[Cite as Lamp v. Linton,

.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: DON LAMP : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. 2011-CA-06 WILLIAM LINTON : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Cambridge Municipal Court, Case No. 10CV100216

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 21, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DON LAMP PRO SE WILLIAM LINTON PRO SE 7709 Martinsburg Road 2109 North Avenue Saint Louisville, OH 43071 Cambridge, OH 43725 [Cite as Lamp v. Linton,

.]

Gwin, P.J.

{1} Appellant, William Linton appeals the February 24, 2011 judgment entry of

the Cambridge Municipal Court overruling his objections to the December 9, 2010

decision of the magistrate.1

STATEMENT OF THE FACTS AND CASE

{2} This is a claim for misrepresentation involved in the sale of a used 1998

Dodge Dakota pick-up truck that had been advertised for sale on the internet.

{3} Appellant offered for sale a 1998 Dodge Dakota pick-up truck. The

advertisement read “Engine and transmission is out of a 1997 that was rolled…” Mr.

Lamp purchased the vehicle which was not operable. Upon further inspection the

transmission was discovered to be from a 1991 model which is not compatible with a

1998 model Dakota pick-up truck. Mr. Lamp purchased a compatible transmission for

$560.44.

{4} On October 27, 2010 Don Lamp filed a complaint with the Cambridge

Municipal Court, Small Claims Division. The case was heard before a magistrate on

December 2, 2010. After the presentation of evidence, judgment was awarded to Mr.

Lamp against appellant in the amount of $560.44 with interest at 4% from the date of

judgment, plus court costs.

{5} Appellant requested Findings of Facts and Conclusions of Law, which the

magistrate filed on December 9, 2010. On December 13, 2010 appellant filed a motion

1 Appellee did not file a brief in this matter. Guernsey County, Case No. 2011-CA-06 3

to “Set Aside the Magistrate Order.”2 On December 27, 2010 appellant filed his

“Objection to the Magistrate Decision” pursuant to Civ. R. 53 (D)(3)(b)(iii).

{6} By Journal Entry filed January 5, 2011, the trial court stated that

appellant’s motion to set aside filed December 13, 2010 “should have been titled as an

objection, which the [appellant] has seen and corrected.” The trial court further granted

the plaintiff, Don Lamp, fourteen days to respond to the objections.

{7} On January 11, 2011 appellant filed a “Motion for Extension of Time to

have Prepared and File Transcripts of the Record.” On that day, appellant also filed a

document titled, “Affidavit Pursuant to Ohio Civil Rules of Procedure 53(D)(3)(b)(iii).” On

January 12, 2011 appellant filed a “Motion for Leave to Amend Affidavit filed January

11, 2011.”

{8} On January 12, 2011, Mr. Lamp filed a written response to appellant’s

objections to the magistrate’s decision. By Journal Entry filed February 24, 2011 the trial

court noted that it, “very carefully reviewed the entire file, including the original judgment

entry, the findings of fact and conclusions of law, the items admitted into evidence and

all filings from both sides on Defendant’s objection.” The trial court found that “[c]learly

the magistrate’s decision was based on the conclusion that the [appellant] failed to

provide to the Plaintiff that which the [appellant] had represented.” The trial court

therefore upheld the decision of the magistrate finding “judgment in favor of the plaintiff

2 Civ. R. 53(D)(2) provides, in relevant part as follows, “(b) Motion to set aside magistrate's order. Any party may file a motion with the court to set aside a magistrate's order. The motion shall state the moving party's reasons with particularity and shall be filed not later than ten days after the magistrate's order is filed. The pendency of a motion to set aside does not stay the effectiveness of the magistrate's order, though the magistrate or the court may by order stay the effectiveness of a magistrate's order.” Guernsey County, Case No. 2011-CA-06 4

and against the [appellant] in the amount of $560.44, with interest at 4% per annum and

costs….”

{9} It is from the February 24, 2011 Journal Entry that appellant has timely

appealed, raising the following six Assignments of Error:

{10} “I. THE MAGISTRATE ERRORS AS A MATTER OF LAW BY ADOPTION

OF THE PLAINITFF’S [SIC.] INTERPRETATION OF THE AD AND IN EFFECT

CREATED A NEW CONTRACT BY ADDING A COMPATIBILITY CONDITION

PRESIDENT [SIC] NOT EXPRESSED IN THE CLEAR LANGUAGE EMPLOYED BY

THE DEFENDANT THE MUNICIPAL COURT ERRORS BY ADOPTING THIS ERROR

IN JUDGMENT.

{11} “II. A MAGISTRATE COMMITS ABUSE OF DISCRETION AND

REVERSIBLE PLAN ERROR BY ALLOWING HIMSELF TO BE HOODWINKED INTO

ACCEPTING A PLAINTIFF’S INTERPRETATION OF A DEFENDANT’S AD INSTEAD

OF APPLYING THE ORDINARY AND COMMON MEANING OF WORDS AND THEN

FINDING: DEFENDANT FAILED TO PROVIDE TO PLAINTIFF THAT WHICH WAS

REPRESENTED. NAMELY A 1997 TRANSMISSION WHICH DEFENDANT NEVER

ATTEMPTED TO REPRESENT OR INTENDED TO BE SO CONSTRUED. THE

MUNICIPAL COURT ERRORS BY ADOPTING THIS ERROR IN JUDGMENT.

{12} “III. LACKING SUBJECT MATTER JURISDICTION, THE SMALL CLAIMS

COURT CAN NOT FASHION A REMIDY [SIC.] THAT IS EQUITABLE RELIEF TO ALL

PARTIES AND COMMITS PLAIN ERROR IN THE INSTANT CAUSE OF ACTION;

FURTHER BY NOT RETURNING THE PERFECTLY GOOD TRANSMISSION, AND

FAILURE TO CALCULATE AND THEN OFFSET THE DEFERENCE IN COST OF A Guernsey County, Case No. 2011-CA-06 5

1998 VERSE WHAT WAS ACTUALLY SUED FOR A 1997, THE SMALL CLAIMS

COURT UNJUSTLY ENRICHES THE PLAINTIFF. AND IT IS ERROR FOR THE

MUNICIPAL COURT JUDGE TO ADOPT SUCH ERRORS IN JUDGMENT.

{13} “IV. IT IS ABUSE OF DISCRETION WHERE THE MUNICIPAL COURT

JUDGE AFTER BEING DULY NOTICED THAT CONFUSION HAS RESULTED FROM

HIS RULING, WHERE THE RULING POSSIBLY BECOMES THE HINGE PIN WHICH

INADVERTENTLY, OR NOT, SHORTENS THE TRIGGERING OF THE TIME

COMPUTATION FOR FILING TRANSCRIPTS OF THE RECORD BY 14 DAYS

LEAVING NO TIME REMAINING TO CAUSE TRANSCRIPTS TO BE TIMELY FILED;

NEVERTHELESS, FAILS TO CLAIRFY [SIC.] THE RULING.

{14} “V. MUNICIPAL COURT JUDGE COMMITS ABUSE OF DISCRETION TO

THE PREJUDICE OF DEFENDANT AND PLAIN ERROR WHERE JUDGE FAILS TO

RULE ON A TIMELY FILED MOTION FOR EXTENSION OF TIME TO HAVE

PREPARED AND FILE TRANSCRIPTS OF THE RECORD, WHERE THE COURT

CREATED THE NEED TO FILE THE MOTION IN THE FIRST INSTANT.

{15} “VI. CAN NOT MEET BURDEN OF SHOWING ERRORS IN THE

RECORD WHEN ABUSE OF DISCRETION OF THE MAGISTRATE JUDGE TO NOT

LABEL, OR MARK AS EXHIBITS OR ADMIT RELEVANT EVIDENCE INTO THE

RECORD, AND ADOPTS A MIND SET THAT THERE COULD BE NO DEFENSE

WORTHY OF VIEWING EXCEPT A SHOWING THAT IT WAS A 1997

TRANSMISSION. THE MUNICIPAL COURT ERRORS BY ADOPTING THIS

JUDGMENT.” Guernsey County, Case No. 2011-CA-06 6

IV & V

{16} For clarity and because a resolution of these issues will affect the

appellant’s remaining Assignments of Error we shall address appellant’s Fourth and

Fifth Assignments of Error first.

{17} In his Fourth Assignment of Error appellant argues the trial court

shortened the time in which he had to file a transcript of the December 2, 2010 hearing

before the magistrate in support of his objections to the magistrate’s decision. In his

Fifth Assignment of Error appellant maintains that the trial court erred by not ruling on

his motion to extend the time for filing said transcript. We disagree.

{18} Ohio Civil Rule 53 states, in pertinent part:

{19} “(D)(3)(b) Objections to magistrate's decision.

{20} “***

{21} “(iii) Objection to magistrate's factual finding; transcript or affidavit. An

objection to a factual finding, whether or not specifically designated as a finding of fact

under Civ.R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence

submitted to the magistrate relevant to that finding or an affidavit of that evidence if a

transcript is not available. With leave of court, alternative technology or manner of

reviewing the relevant evidence may be considered. The objecting party shall file the

transcript or affidavit with the court within thirty days after filing objections unless the

court extends the time in writing for preparation of the transcript or other good cause. If

a party files timely objections prior to the date on which a transcript is prepared, the

party may seek leave of court to supplement the objections.” Guernsey County, Case No. 2011-CA-06 7

{22} “(D)(4) Action of court on magistrate's decision and on any objections to

magistrate's decision; entry of judgment or interim order by court.

{23} “***

{24} “(d) Action on objections. If one or more objections to a magistrate's

decision are timely filed, the court shall rule on those objections. In ruling on objections,

the court shall undertake an independent review as to the objected matters to ascertain

that the magistrate has properly determined the factual issues and appropriately applied

the law. Before so ruling, the court may hear additional evidence but may refuse to do

so unless the objecting party demonstrates that the party could not, with reasonable

diligence, have produced that evidence for consideration by the magistrate.”

{25} Here, the magistrate's findings of facts and conclusions of law was filed on

December 9, 2010. Pursuant to Civ.R. 53(E)(3)(a), an objecting party must file his

objections to the magistrate's decision within fourteen days. Appellant complied with the

dictates of Civ.R. 53(E)(3)(a) and filed his objections, without a transcript, on December

23, 2010. By entry filed January 5, 2011, the trial court granted Mr. Lamp fourteen days

to respond to appellant’s objections. On January 11, 2011 appellant filed a request for

an extension to file the transcript. Appellant did not tell the trial court in his request

whether he had requested a transcript from the official court reporter, nor did appellant

indicate to the trial court on what date he expected the transcript to be ready for filing.

The trial court did not rule on appellant's motion and, on February 24, 2011, the trial

court filed its judgment entry adopting the magistrate's decision.

{26} We must note that a trial court's failure to rule on a motion creates a

presumption that the trial court overruled the motion. Brown v. Brown, 11th Dist. Guernsey County, Case No. 2011-CA-06 8

No.2001-L-051,

, at ¶ 33. That said, appellant's motion, when read

functionally, is a request for an extension of time to file the transcripts. Civ.R. 6(B)

allows a trial court to extend the period for filing a transcript of proceedings. See Vance

v. Rusu (Aug. 1, 2001), 9th Dist. No. 20442. A court may grant or deny an extension of

time under Civ.R. 6(B) in its sound discretion. Civ.R. 6(B).

{27} While a transcript does not need to be filed contemporaneously with

objections to a magistrate's decision, appellant's objections and his subsequent request

for an extension of time to file the transcript did not indicate a transcript was

forthcoming. We note that the trial court did not rule on appellant’s objections to the

decision of the magistrate until forty-four days after appellant had filed his request for an

extension to file the transcript. During that time period appellant filed an affidavit and an

amended affidavit but made no mention of the transcript.

{28} Given the foregoing facts, we do not think the trial court abused its

discretion when it impliedly overruled appellant's January 11, 2011 motion seeking an

extension of time to file the transcript. Our holding on this issue is based upon the

following considerations: (1) Civ.R. 53(E)(3)(c) requires a transcript or affidavit in

support of objections; (2) appellant did not ask for a specific time nor indicate to the trial

court that he had ordered a transcript and that one would be forthcoming; (3) the trial

court did not rule until sixty-three (63) days had elapse from the date appellant had filed

his objections to the decision of the magistrate. In consideration of the forgoing

appellant had nearly twice the thirty-day time limit in which he could have either filed the

transcript or requested leave of court to file the transcript. He did neither. To date no Guernsey County, Case No. 2011-CA-06 9

transcript of the December 2, 2010 hearing was ever filed, or requested to be filed, with

the trial court.

{29} Accordingly, we find that the trial court did not err in the manner in which it

handled appellant’s January 11, 2011 motion to extend time. We further find that the

trial court provided appellant ample opportunity to file the transcript before ruling upon

appellant’s objections to the magistrate’s decision.

{30} Appellant’s Fourth and Fifth Assignments of Error are overruled.

I. & II.

{31} In his First and Second Assignments of Error appellant argues that the

trial court erred by adopting appellee’s interpretation of the advertisement appellant

used to offer the truck for sale.

{32} When a party objecting to a magistrate's decision has failed to provide the

trial court with the transcript by which the trial court could make a finding independent of

the magistrate’s decision, appellate review of the court's findings is limited to whether

the trial court abused its discretion in adopting the magistrate's decision and the

appellate court is precluded from considering any transcript of the hearing submitted

with the appellate record.3 State ex rel. Duncan v. Chippewa Twp. Trustees (1995),

,

. In order to find an abuse of discretion, we 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 (1983),

,

. We must look at the totality of the circumstances in the

3 In the case at bar we note no transcript of the hearing before the magistrate has been filed in either the trial court or this court. Guernsey County, Case No. 2011-CA-06 10

case sub judice and determine whether the trial court acted unreasonably, arbitrarily or

unconscionably.

{33} This Court has held on numerous occasions that where an appellant 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. See State v. Leite

(April 11, 2000), Tuscarawas App. No.1999AP090054; Fogress v. McKee (Aug. 11,

1999), Licking App. No. 99CA15; Strunk v. Strunk (Nov. 27, 1996), Muskingum App. No.

CT96-0015. See, also, Crawford v. Crawford, Richland App. No. 10CA36, 2010– Ohio–

4239, ¶ 16 (holding that the rationale prohibiting appellate courts from considering

assigned errors when portions of the transcript necessary for their resolution are omitted

from the record also applies to a magistrate's decision where the objector fails to

produce the entire transcript for the trial court; in either case, the reviewing court has

nothing to pass upon and thus has no choice but to presume the validity of the lower

court's or magistrate's proceedings.)

{34} In the case at bar, however, appellant purported to file an affidavit of the

evidence under Civ.R. 53(D)(3)(b)(iii).

{35} An affidavit of the evidence can only be used where a transcript is

unavailable. Where a transcript can be produced, it is available for purposes of the rule

and must be submitted in support of the objections.4 “‘[T]he element of availability is not

something which is discretionary with the appellant.’ Rather, the record must

demonstrate that a transcript is unavailable before a party may proceed with an affidavit

of the evidence.” MacConnell v. Nellis, Montgomery App. No. 19924,

at

4 In the case at bar, appellant did not file an affidavit of indigency asserting that he was unable to afford the cost of the transcript. See e.g., State ex rel. Motley v. Capers (1986),

,

. Guernsey County, Case No. 2011-CA-06 11

¶ 15, quoting Dintino v. Dintino (Dec. 31, 1997), Trumbull App. No. 97-T-0047 at *2. In

the case at bar, appellant has not demonstrated that the transcript of the December 2,

2010 hearing before the magistrate was unavailable for the trial court to review in

conjunction with his objections to the magistrate's report. Appellant simply failed to file

the transcript.

{36} In addition, we find appellant’s affidavit of the evidence to be insufficient.

An affidavit under Civ.R. 53(D)(3)(b)(iii) must contain a description of all the relevant

evidence, not just the evidence deemed relevant by the party objecting to the

magistrate's findings. Gill v. Grafton Corr. Inst., 10th Dist. No. 09AP–1019, 2010–Ohio–

2977 at ¶ 23 (Sadler, J., dissenting), quoting Levine v. Brown, 8th Dist. No. 92862,

2009–Ohio–5012, ¶ 18 (internal citations omitted); State Farm Mut. Ins. Co. v. Fox,

Montgomery App. No. 22725,

. In the case at bar, the statement

of evidence appellant provided pursuant to Civ.R. 53(D)(3)(b)(iii) was not so much in the

nature of a statement of all the evidence but, rather, in the nature of a closing argument,

as it was made up almost entirely of conclusory and argumentative statements rather

than a statement of what evidence was presented by the parties in the trial court. See,

Bowker v. Bowker, Delaware App. No. 10CAF110085,

; Gumins

v. Ohio Dept. of Rehab. & Corr., Franklin App. No. 10AP 941,

at ¶13.

{37} Given that there was not a valid statement of the evidence or a transcript

before the trial court when ruling on appellant's objections, we do not have anything by

way of evidence by which to challenge the findings of the magistrate. We must therefore

find the magistrate's findings of fact to be established. This Court has held, “where an

appellant fails to provide a transcript of the original hearing before the magistrate for the Guernsey County, Case No. 2011-CA-06 12

trial court's review, the magistrate's findings of fact are considered established and may

not be attacked on appeal.” Doane v. Doane (May 2, 2001), Guernsey App. No.

00CA21; State v. Leite (April 11, 2000), Tuscarawas App. No.1999AP090054; Fogress

v. McKee (Aug. 11, 1999), Licking App. No. 99CA15; and Strunk v. Strunk (Nov. 27,

1996), Muskingum App. No. CT96-0015.

{38} Accordingly, appellant’s First and Second Assignments of Error are

overruled.

III.

{39} In his Third Assignment of Error, appellant argues in essence, that the

small claims division of a municipal court cannot grant equitable relief. Further,

appellant argues that because the trial court did not order appellee to return the original

transmission appellee has been unjustly enriched. We disagree.

{40} There is no transcript of proceedings in this case. The only “facts” in the

record before us are those found in the magistrate’s Findings of Facts and Conclusions

of Law. Those recommendations do not mention a rescission of the contract at all.

While the magistrate does discuss damages, the factual finding made states that

appellee was damaged in the amount of $560.44. The magistrate found that the

appellee suffered a pecuniary loss in the value of the truck because of his reliance on

appellant’s misstatements. Morris v. Keller (March 24, 1993), Summit App. No. C.A.

15837; Anna v. Nickles (April 5, 1989), Wayne App. No. 2411. Accordingly, the trial

court did not err in entering judgment in appellee’s favor.

{41} No mention was made concerning the original transmission. In the face of

a silent record, we must presume the regularity of the lower court's findings. See, State Guernsey County, Case No. 2011-CA-06 13

v. Leite (April 11, 2000), Tuscarawas App. No.1999AP090054; Fogress v. McKee (Aug.

11, 1999), Licking App. No. 99CA15; Strunk v. Strunk (Nov. 27, 1996), Muskingum App.

No. CT96-0015. See, also, Crawford v. Crawford, Richland App. No. 10CA36, 2010–

Ohio– 4239 at ¶ 16.

{42} Accordingly, appellant’s Third Assignment of Error is overruled.

VI.

{43} In his Sixth Assignment of Error, appellant argues that the trial court

abused its discretion adopting the magistrate’s decision because of the magistrate’s

incorrect rulings on the admissibility of evidence. Further, appellant contends that the

magistrate was biased against him. We disagree.

{44} Given that there was not a valid statement of the evidence or a transcript

before the trial court when ruling on appellant's objections, we do not have anything by

way of evidence by which to challenge the magistrate’s decisions with respect to the

admission or exclusion of evidence. We must therefore find the magistrate's rulings to

be proper. This court has held, “where an appellant 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.” Doane

v. Doane (May 2, 2001), Guernsey App. No. 00CA21; State v. Leite (April 11, 2000),

Tuscarawas App. No.1999AP090054; Fogress v. McKee (Aug. 11, 1999), Licking App.

No. 99CA15; and Strunk v. Strunk (Nov. 27, 1996), Muskingum App. No. CT96-0015.

{45} The removal of a magistrate is within the discretion of the judge who

referred the matter, and should be sought by a motion filed with the trial court. In Re: Guernsey County, Case No. 2011-CA-06 14

Disqualification of Wilson (1996),

,

. In the instant

case, appellant did not file a motion with the court to have the magistrate removed.

{46} Again, we do not have anything by way of evidence that indicates the

magistrate was bias against appellant.

{47} Appellant’s Sixth Assignment of Error is overruled.

{48} For the foregoing reasons, the judgment of the Cambridge Municipal

Court, Guernsey County, Ohio is affirmed.

By: Gwin, P.J.,

Wise, J., and

Edwards, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. JULIE A. EDWARDS [Cite as Lamp v. Linton,

.]

IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

FIFTH APPELLATE DISTRICT

DON LAMP : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : WILLIAM LINTON : : : Defendant-Appellant : CASE NO. 2011-CA-06

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Cambridge Municipal Court, Guernsey County, Ohio is affirmed. Costs

to appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. JULIE A. EDWARDS