Summary
stating doctrine of waiver is "applicable to all rights and privileges" and that party can waive right to appeal "when provided with the opportunity to revise the proposed language in the Settlement Agreement."
Summary of this case from Iron Workers Ins. Fund v. Philip Morris, Inc.Opinion
No. 90-69
Submitted December 19, 1990 —
Decided February 13, 1991.
Environmental Protection Agency — Appellate procedure — Party aggrieved by order may waive the discretionary right to appeal provided by R.C. 3745.06.
O.Jur 3d Environmental Protection § 18.
A party aggrieved by an order from the Director of Environmental Protection may validly waive the discretionary right to appeal provided by R.C. 3745.06.
APPEAL from the Court of Appeals for Jackson County, No. 594.
In 1984, appellee, Sanitary Commercial Services, Inc. ("SCS"), operated both sanitary landfills in Jackson County. Jon Gregory Fields was SCS's president and its sole owner. On September 18, 1984, Stephan Hamlin, Unit Supervisor for the Southeastern District Office of the Ohio Environmental Protection Agency ("OEPA"), issued a notice of violation to the Jackson County Combined General Health District ("Jackson County"), the agency initially responsible for enforcing Ohio environmental laws and regulations governing landfills in Jackson County. That notice indicated that an OEPA survey revealed that Jackson County had failed to enforce those laws and regulations in relation to SCS. The notice also indicated that OEPA would conduct another survey in one hundred eighty days to determine if Jackson County had remedied the deficiencies in its programs. OEPA resurveyed Jackson County's enforcement programs on May 24, 1984 and on September 11, 1984 and found that Jackson County had remedied most of the violations found at SCS's two landfills. However, it appeared that the landfills continued to exceed their approved vertical and horizontal boundaries. Additionally, it appeared that Jackson County refused to initiate any enforcement action against SCS for these alleged violations and that Jackson County refused to ask SCS to provide detailed topographic maps to allow OEPA to make a conclusive determination regarding these alleged violations.
After the resurveys had been conducted, the Director of Environmental Protection determined that Jackson County had failed to remedy the defects in its enforcement program and issued his Final Findings and Orders removing Jackson County from the list of Ohio health districts approved to administer and enforce solid waste disposal programs, pursuant to R.C. 3734.08 and Ohio Adm. Code 3745-37-08.
Jackson County filed an appeal from the Director's Final Findings and Orders with the Environmental Board of Review ("EBR") on May 14, 1985. On September 18, 1985, the Director filed a motion to join Fields, as President of SCS, as an indispensable party to Jackson County's appeal. This motion was based upon the fact that SCS operated the landfills which were the focus of the Jackson County appeal. The EBR granted this motion on September 19, 1985.
It was at this point that Fields joined the OEPA and Jackson County in negotiations to draft a settlement agreement to resolve the disputes among these parties. Pursuant to these negotiations, the parties executed a Settlement Agreement on November 27, 1985.
Among the provisions of the agreement were the following: Jackson County agreed to withdraw its appeal with prejudice, whereupon the Director of Environmental Protection agreed to revoke his April 15, 1985 Findings and Orders and to reinstate Jackson County on the approved list of health enforcement districts pursuant to Ohio Adm. Code 3745-37-08. Fields, as president of SCS, agreed to abide by several conditions and milestone dates in operating the landfills. These included: contracting with a consulting engineer by September 17, 1985; conducting a preliminary site evaluation by November 1, 1985; submitting hydrogeological studies of the landfill site to OEPA by March 3, 1986, subject to a possible ninety-day extension in case of inclement weather; submitting preliminary engineering plans to OEPA by September 1, 1986; submitting a complete Permit to Install application and final plans by March 1, 1987; and initiating operation in accordance with an approved Permit to Install and closing those areas not included in or approved by the Permit to Install in accordance with Ohio Adm. Code 3745-27-10 within sixty days of the agency approval date.
The agreement went on to state that Fields would be allowed to operate the landfills in accordance with the boundaries as originally approved by the Ohio Department of Health ("ODOH") until the Permit to Install was either approved or disapproved, or until Fields missed a milestone date. The parties also agreed that if Fields failed to meet a milestone date, the Director could elect to remove Jackson County from the approved list of health enforcement districts. As well, Jackson County waived its right to appeal such removal.
Also contained within the agreement was the provision that if Fields missed any milestone date, the Director could elect to issue enforcement findings and orders to Fields to deal with these violations. Fields waived "* * * his right to contest the [lawfulness] and reasonableness of [the] Director's Findings and Orders before the Environmental Board of Review or any court of competent jurisdiction."
Pursuant to the above agreement, Jackson County withdrew its appeal to the EBR on November 27, 1985.
On April 20, 1987, OEPA conducted an inspection of the landfills as part of its annual survey of the health district and informed Jackson County by a May 5, 1987 letter of the existence of a number of violations. These included the following: Fields had allowed the landfill to exceed approved elevations, had failed to control and collect leachate, had failed to properly spread and compact waste materials, had failed to apply daily and final cover, and had failed to use approved cover material.
On August 20, 1987, the Director issued final findings and orders requiring Fields to begin shutting down the landfills immediately. The Director based his action upon the existence of the above violations, upon the fact that Fields had failed to submit a hydrogeological study or a completed Permit to Install within the time limits specified in the Settlement Agreement, and upon the fact that Fields had failed to operate the landfills within the ODOH-approved boundaries as specified in the Settlement Agreement.
From these final findings and orders, SCS appealed to the EBR on September 10, 1987. The Director filed a motion to dismiss on June 13, 1988, citing SCS's waiver of appeal in the Settlement Agreement. After receiving a full briefing from the parties and after conducting an extensive hearing, the EBR issued its Findings of Fact, Conclusions of Law and Final Order. The EBR concluded that R.C. 3745.04 granted SCS a discretionary right to appeal from the Director's action. The EBR additionally concluded that SCS had validly waived this right to appeal, since the record demonstrated that the parties knowingly entered into the Settlement Agreement and had knowingly surrendered valuable rights in exchange for certain other valuable rights. Accordingly, the EBR granted the Director's motion to dismiss on August 17, 1988.
SCS appealed the EBR decision to the Court of Appeals for Jackson County, per R.C. 3745.06, on September 19, 1988. The appellate court noted that R.C. 3745.04 grants to an affected party the right to appeal an order of the Director of Environmental Protection. Because the court found that right to bring irregularities before the EBR or before a court of competent jurisdiction to be "* * * too important to be waived by agreement with the director * * *," the court reversed the EBR's decision and remanded the cause to the EBR for review on the merits.
SCS also appealed to the Court of Appeals for Franklin County, pursuant to R.C. 3745.06, in September 1988. SCS subsequently filed a motion to dismiss that appeal, which was granted.
The cause is before the court upon an allowance of a motion to certify the record.
Arter Hadden, Richard P. Fahey, Martin H. Lewis and R. Stacy Lane, for appellee.
Lee I. Fisher, attorney general, Paula T. Cotter and Retanio A. Rucker, for appellant.
This case presents the question of whether an aggrieved party, who is entitled to a discretionary appeal from an order of the director of a state agency, may waive that right to appeal under the following conditions: where the aggrieved party knew of the right to appeal, intended to waive that right, and gave and received sufficient consideration for waiving that right. We answer this question in the affirmative. For the reasons stated below, we reverse the judgment of the court of appeals and reinstate the decision of the EBR.
I
In order to determine whether the Settlement Agreement contained a valid and enforceable waiver of Fields' and SCS's right to appeal from the Director of Environmental Protection's shutdown order, we must first ascertain whether an aggrieved party under these circumstances should ever be permitted to waive the right to appeal. "As a general rule, the doctrine of waiver is applicable to all personal rights and privileges, whether secured by contract, conferred by statute, or guaranteed by the Constitution, provided that the waiver does not violate public policy." State, ex rel. Hess, v. Akron (1937), 132 Ohio St. 305, 307, 8 O.O. 76, 77, 7 N.E.2d 411, 413. See State, ex rel. Ford, v. Bd. of Edn. (1943), 141 Ohio St. 124, 25 O.O. 241, 47 N.E.2d 223. From early in this state's history, we have held that a party participating in a consent judgment will not be allowed to appeal errors from that judgment. Wells v. Warrick Martin Co. (1853), 1 Ohio St. 386, paragraph one of the syllabus; Jackson v. Jackson (1865), 16 Ohio St. 163, paragraph one of the syllabus, citing Wells, supra.
This court has permitted a party to a criminal proceeding to waive a number of substantial rights. In State v. Frohner (1948), 150 Ohio St. 53, 37 O.O. 406, 80 N.E.2d 868, paragraph one of the syllabus, we allowed the accused to waive the right to trial by jury. In State v. Greer (1988), 39 Ohio St.3d 236, 240, 530 N.E.2d 382, 390-391, a homicide suspect was allowed to waive not only his right to avoid making potentially incriminating statements to police, but also to waive his right to refuse entry to police for a warrantless search. This court allowed the accused to waive the right to exclude improper testimony in State v. Lancaster (1971), 25 Ohio St.2d 83, 86-88, 54 O.O. 2d 222, 223-225, 267 N.E.2d 291, 293-295.
This court has also permitted a party to a civil proceeding to waive a number of important rights. For example, we upheld a debtor's waiver of his right to select, and hold as exempt, property in an insolvency proceeding in Butt v. Green (1876), 29 Ohio St. 667. In that case, we stated, "[w]here a statutory right is personal, it may be waived by the party for whose benefit it was intended." Butt, supra, at 670. We also recognized the right of claimants to waive the right to a jury trial to determine the amount of State Insurance Fund awards in State, ex rel. Yaple, v. Creamer (1912), 85 Ohio St. 349, 97 N.E. 602, and recognized that a party may waive the right to challenge jurors in Butt, supra, at 670-671. In Scott v. Columbus (1923), 109 Ohio St. 193, 142 N.E. 25, we upheld waivers by separate landowners to have their parcels individually appraised in a municipal appropriation case. Recently, in Knapp v. Knapp (1986), 24 Ohio St.3d 141, 24 OBR 362, 493 N.E.2d 1353, we recognized that a couple seeking a dissolution of their marriage waived their right to challenge the trial court's dissolution decree, except as statutorily permitted.
In the case before us, waiving the discretionary appeal provided in R.C. 3745.06 of the Director's order surely creates no more adverse impact upon an aggrieved party than did the waivers outlined above. Further, nothing in the Ohio Constitution or in R.C. Chapter 3745 governing the OEPA bars such a waiver. Therefore, we hold that a party aggrieved by an order from the Director of Environmental Protection may validly waive the discretionary right to appeal provided by R.C. 3745.06.
II
Because we have found that Fields and SCS could have validly waived their right to appeal the Director's order, we will next determine whether Fields and SCS did in fact conclusively waive that right. As stated above, Fields and SCS participated in settlement negotiations and were provided with the opportunity to revise the proposed language in the Settlement Agreement. Additionally, Fields and SCS were represented by counsel at these negotiations; indeed, their counsel was one of the signatories to the Settlement Agreement. Finally, because Fields operated landfills in Jackson County since at least 1972 and held an Ohio EPA Solid Waste Disposal License, he was on constructive notice as to Ohio statutes and regulations governing sanitary landfills.
Thus, we find no threshold violation of Fields' and SCS's due process rights in enforcing this Settlement Agreement and proceed to examine the language of the agreement itself to determine what rights and responsibilities the parties created in the agreement.
"In construing any written instrument, the primary and paramount objective is to ascertain the intent of the parties. The general rule is that contracts should be construed so as to give effect to the intention of the parties." Aultman Hosp. Assn. v. Community Mut. Ins. Co. (1989), 46 Ohio St.3d 51, 53, 544 N.E.2d 920, 923; Employers' Liability Assurance Corp. v. Roehm (1919), 99 Ohio St. 343, 124 N.E. 223, 7 A.L.R. 182, syllabus; Skivolocki v. East Ohio Gas Co. (1974), 38 Ohio St.2d 244, 67 O.O. 2d 321, 313 N.E.2d 374, paragraph one of the syllabus.
Additionally, "[w]here the parties, following negotiations, make mutual promises which thereafter are integrated into an unambiguous written contract, duly signed by them, courts will give effect to the parties' expressed intentions." Aultman Hosp. Assn., supra, at 53, 544 N.E.2d at 923; Henderson-Achert Lithographic Co. v. John Shillito Co. (1901), 64 Ohio St. 236, 252, 60 N.E. 295, 298. See, also, Charles A. Burton, Inc. v. Durkee (1952), 158 Ohio St. 313, 49 O.O. 174, 109 N.E.2d 265.
As stated above, the Settlement Agreement allowed the OEPA to elect to issue enforcement findings and orders if Fields and SCS missed a milestone date. It is crystal clear that Fields missed the milestone dates requiring Fields to timely submit to OEPA hydrogeological studies and a Permit to Install Application. Thus, the Director had the authority to issue his order for Fields and SCS to begin a shutdown of the landfills.
SCS asserts that by using the words "enforcement Findings and Orders" in the Settlement Agreement instead of the words "cease and desist," the parties intended that the agreement would merely permit the Director to take action short of ordering a shutdown of the landfills. This argument has no merit. "Common words appearing in a written instrument will be given their ordinary meaning unless manifest absurdity results, or unless some other meaning is clearly evidenced from the face or overall contents of the instrument." Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 7 O.O. 3d 403, 374 N.E.2d 146, paragraph two of the syllabus. Since the parties chose to use the words "enforcement Findings and Orders" and a rational interpretation of those words would require the Director to proceed in the manner in which he did, we find the Director's action to have been within the scope of the agreement.
Finally, we note that the Settlement Agreement was supported by sufficient consideration to be enforceable. Fields and SCS surrendered their rights to appeal from the Director's order and gained the opportunity to expand their landfill activities through the Permit to Install application process. The OEPA surrendered its right to sanction Fields and SCS for then-existing violations of statutes and regulations governing landfills. Conversely, the OEPA gained the ability to issue orders at a future date upon the recurrence of specified conditions without the necessity of defending its actions through protracted appellate litigation.
Generally, an aggrieved party may waive a right to appeal an order of the OEPA in exchange for other consideration. Specifically, Fields and SCS waived their appeal rights in the Settlement Agreement. Therefore, we reverse the judgment of the court of appeals and reinstate the decision of the EBR.
Judgment reversed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, H. BROWN and RESNICK, JJ., concur.