[Cite as Wolkoff v. Bloom Bros. Supply, Inc.,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

LAURA O. WOLKOFF, et al., : OPINION

Plaintiffs-Appellees/ : Cross-Appellants, CASE NO. 2012-G-3092 : - vs - : BLOOM BROTHERS SUPPLY, INC., : Defendant-Appellant/ Cross-Appellee. :

Civil Appeal from the Chardon Municipal Court, Case No. 2011 CVF 00224.

Judgment: Reversed and remanded.

David M. Dvorin, 30195 Chagrin Boulevard, Suite 300, Pepperpike, OH 44124 (For Appellee/Cross-Appellant).

Douglas E. Bloom, Dubyak, Connick, Thompson & Bloom, L.L.C., 3401 Enterprise Parkway, #205, Cleveland, OH 44122 (For Appellant/Cross-Appellee).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant/cross-appellee, Bloom Brothers Supply, Inc., appeals

the Judgment of the Chardon Municipal Court, finding for plaintiffs-appellees/cross-

appellants, Laura O. and Daniel A. Wolkoff, in the amount of $5,573.96 in an action for

breach of contract/violation of Ohio’s Consumer Sales Practices Act. The issues before

this court are: whether a magistrate may modify a prior magistrate’s decision before the

trial court has ruled on objections to the prior decision; whether a “negligent

misrepresentation” may constitute a fraudulent misrepresentation under the Consumer Sales Practices Act; whether a “negligent misrepresentation” supports an award of

treble damages under the Consumer Sales Practices Act; and whether a trial court may

deny attorney’s fees/noneconomic damages after it has found that a “supplier,” as

defined by the Consumer Sales Practices Act, has knowingly committed a deceptive

act. For the following reasons, we reverse the decision of the court below.

{¶2} On February 18, 2011, the Wolkoffs filed a Complaint against Bloom

Brothers in the Chardon Municipal Court, alleging breach of contract, fraudulent and/or

negligent misrepresentation, and the violation of Ohio’s Consumer Sales Practices Act.

The Wolkoffs sought $1,393.49 in actual damages, $5,000.00 in noneconomic

damages, and attorney’s fees.

{¶3} On November 4, 2011, the case was tried before Magistrate Bond. The

following testimony was given:

{¶4} Daniel Wolkoff testified that in October 2007, he purchased a LG washer

and dryer from Bloom Brothers Supply, and that Shannon Black was the sales

representative. The Wolkoffs were dissatisfied with the washer because of how the

machine vibrated when in operation. During the next couple of years, the Wolkoffs

attempted to address the problem through various expedients, such as vibration pads.

{¶5} On January 9, 2010, the Wolkoffs returned to Bloom Brothers Supply.

Black advised them that there have been issues with LG washers and that some have

been sent back. Black proposed that the Wolkoffs find another machine and that they

could receive a credit for the LG washer. On Black’s recommendation, the Wolkoffs

chose an Electrolux “antivibration” washer. According to Daniel’s testimony, Black

stated “there should be no problem returning [the LG washer] to LG and getting a credit

and * * * we can get a new machine.”

2 {¶6} Daniel Wolkoff testified that the purchase of the Electrolux washer was

“contingent” on receiving the credit for the LG washer. On this issue, Daniel spoke

directly with the store owner, Bob Bloom:

{¶7} I approached Bob and introduced myself and told him the issues

we were having. And I said: Bob, I want to make something very

clear to you. I have no intention of owning two washing machines.

That, I’m happy to buy the new one that Shannon has shown us,

the Electrolux but, you know, in the end * * * we need to * * * have

the other machine refunded and credited * * * to us. And Bob said:

You know, we do a lot of volume with LG. We’re a good supplier

for them and * * * we should have no issue with getting a credit

back from them. I said: Fine. If that’s the case, then clearly, * * *

you will mark that on the receipt and say that we’ll get a credit and

[Bob] instructed Shannon to do so.

{¶8} A Bloom Brothers invoice for the sale of an Electrolux washer, dated

January 9, 2010, was introduced into evidence. On the invoice was written: “Return LG

to store for credit from LG.”

{¶9} Daniel Wolkoff testified that the Electrolux washer was delivered after

about a week and the LG washer was picked up, but no credit was ever issued.

{¶10} Laura Wolkoff affirmed her husband’s testimony that they were assured of

a credit for the return of the LG washer and that they insisted on having it in writing.

Laura testified that she called Bloom Brothers every four to six weeks after receiving the

Electrolux, inquiring about the credit. Laura testified that Black continually made

3 excuses as to why the credit had not issued. When Laura contacted Bloom about the

matter, she testified he hung up on her.

{¶11} Shannon Black testified on behalf of Bloom Brothers. He denied that the

Wolkoffs were promised full credit for the return of the LG washer. He testified that the

LG washer’s one-year warranty had expired by the time it was returned and he could

not guarantee a credit from the manufacturer.

{¶12} Black testified that he told the Wolkoffs that he would “try” to get them a

credit from LG. According to Black: “The machine was to be brought back to Bloom

Brothers because they didn’t have any place to store it and that if I could not get a credit

from LG, that she would like it donated or kept safe for, probably give to a friend of

hers.” Black admitted that he wrote the note on the Electrolux invoice but explained that

it was intended for delivery drivers, so that they would know to return the LG washer to

the store rather than have it scrapped. Black pointed out that the LG invoice from 2007

had a similar note on it intended for the delivery driver: “Wed. 10/31 first stop ASAP.”

{¶13} Black further testified that he called the Wolkoffs after LG refused to issue

a credit.

{¶14} On December 2, 2011, Magistrate Bond issued a Magistrate’s Decision,

recommending that “the plaintiffs take nothing” and “that the action be dismissed on the

merits.”

{¶15} On December 9, 2011, the Wolkoffs filed a Request for Findings of Fact

and Conclusions of Law. Magistrate Bond ordered the parties to “submit proposed

findings of fact and conclusions of law to the court for its consideration.”

{¶16} On December 30, 2011, Magistrate Bond adopted the Bloom Brothers’

Proposed Findings of Fact and Conclusions of Law.

4 {¶17} On January 13, 2012, the Wolkoffs filed Objections to the Magistrate’s

Decision. The Wolkoffs did not provide a transcript of the proceedings before

Magistrate Bond, although they claimed a transcript or affidavit of the evidence would

be forthcoming.

{¶18} On January 19, 2012, Magistrate D’Angelo of the Chardon Municipal

Court issued a Magistrate’s decision, recommending that the prior Magistrate’s Decision

be vacated, and that the Wolkoffs be awarded compensatory damages in the amount of

$1,393.49 and the amount of $4,180.47 for treble damages under the Consumer Sales

Practices Act. Magistrate D’Angelo found:

{¶19} While the evidence does not clearly establish the intentional

misrepresentation of the Defendant in promising a credit to the

Plaintiffs from the manufacturer, it does clearly establish negligent

misrepresentation bordering on recklessness. At trial, the

testimony of Defendant attempted to parse the language written on

the receipt to imply that it was incomplete and did not mean a full

refund, just instructions to the truck driver. This Magistrate finds

such testimony disingenuous at best, in light of the written and

testimonial evidence provided at trial. The representation made by

Defendant to the Plaintiffs was false and constitutes a deceptive or

unconscionable act under the CSPA, entitling the Plaintiffs to triple

damages as set forth in Section 1345.09(B).

{¶20} On January 24, 2012, Bloom Brothers filed a Motion to Set Aside

Magistrate’s Decision.

5 {¶21} On January 28, 2012, Bloom Brothers filed Objections to Magistrate

D’Angelo’s Decision.

{¶22} On February 7, 2012, the municipal court issued a Judgment, overruling

Bloom Brothers’ Objections, adopting the January 19, 2012 Magistrate’s Decision, and

vacating the December 30, 2011 Magistrate’s Decision.

{¶23} On March 15, 2012, a hearing was held before a municipal court

magistrate on the issues of noneconomic damages and attorney’s fees under R.C.

1345.09(F).

{¶24} On May 10, 2012, a Magistrate’s Decision was issued denying the

Wolkoffs noneconomic damages and attorney’s fees. The magistrate found:

{¶25} Plaintiffs have not established a basis for an award of non-

economic damages in this case. They utilized the old washing

machine for 2 years before returning it to Defendant. Any

inconvenience thereafter was incidental and minor. The damage

award previously made constitutes substantial compensation to the

Plaintiffs.

{¶26} In addition, the Plaintiffs have not demonstrated that the Defendant

“knowingly” committed the act upon which they have been found

liable. From the hearing held as to damages, it appears, at best,

that the Defendant was careless or sloppy with the information they

placed upon the invoice in regards to the “refund” they would

pursue for the Plaintiffs. It does not appear that the

misrepresentation on the invoice was made with the intent to

deceive as is required by §1345.09(F).

6 {¶27} On June 4, 2012, the Wolkoffs filed Objections to the Magistrate’s

Decision dated May 10, 2012.

{¶28} On June 7, 2012, the municipal court issued a Judgment, overruling the

Wolkoffs’ Objections and adopting the May 10, 2012 Magistrate’s Decision.

{¶29} On July 5, 2012, Bloom Brothers filed its Notice of Appeal. On appeal,

Bloom Brothers raises the following assignment of error: “The trial court erred and

abused its discretion in deciding that Magistrate D’Angelo properly determined the

factual issues and appropriately applied the law, and render[ing] judgment for the

Plaintiffs and against Defendant in the amount of $1,393.49 for compensatory damages

and the amount of $4,180.47 for treble damages for a total of $5,573.96.”

{¶30} On July 13, 2012, the Wolkoffs filed a Notice of Appeal. On cross-appeal,

the Wolkoffs raise the following assignment of error: “The trial court abused its

discretion by not awarding the Wolkoffs their attorney’s fees and non-economic

damages.”

{¶31} “A magistrate’s decision is not effective unless adopted by the court.”

Civ.R. 53(D)(4)(a). “Whether or not objections are timely filed, a court may adopt or

reject a magistrate’s decision in whole or in part, with or without modification. A court

may hear a previously-referred matter, take additional evidence, or return a matter to a

magistrate.” Civ.R. 53(D)(4)(b). Where objections are filed, “the court shall rule on

those objections.” Civ.R. 53(D)(4)(d). “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.” Id.

{¶32} In contrast to the trial court’s de novo review of the magistrate’s decision,

a court of appeals reviews the lower court’s adoption of the magistrate’s decision under

7 an abuse of discretion standard. Cronin v. Cronin, 11th Dist. No. 2011-L-134, 2012-

Ohio-5592, ¶ 25. This court has described an abuse of discretion as a judgment “which

does not comport with reason or the record,” and as one in which the court failed “to

exercise sound, reasonable, and legal decision-making.” (Citations omitted.) In re

Beynenson, 11th Dist. No. 2012-G-3066,

.

{¶33} In its sole assignment of error, Bloom Brothers raises several distinct

arguments. The first argument is dispositive of this appeal.

{¶34} Bloom Brothers argues in the first instance that the municipal court

abused its discretion by adopting Magistrate D’Angelo’s Decision, since Magistrate

D’Angelo lacked authority to reverse Magistrate Bond’s Decision and Magistrate Bond,

as the trier of fact, was in the best position to decide the case on the merits. We agree.

{¶35} Bloom Brothers does not dispute that Magistrate D’Angelo is a duly

appointed magistrate of the municipal court with authority over the present matter.

Rather, Bloom Brothers argues that Magistrate D’Angelo exceeded his authority by

ruling on objections and reversing the decision of the prior magistrate, which actions are

not authorized by Civil Rule 53.

{¶36} Bloom Brothers is correct that a magistrate does not have authority to rule

on objections to a magistrate’s decision. As this court has observed, “[t]he civil rules

clearly prohibit the magistrate from ruling on objections.” Kean v. Kean, 11th Dist. No.

2005-T-0079,

. “If the magistrate entertains objections and

modifies his decision accordingly, he is effectively ruling on parties’ objections,” in

violation of Civil Rule 53(D)(4)(d) (“the court shall rule on * * * objections”).

{¶37} The January 19, 2012 Magistrate’s Decision (D’Angelo’s) explicitly states

that “[t]his matter came on for consideration upon Plaintiff’s Objection to the

8 Magistrate’s Decision filed on or about January 13, 2012.” This action is contrary to the

mandate of Civil Rule 53(D)(4)(d) and this court’s pronouncement in Cronin, i.e., that a

magistrate is without authority to rule on objections. Accordingly, this matter must be

remanded for the municipal court to rule on the Wolkoffs’ Objections to the Magistrate’s

Decision (Bond’s).

{¶38} We note that the Wolkoffs failed to provide a transcript with their

Objections, as required by Civil Rule 53(D)(3)(b)(iii). This court has held that, “[i]f an

objecting party fails to submit a transcript or affidavit, the trial court must accept the

magistrate’s factual findings and limit its review to the magistrate’s legal conclusions.”

King v. King, 11th Dist. Nos. 2012-G-3068 and 2012-G-3079,

.

Unless the Wolkoffs can demonstrate compliance with the requirement to support their

objections to Magistrate Bond’s factual findings, the municipal court is limited in its

review of the Magistrate’s Decision to errors of law.

{¶39} For the foregoing reasons, the June 7, 2012 Judgment of the Chardon

Municipal Court is reversed. The cause is remanded with instructions for the municipal

court to resume proceedings at the point following the Wolkoffs filing their Objections to

the Magistrate’s Decision (Bond’s). Costs to be taxed against the appellees/cross-

appellants.

TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

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