenda Cook filed her original

Complaint in the Richland County Court of Common Pleas, titled Richland County

Common Pleas Case No. 15-CV-623.             Due to delays in discovery and several

continuances of the scheduled trial, the 2015 case was dismissed without prejudice by

way of stipulated entry on April 20, 2017.

       {¶5}   Appellant re-filed her complaint on April 24, 2017, titled Richland County

Common Pleas Case Number 17-CV-325. This is the case at hand in this appeal.

       {¶6}   A jury trial was initially scheduled for March 8, 2018, but was continued on

March 6, 2018 in order to allow the Court additional time to rule on the pending motions

for summary judgment filed by all defendants.

       {¶7}   Appellant had originally named several defendants in her action, but on

April 3, 2018, the trial court granted summary judgment against Appellant in regards to

all of her claims except one, a breach of contract claim relating to alleged damage caused
Richland County, Case No. 2019 CA 0021                                                     3


by Appellees to Appellant's driveway. This last remaining claim, the subject of this appeal,

was to move forward to a bench trial, which was set for February 1, 2019.

       {¶8}   Appellant filed a motion for continuance of the final pretrial scheduled for

January 3, 2019, which was granted.

       {¶9}   Appellant failed to pay a required jury deposit, and therefore the trial court,

on January 28, 2019, denied Appellant's motion to have the case reset for a jury trial.

       {¶10} The case was bumped due to ongoing criminal trials on January 31, 2019,

and a bench trial was rescheduled for February 22, 2019.

       {¶11} On February 19, 2019, three days before the scheduled bench trial,

Appellant filed a Motion for Continuance. This Motion contained three Exhibits:

       1. Exhibit A: an obituary of Ralph E. Brown.

       2. Exhibit B: A letter dated 1/30/19 purportedly authored by Peggy A. Walter, and

       addressed to Appellant's counsel (filed under seal).

       3. Exhibit C: a letter dated 2/13/19 purportedly authored by Peggy A. Walter and

       again addressed to Appellant's counsel (filed under seal).

       {¶12} A fourth exhibit was presented at the bench trial, which was labeled as

Exhibit D. (T. at 4). Exhibit D was again filed under seal and is a third letter purportedly

from Peggy A. Walter.

       {¶13} The letters all are unsigned and do not appear on any letterhead. (T. at 5).

The letters were not signed under oath, notarized, or otherwise provided as affidavits.

The letters "MA, LPCC" appear after Walter's name on the correspondence, but no facts

in the record exist to establish what degree or profession those alleged degrees or

credentials represent.
Richland County, Case No. 2019 CA 0021                                                    4


         {¶14} On February 19, 2019, Appellees filed a response objecting to the Motion

stating that the exhibits attached to said motion were unsigned and unverifiable.

         {¶15} On February 21, 2019, the trial court filed an Entry denying the motion.

         {¶16} On February 22, 2019, a bench trial was held in this matter.

         {¶17} At the bench trial, Appellant failed to appear and counsel for Appellant

appeared alone. No witnesses were in attendance. (T. at 3). Counsel argued that

Appellant could not attend "per her medical professionals." (T. at 3). The trial court again

denied Appellant's Motion for a continuance.

         {¶18} The trial court gave Appellant's counsel the option to proceed with his case.

Appellant's counsel chose not to call any witnesses or to call Appellees on cross-

examination. (T. at 10). No testimony was presented on behalf of Appellant at the bench

trial.

         {¶19} Appellees moved for a directed verdict due to the failure of Appellant to

present any evidence, and the motion was granted. (T. at 13-14).

         {¶20} By Judgment Entry filed March 8, 2019, the trial court journalized the denial

of the motion for continuance and the granting of the motion for a directed verdict.

         {¶21} Appellant now appeals, raising the following errors for review:

                                ASSIGNMENTS OF ERROR

         {¶22} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT'S MOTION FOR CONTINUANCE AND GRANTING APPELLEES A

DIRECTED        VERDICT      WHEN      APPELLANT       WAS     UNDERGOING         A    LIFE-

THREATENING EMOTIONAL CRISIS WHICH RENDERED HER UNABLE TO

PARTICIPATE IN THE SCHEDULED TRIAL.
Richland County, Case No. 2019 CA 0021                                                    5


       {¶23} “II. BY DENYING OF [SIC] APPELLANT'S MOTION FOR CONTINUANCE

AND INSISTENCE ON PROCEEDING IN HER ABSENCE, THE TRIAL COURT

DEPRIVED APPELLANT OF HER RIGHT TO DUE PROCESS OF LAW. [ID.] THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.”

                                           I., II.

       {¶24} In her first and second assignments of error, Appellant argues that the trial

court erred in denying her motion for a continuance. We disagree.

       {¶25} “The grant or denial of a continuance is a matter which is entrusted to the

broad, sound discretion of the trial judge.” State v. Unger, 67 Ohio St.2d 65, 67, 423

N.E.2d 1078 (1981). Therefore, an appellate court must not reverse a trial court's decision

to deny a motion for continuance unless it finds that the trial court abused its discretion.

Id.; State v. Wheat, 5th Dist. Licking No. 2003–CA–00057, 2004–Ohio–2088, ¶ 16. In

order to find an abuse of discretion, the reviewing court must determine that the trial

court's decision was unreasonable, arbitrary, or unconscionable and not merely an error

of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶26} The reviewing court must balance the interests of judicial economy and

justice against any potential prejudice to the moving party. State v. Scott, 5th Dist. Stark

No. 2001CA0004, 2001 WL 1744125 (Dec. 28, 2001). To constitute a sufficient ground

for a continuance because of the absence of a party, it must appear that: the party's

absence is unavoidable, rather than voluntary; the party's presence at trial is necessary;

the continuance is made in good faith; and, the party will probably be able to attend court
Richland County, Case No. 2019 CA 0021                                                      6

at some reasonable future time. State ex rel. Buck v. McCabe, 140 Ohio St. 535, 538,

(1942), citing 17 Corpus Juris Secundum, Continuances, p. 210, § 27. A litigant does not

have a right to unreasonably delay a trial. See Hartt v. Munobe, 67 Ohio St.3d 3, 9, 1993-

Ohio-177.

       {¶27} In evaluating whether the trial court has abused its discretion in denying a

continuance, appellate courts apply a balancing test which takes into account a variety of

competing considerations, including the length of the delay requested; whether other

continuances have been requested and received; the inconvenience to litigants,

witnesses, opposing counsel and the court; whether the requested delay is for legitimate

reasons or whether it is dilatory, purposeful, or contrived; and whether the defendant

contributed to the circumstance which gives rise to the request for a continuance. State

v. Palmer, 5th Dist. Richland No. 17 CA 13, 2018-Ohio-1266, ¶ 73, appeal not allowed,

153 Ohio St.3d 1442, 2018-Ohio-2834, 102 N.E.3d 500, citing State v. Unger, 67 Ohio

St.2d 65, 67–68, 423 N.E.2d 1078 (1981).

       {¶28} In the instant case, Appellant failed to appear for trial. Her written motion for

continuance has already been denied three (3) days prior. While certain documents

purporting to be letters from a therapist by the name of **** Walter were presented to the

trial court in support of the written and oral motions for continuance, no evidence or

testimony was ever presented to the trial court to verify these unsigned letters as

authentic. Further, no credentials were ever provided to establish Walter as a credible

witness or expert.

       {¶29} In said letters it was alleged that Appellant was unable to attend the

scheduled trial for various reasons, but no evidence was presented through testimony or
Richland County, Case No. 2019 CA 0021                                                        7


otherwise in support. In said letters, Ms. Walter purportedly stated that Appellant's

emotional health did not allow her to attend at that time. However, she was unable to

give the trial court any guarantee that Appellant would ever be able to attend a trial.

Appellant's counsel himself stated that if the case were to be continued to a later date,

"[Appellant] would be in a better position to be here. Obviously no one can guarantee that,

you can't guarantee anyone will be here ... she's not admitted to the hospital." (T. at 7-8).

       {¶30} The trial court overruled the Motion for Continuance for a variety of reasons,

including the court's overloaded docket, the fact that there was no guarantee that

Appellant would appear if a continuance was granted, and the fact that the present case

had been pending for almost two years, and in total nearly four years. (T. at 7-8).

       {¶31} We find that the trial court did not err in proceeding with the trial because

appellant's absence was not unavoidable, and Appellant did not appear to renew her

motion for a continuance. With respect to due process, we note that, in civil proceedings,

due process requires notice and a meaningful opportunity to be heard. State v. Hayden,

96 Ohio St.3d 211, 2002–Ohio–4169, 773 N.E.2d 502. We find that reasonable notice

and opportunity to be heard were afforded to Appellant under the facts and circumstances

presented, and that the trial court did not err or abuse its discretion in declining to continue

or reset the trial to a later date.

       {¶32} Upon consideration of the Unger factors, we do not find the trial court

abused its discretion. See Palmer, supra, at ¶ 75.
Richland County, Case No. 2019 CA 0021                                       8


       {¶33} Appellant’s assignments of error are overruled.

       {¶34} Accordingly, the judgment of the Court of Common Pleas of Richland

County, Ohio, is affirmed.


By: Wise, John, P. J.

Delaney, J., and

Wise, Earle, J., concur.



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