Wallace v. Nally

Citation: 2015 Ohio 4146Docket: 14 CO 32

Court: Ohio Court of Appeals; October 2, 2015; Ohio; State Appellate Court

Original Court Document: View Document

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Dennis Scott Wallace appealed the decision of the Environmental Review Appeals Commission (ERAC), which dismissed his case for failure to prosecute after he indicated that he could not proceed without specific documents that the Commission denied. While he did not contest the dismissal itself, his appeal centered on the Commission's refusal to compel document production and allow access to a waste facility for water sampling.

The background involves Wallace's complaints filed with the Ohio Environmental Protection Agency (Ohio EPA) in 2010, alleging illegal discharges from Penn-Ohio Waste, LLC into a waterway. The Ohio EPA investigated and ultimately dismissed his complaints, concluding that the facility was compliant with its operating permit and that no adverse impact on groundwater quality had occurred from waste disposal activities. Wallace subsequently filed an appeal with ERAC, asserting several errors related to the EPA's testing methods and the facility's compliance with regulations.

His specific assignments of error included concerns over the timing and methods of water sampling, claims of false information submitted by EPA personnel, and issues regarding the expansion of landfill operations over an earthquake fault and into an aquifer, which he argued posed health and safety risks. The court affirmed the Commission's decision.

The Director and Tervita filed answers in the proceedings, with a case management schedule set for a de novo hearing in February 2014, as stipulated by R.C. 3745.05(A). Appellant submitted requests for document production by the October 18 discovery deadline, focusing on the site’s hydrology, water testing, permits, and related information. On October 28, 2013, Appellant requested the Commission to close a dump site, proposing it be used as a burial site for unidentified victims of the 9/11 disaster, claiming that debris from Ground Zero might have been dumped there. He also requested documents concerning 9/11 material brought to the Negley site, certifying that his request was served on October 24, 2013, and inscribing "NUNC PRO TUNK 10/18/2013" above his signature. The Director countered that Appellant's request could not be deemed timely due to the misapplication of "nunc pro tunc" and described the request as unclear and outside his obligation to respond. Tervita added that the sought information was irrelevant to the appeal and highlighted that most World Trade Center debris was taken to a Staten Island landfill where human remains were recovered and buried properly. On October 30, 2013, the Commission interpreted Appellant’s filings as motions and denied them. Appellant filed for reconsideration on November 7, citing the permit's requirement to prevent nuisances and pollution, arguing that the alleged dumping of body parts posed a hazard. He requested proof of unidentified bodies sent to Youngstown, Ohio, before being dumped at the Negley site. The Commission denied his reconsideration motion on November 14 but granted a continuance of the case schedule due to the medical condition of Appellant’s expert witness. On November 25, 2013, Appellant filed another document request covering the entirety of the dump's operational history, noting the Director's inspection rights. On December 9, 2013, Appellant moved to compel Tervita to produce all relevant documents from the site's inception, citing Tervita's denial of his earlier requests, and filed a similar motion against the Director, who replied that the Ohio EPA lacked documentation of the material delivered to the facility.

The Commission denied Appellant's motions to compel on December 11, 2013, and subsequently denied his request for reconsideration and for judgment on December 24, 2013. Appellant filed a notice of appeal on January 8, 2014, which was dismissed by the court for lack of a final appealable order. A new case management schedule was imposed on February 26, 2014, despite Appellant's objections regarding the inability to proceed without requested discovery. The Commission warned that failure to adhere to the schedule could result in dismissal for want of prosecution.

On the same day, Appellant filed a motion to keep discovery open and another motion to compel document production, which the Commission denied on March 18, 2014, marking the seventh such motion submitted. The Commission determined the requested documents were not relevant to the case, which focused on the Director's response to three verified complaints, and reiterated that a party is not required to produce documents not maintained. Appellant expressed he could not proceed without the documents and intended to appeal the discovery orders later.

He made multiple filings seeking to stay the case management schedule and opposed deposition notices due to the lack of requested documents, all of which were denied. Appellant also submitted a request to enter Tervita's property for sampling, which Tervita objected to on grounds of relevance and procedural impropriety. On April 21, 2014, Appellant filed another motion seeking access to the property for water testing, which met with Tervita's continued objections. When Appellant attempted to enter the facility with a biologist for sampling, he was denied access.

On May 13, 2014, the Commission denied Appellant's motion to compel Tervita to grant access to its facility. Following this, Appellant filed an objection on May 22, 2014, seeking permission to access the property for testing streams, which he claimed was necessary for his case. This objection was denied on May 27, 2014. On June 6, 2014, Appellant notified the Commission that he could not proceed without the requested discovery and urged the Commission to issue a final order for his appeal to the court. In response, Appellees submitted a joint motion to dismiss, asserting that they had complied with all obligations and that the documents requested by Appellant either did not exist or could not be produced. They requested the dismissal be classified as voluntary or for want of prosecution.

Appellant opposed this motion, alleging that Appellees' claims regarding the non-production of documents were false. He emphasized the necessity of discovery regarding materials brought to the dump for his case and indicated that his expert could not be deposed without it. On July 2, 2014, the Commission dismissed the appeal for want of prosecution, noting Appellant's inability or unwillingness to pursue the matter and summarizing his failed discovery requests as lacking justification for leading to admissible evidence.

The excerpt also references Appellant's previous appeal from interlocutory orders, which was dismissed with the understanding that an appeal would be accepted only after a final order. Appellant filed a timely notice of appeal within thirty days of the Commission's final decision, as allowed under R.C. 3745.06. This appeal, stemming from a verified complaint under R.C. 3945.07, was deemed correctly filed in the district where the alleged violation occurred. The appeal was subject to a review standard assessing whether the Commission's order was supported by reliable evidence and lawful, with all dismissals by the Commission noted to be with prejudice.

An appellant who fails to pursue an appeal or comply with applicable rules may have their appeal dismissed by the commission for lack of prosecution, either upon motion by the appellee or by the commission itself, following notice to the appellant. The standard for reviewing such dismissals is an "abuse of discretion" standard, which is heightened if the dismissal is with prejudice. Factors considered include whether the appellant has acted deliberately in a dilatory manner or has a history of failing to respond to discovery requests. In this case, the appellant did not challenge the dismissal for lack of prosecution but instead raised four errors related to the commission's denial of document production and property access for water testing. The appellate director noted that the appellant's arguments were primarily based on discovery rulings and deemed them irrelevant to the dismissal grounds. Previous attempts by the appellant to appeal interlocutory orders were deemed non-final; thus, they could only be reviewed after final judgment. Interlocutory orders can merge into final judgments, allowing for their review upon appeal of the final judgment, although some interlocutory orders may cease to exist following the final order. Additionally, if a final order is based on failure to prosecute, it creates an exception to the general rule regarding the appealability of interlocutory orders.

Interlocutory orders do not merge into a judgment of dismissal for failure to prosecute, making them non-appealable in such cases. Courts, including Arndt v. P&M Ltd. and DuBose v. Minnesota, support this view, emphasizing that if the denial of class certification leads to a dismissal for failure to prosecute, that ruling remains separate for appellate review. The principle discourages rewarding parties for dilatory tactics and prevents undermining the finality of judgments. Dismissals for failure to prosecute render prior interlocutory rulings moot, as highlighted in Hughley v. Eaton Corp. and Arndt. The ability to challenge interlocutory orders post-dismissal would invite excessive appeals and disrupt trial court efficiency. Appellants contesting prior interlocutory rulings without challenging the dismissal itself find their issues moot, as established in State ex rel. Gaylor, Inc. The court ultimately considers the appellant's assignments of error for his benefit, despite their moot status.

Assignments of Error One through Three involve Appellant Dennis Scott Wallace's appeal concerning the denial of his discovery requests by the Environmental Review Appeals Commission. The Appellant argues that the Commission erred by not compelling the Director of Environmental Protection and Tervita to produce documents related to the operation of Tervita's waste facility in Negley, Ohio, specifically concerning materials, including 'Blood and Body Parts,' allegedly brought to the facility. He claims that Tervita's license requires compliance with document inspection requests and that the refusal to provide requested bills of lading, invoices, and related documents violated Ohio Administrative Code (O.A.C.) 3746-6-08, which governs motions to compel discovery.

Wallace asserts that Tervita’s response, stating it had no such documents, is not credible, and he believes the Director has an obligation to retrieve relevant documents from Tervita. He contends that the Commission's denial of his motion to compel discovery infringes upon his rights under O.A.C. 3746-6-08(A), arguing that such motions cannot be denied once filed. However, it is noted that the Commission has discretion to grant or deny these motions. Additionally, while Wallace references Ohio court rules, the document clarifies that the Commission has specific discovery rules that differ from the Civil Rules. The text concludes with Wallace's request for the court to order the closure of the dump facility and convert it into a park as a memorial for those affected by 9/11.

A reviewing court evaluates discovery rulings solely for abuse of discretion, which involves determining if a decision was unreasonable, arbitrary, or unconscionable. The court clarified that neither the court nor the Commission is obligated to grant a motion to compel simply because it is filed; they have broad discretion in such matters. In this case, the Commission did not abuse its discretion in denying the Appellant's requests for documents aimed at proving that debris from the World Trade Center was buried at a facility and supporting the closure of that facility as a memorial. The requests were deemed untimely according to the established case management schedule, and the Appellant failed to seek permission to reopen discovery.

The Appellant's motion included a pre-dated signature that contradicted the actual timeline of events, and his later requests were even more delayed. The requests focused on investigating whether human remains from 9/11 victims were disposed of at the site, but the Appellant did not clearly specify the particular ruling he was challenging, which was to his detriment. The Commission reasonably concluded that the sought information was not likely to lead to admissible evidence or was not relevant to the appeal's subject matter. The appeal was centered on allegations of improper discharge of fluids from a landfill, not the World Trade Center theory, which was not included in the notice of appeal or prior complaints.

Furthermore, the Commission was informed that Tervita had no evidence linking World Trade Center material to its facility and highlighted that most debris was processed on Staten Island, where extensive efforts were made to recover human remains. The Commission had the discretion to assess the credibility of the non-movant's claims. The Appellant's first three assignments of error were ultimately overruled.

Appellant’s fourth assignment of error claims that the Environmental Review Appeals Commission erred by denying expert Dennis Scott Wallace access to the Tervita Dump Facility for testing streams and seeps. Appellant argues he had a right to enter the property under the discovery process to test for contaminants and discern whether the referred 'seeps' were actually streams. Although he served two requests for water testing documents in October 2013, he only sought property access in March 2014, framing his request for macroinvertebrate sampling. An additional request made on April 21, 2014, did not clarify his intent to prove a seep was a stream. Tervita contended the request was vague and untimely, lacking relevance to the appeal, and the commission noted that discovery provisions did not include land entry for inspection. The commission highlighted that Appellant’s requests did not meet procedural requirements for discovery motions, lacking necessary explanations, affidavits, and compliance with O.A.C. 3746-6-08(B). Consequently, the commission did not abuse its discretion in denying Appellant’s request, and the decision to dismiss for failure to prosecute was upheld.