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Board of Health of Cuyahoga County v. Petro

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 30, 2017

BOARD OF HEALTH OF CUYAHOGA COUNTY, OHIO PLAINTIFF-APPELLEE
v.
TERESA MARIA PETRO DEFENDANT-APPELLANT

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-785400

          APPELLANT Teresa Marie Petro, pro se

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Brian Gutkoski Assistant County Prosecutor Thomas P. O'Donnell

          BEFORE: Keough, A.J., E.A. Gallagher, J., and McCormack, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

         {¶1} Plaintiff-appellant, Teresa Petro, appeals from the trial court's order finding her in contempt of court. For the reasons that follow, we reverse the contempt order and remand to the trial court to conduct a contempt hearing in open court.

         {¶2} In August 2010, Petro was notified of the requirement to abandon the use of her septic tank and connect to the public sanitary sewerage system that was now accessible to Petro's residence in Strongsville, Ohio. She did not comply with this notification.

         {¶3} In June 2012, the Board of Health of Cuyahoga County ("BOH"), filed a complaint for injunctive relief against Petro seeking a permanent injunction, mandating that she abandon the use of the septic sewer system and connect to the sanitary sewerage system that was now accessible to her dwelling. In September 2012, Petro, pro se, filed an answer, admitting that (1) her property is currently using a septic system, and (2) she has been notified about the existence of the sanitary sewerage system. However, Petro denied that she is not in compliance with law or that she is operating the existing septic system to the detriment of the health and safety of the surrounding area. She further stated that requiring her to connect to the public sanitary sewerage system will place an undue and unbearable financial burden on her.

         {¶4} On April 22, 2013, the parties entered into a consent judgment entry and order. The order stated: "d. [Petro] has voluntarily entered into and consented to the terms and conditions of this Judgment and Order." The order further provided that Petro was (1) permanently enjoined and ordered to discontinue all use of the household sewage disposal system that services the property and connect the home to the publicly available sanitary sewer system, and (2) required to take all steps necessary to cause the property to conform to the regulations and orders of the Board of Health. These actions were required to be completed within 12 months from the date of the order. The consent judgment entry acknowledged that Petro was currently unemployed, which constituted a bona fide hardship. However, the entry warned that "if the work is not completed as agreed, the Board may, after notice and a hearing before the court, order the Property to be vacated until such time as the private sewer system is abandoned and connection to the publicly available sanitary sewer system is made." No appeal was taken from this order.

         {¶5} Three years later, in March 2016, the BOH filed a motion to show cause why Petro should not be held in contempt for failing to comply with the April 22, 2013 consent judgment entry and order. Petro opposed the motion but admitted that she failed to comply with the court order due to ongoing financial hardship. Additionally, she challenged the necessity of compliance, contending that her septic system is not toxic or harmful, and that other homes in her area have not been required to connect to the public sanitary sewerage system.

         {¶6} On April 21, 2016, the trial court issued an order that stated: "Contempt hearing held 4/19/16. All parties were present." In that order, the court scheduled the matter for a status conference for June 21, 2016, and provided that prior to the date of the status conference, Petro was ordered to either (1) apply for a loan to complete the work on the septic system, or (2) begin work on the property, and obtain proper permits, to complete the agreed upon work. The court also granted Petro the authority to seek bids for the sale of the property or take out a loan on the property to facilitate the resolution of the matter. The order further warned Petro that if she "fails to find an appropriate resolution within the 60 days before the status conference, she will be found in contempt of court and sanctions may apply."

         {¶7} On June 30, 2016, the trial court issued an order that stated: "Contempt hearing held 6/21/16. All parties were present." In its June 30, 2016 order, the trial court noted that Petro did not comply with the court's April 22, 2016 written order; thus, Petro was found in contempt. The court's order stated "See separate entry."

         {¶8} On August 2, 2016, the trial court issued the "separate entry" finding Petro in contempt of court pursuant to R.C. 2705.02 for failing and refusing to comply with the ...


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