The opinion
[Cite as Paris Twp. Bd. of Trustees v. Battles, 2014-Ohio-4132.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
BOARD OF PARIS : OPINION
TOWNSHIP TRUSTEES,
:
Plaintiff-Appellee, CASE NO. 2013-P-0079
:
- vs -
:
DENNIS R. BATTLES, et al.,
:
Defendant-Appellant.
:
Civil Appeal from the Portage County Court of Common Pleas, Case No. 1996 CV 914.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, Pamela J. Holder, Assistant
Prosecutor, and Christopher J. Meduri, Assistant Prosecutor, 241 South Chestnut
Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Dennis R. Battles, pro se, 10077 Holcomb Road, Newton Falls, OH 44444
(Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Dennis Battles, appeals the August 20, 2013 Order
and Journal Entry of the Portage County Court of Common Pleas, adopting the
Magistrate Decision of March 6, 2013. The issues before this court are whether a trial
court may issue a discovery order granting a township zoning inspector access to a
party’s land to determine the party’s compliance with a court order and whether the
appeal of a judgment, finding a party in contempt, may consider the merits of the
judgment underlying the contempt finding. For the following reasons, we affirm the
decision of the court below.
{¶2} On October 22, 1996, plaintiff-appellee, the Board of Paris Township
Trustees, filed a Complaint against Dennis and Lynne Battles in the Portage County
Court of Common Pleas, seeking “[a] preliminary and permanent mandatory injunction
ordering the defendants to remove or conceal, where applicable, the motor vehicles
located, stored, and kept on the real estate [located at 10077 Holcomb Road] in
violation of the Resolution [governing the storage of junk motor and collector’s vehicles
within the Township]; and ordering the defendants to enjoin [sic] from further locating,
storing, and keeping such vehicles on the real estate.”
{¶3} On November 27, 2001, the trial court issued an Order and Journal Entry,
granting the Board of Paris Township Trustees a permanent mandatory injunction,
enjoining the Battles “from allowing or permitting any junk motor vehicle to remain on
their property or any unlicensed collector’s vehicle from remaining on their property and
stored in the open, unless such collector’s vehicles are either exhibiting current license
registration or concealed by means of a building, fence, vegetation, terrain, or other
suitable screening approved by the Paris Township Zoning Inspector or Trustees.”
{¶4} On August 20, 2010, the Board of Paris Township Trustees filed a Motion
to Show Cause, seeking an order requiring Dennis Battles to show cause why he
should not be held in contempt of the trial court’s November 27, 2001 Order: “the
Defendant has again located junk motor vehicles and/or unlicensed collector’s vehicles,
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or collector’s vehicles that fall within the designation of a junk motor vehicle, in plain
view on the subject real property.”
{¶5} On June 2, 2011, and July 14, 2011, hearings were held before a
magistrate on the Board of Trustees’ Motion to Show Cause.
{¶6} On November 18, 2011, a Magistrate’s Decision was issued. The
magistrate made the following relevant findings:
The history between the parties goes back to an order by Judge
Martin in Case Number: 1992 CV 0913, which found the Defendants were
not operating a junk yard * * * [and that] thirteen vehicles[,] one bus, one
rare car chassis and other [miscellaneous] parts * * * were “collector’s
vehicles” * * * [and] exempt from the zoning ordinance.
***
10077 Holcomb Road is approximately 1.1 acres. The Defendant
has a residence and outbuildings on the realty.
There are 31 vehicles in the open area of the property with partial
vehicle chassis and spare parts throughout the property.
***
The Magistrate defines a collector’s vehicle as any vehicle that can
be registered and receive historical plates or collector’s plates under the
laws of the State of Ohio or defined a vehicle that is defined [sic] as a
“collector’s vehicle” by a major trade association or group. A collector’s
vehicle for the purpose of this Court’s Order must not only be registered
and have historical or collector plates, but also must be “street worthy”,
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that is the vehicle must be capable of being lawfully driven on the streets
of the State of Ohio.
The magistrate finds that all 13 vehicles * * * referred to in the
Court’s Order (Judge Martin’s) of July 8, 1993, are deemed to be
collector’s vehicles inclusive of the race [car] chassis. The Magistrate
further finds the 1929 Dorant, 1957 Chevrolet, 1968 Corvette body, and
the 1985 Corvette, shall be deemed collector’s vehicles. All other vehicles
on the property must follow the definition of collector’s vehicle as defined
in the paragraph above.
{¶7} Both parties filed objections to the Magistrate’s Decision.
{¶8} On April 11, 2012, the trial court issued an Order and Journal Entry,
overruling the objections to the Magistrate’s Decision. The court ordered as follows:
Defendant, Dennis Battles, may keep no more than 15 collector’s vehicles
(no parts) in open areas behind his residence. That the collector’s
vehicles must be in lines or columns with the area clear of vegetation and
mowed (minimum [sic] grass height four inches), so the zoning inspector
may periodically review the vehicles to determine whether they have been
assessed to be collector’s vehicles. The zoning inspector shall keep a
record of all vehicles which the parties agree are collector’s vehicles and
provide a copy of the same to the Defendant. * * * [T]hat the Defendant *
* * has 45 days to comply with this Order, from the date of filing of the
Order (regardless of the weather). * * * [T]hat the Defendant * * * may not
have any automobile parts or auto bodies, other than 15 collector’s
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vehicles ordered above, on the property unless housed in an enclosed
structure. * * * A compliance hearing shall be scheduled within 90 days to
determine whether the Defendant, Dennis Battles, is in compliance with
this Court’s Order.
{¶9} On May 14, 2012, Battles filed a Notice of Appeal from the April 11, 2012
Order.
{¶10} On July 16, 2012, this court dismissed the appeal as untimely. Bd. of
Paris Twp. Trustees v. Battles, 11th Dist. Portage No. 2012-P-0048, 2012-Ohio-3192.
{¶11} On December 3, 2012, a compliance hearing was held.
{¶12} On March 6, 2013 a Magistrate’s Decision was issued. The magistrate
adopted a list of vehicles “that are collector’s or historical vehicles that are ‘street
worthy’” and ordered Battles to comply with the court’s April 11, 2012 Order within 45
days.
{¶13} Both parties filed objections to the Magistrate’s Decision.
{¶14} On August 20, 2013, the trial court issued an Order and Journal Entry,
overruling the parties’ objections to the Magistrate’s Decision. The court reaffirmed that
Battles had 45 days within which to comply with the April 11, 2012 Order. The court
ordered that “the Defendant shall be fined $100.00 per day for non-compliance with the
Court’s prior Order starting from the date of April 21, 2013, however, Defendant may
purge himself of the contempt and fine by coming in compliance with the April 11, 2012
Order within 45 days of the filing of this Order.”
{¶15} On September 18, 2013, Battles filed a Notice of Appeal. On appeal,
Battles raises six assignments of error.
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{¶16} “[1.] The Trial Court committed prejudicial error by allowing Plaintiff’s
request to enter Appellant’s land for inspection under Rule 34.”
Subject to the scope of discovery provisions of Civ.R. 26(B) [providing for
the discovery of “any matter, not privileged, which is relevant to the
subject matter involved in the pending action”], any party may serve on
any other party a request to produce and permit the party making the
request, * * * to enter upon designated land or other property in the
possession or control of the party upon whom the request is served for the
purpose of inspection and measuring, surveying, photographing, testing,
or sampling the property or any designated object or operation on the
property.
Civ.R. 34(A).
{¶17} “Trial court decisions on discovery matters like this are generally reviewed
under an abuse-of-discretion standard.” State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d
339, 2012-Ohio-4699, ¶ 19.
{¶18} In the present case, the Board of Paris Township Trustees motioned the
trial court on two occasions (September 10, 2010, and April 1, 2011) pursuant to Civil
Rule 34(A), and on a third occasion (November 7, 2012) without reference, to enter onto
Battles’ property for the purposes of “inspecting and photographing motor vehicles and
junk motor vehicle[s] and other junk and debris in an effort to determine whether the real
property is in compliance with the previous order of [the] Court.” On a fourth occasion
(January 7, 2013), the Board requested permission to enter Battles’ property “to
determine whether the * * * motor vehicles contended to be collector’s/historical vehicles
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are in fact registered, and have valid plates, and are street worthy and capable of being
driven on the streets in Ohio.”
{¶19} Battles argues the trial court erred by granting these requests and that the
scope of permissible discovery should have been limited to interrogatories and “vehicles
in plain view.”
{¶20} We find no abuse of discretion. The subject matter of the Board of
Trustees’ Motion to Show Cause was Battles’ compliance with the trial court’s
November 27, 2001 Order. The best evidence of Battles’ compliance, or lack thereof,
was obtained by granting the zoning inspector access to the property.
{¶21} The first assignment of error is without merit.
{¶22} “[2.] The Trial Court committed prejudicial error by restricting the
Appellant’s method of storing and keeping licensed and operable collector’s vehicles on
his property.”
{¶23} Battles contends that the trial court, by restricting the methods of storing
and keeping licensed and operable vehicles on his property, violated R.C. 4513.65(A),
which provides that “[n]o political subdivision shall prevent a person from storing or
keeping, or restrict a person in the method of storing or keeping, any collector’s vehicle
on private property * * * except that a political subdivision may require a person * * * to
conceal, by means of buildings, fences, vegetation, terrain, or other suitable obstruction,
any unlicensed collector’s vehicle stored in the open.”
{¶24} This court is without jurisdiction to consider Battles’ argument. The Order
and Journal Entry restricting his ability to store and keep licensed and operable vehicles
on his property was issued on April 11, 2012. This decision was not timely appealed
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and has become final. The Order that is the subject of the present appeal concerns
Battles’ compliance with the April 11, 2012 Order. Battles may not challenge the
substance of the April 11, 2012 Order by appealing the subsequent compliance Order.
Compare Lundy v. Lundy, 11th Dist. Trumbull No. 2012-T-0100, 2013-Ohio-3571, ¶ 34
(“when considering an appeal from a trial court’s finding of contempt, the appellant
cannot raise as a defense challenges to the merits of the underlying order from which
the appellant did not directly appeal”).
{¶25} The second assignment of error is without merit.
{¶26} “[3.] The Trial Court committed prejudicial error by ordering that Appellant
may keep no more than fifteen collector’s vehicles behind his residence.”
{¶27} “[4.] The Trial Court committed prejudicial error by requiring grass be kept
at a minimum [sic] of four inches in height to facilitate allowing the Zoning Inspector
access to Appellant’s private property anytime.”
{¶28} As with his second assignment of error, Battles is challenging the
substance of the April 11, 2012 Order and Journal Entry. For the reasons stated above,
this Order has become final and may not be challenged in the present appeal.
{¶29} The third and fourth assignments of error are without merit.
{¶30} “[5.] The people inspecting the Appellant’s collector’s vehicles were
prejudicial and biased and even though the collector’s vehicles were able to run and
move, they still found things so they could claim it was a junk vehicle.”
{¶31} In this assignment of error, Battles argues the trial court erred by “ruling on
the word of the Prosecutor” at the July 14, 2011 hearing, despite the presentation of
“Expert Witnesses to testify in favor of Appellant.”
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{¶32} On July 14, 2011, a hearing was held before a magistrate on the Board of
Paris Township Trustees’ Motion to Show Cause as to whether Battles was in
compliance with the November 27, 2001 Order and Journal Entry. Following the
hearing, the magistrate made a determination that certain vehicles on Battles’ property
were collector’s vehicles. Both parties filed objections to the Magistrate’s Decision. As
noted by the trial court in its April 11, 2012 Order and Journal Entry adopting the
Magistrate’s Decision, neither party filed a transcript of the proceedings in support of
their objections.
{¶33} Battles’ argument fails for two reasons.
{¶34} First, appellate review of the magistrate’s factual findings following the
July 14, 2011 hearing is precluded by the failure to file a transcript in support of
objections with the trial court. “When a party objecting to a referee’s report has failed to
provide the trial court with the evidence and documents by which the court could make
a finding independent of the report, appellate review of the court’s findings is limited to
whether the trial court abused its discretion in adopting the referee’s report, and the
appellate court is precluded from considering the transcript of the hearing submitted
with the appellate record.” State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio
St.3d 728, 730, 654 N.E.2d 1254 (1995); Zupan v. Zupan, 5th Dist. Ashland No. 13-
COA-006, 2013-Ohio-2629, ¶ 10 (“[w]hen the objecting party fails to provide a transcript
of the original hearing before the magistrate for the trial court’s review, the magistrate’s
findings of fact are considered established and may not be attacked on appeal”).
{¶35} Second, the substance of the April 11, 2012 Order and Journal Entry may
not be challenged in the present appeal for the reasons stated above.
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{¶36} The fifth assignment of error is without merit.
{¶37} “[6.] Failure to recognize a June 2[4], 2005 Court ruling (Defendant[’]s
Exhibit C) that Appellant was in substantial compliance with Court Order of November
27, 2001.”
{¶38} Battles argues that the case should have been dismissed by virtue of a
June 24, 2005 filing by the Board of Paris Township Trustees, withdrawing its May 31,
2005 Motion to Show Cause for the reason “that the Defendant and the subject property
are now in substantial compliance with this Court’s Order of November 27, 2001.”
{¶39} The present appeal ultimately derives from the Board of Trustees’ August
26, 2010 Motion to Show Cause. Battles’ compliance with the November 27, 2001
Order in 2005 neither absolved him of the obligation to remain in compliance thereafter
nor prevented the Board of Trustees from seeking a judicial determination as to his
compliance in 2010.
{¶40} The sixth assignment of error is without merit.
{¶41} For the foregoing reasons, the August 20, 2013 Order of the Portage
County Court of Common Pleas, finding Battles in contempt of its April 11, 2012 Order,
is affirmed. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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