[Cite as Welch v. Prompt Recovery Servs., Inc.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

PATRICIA WELCH C.A. No. 27175

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE PROMPT RECOVERY SERVICES, INC., STOW MUNICIPAL COURT et al. COUNTY OF SUMMIT, OHIO CASE No. 2012 CVF 1636 Appellants

DECISION AND JOURNAL ENTRY

Dated: September 23, 2015

WHITMORE, Judge.

{¶1} Appellants Prompt Recovery Services, Inc. (“Prompt”) and Glenn Ivancic appeal

the judgment of the Stow Municipal Court which overruled Appellants’ objections, affirmed the

decision of the magistrate, and entered judgment in favor of Appellee Patricia Welch. This

Court affirms.

I

{¶2} Ms. Welch was fired from her job as a bookkeeper for Prompt. She filed a

complaint and an amended complaint alleging claims for: (1) failure to pay minimum wage; (2)

violation of R.C. 4113.15; (3) failure to keep accurate payroll records under Article II, Section

34a of the Ohio Constitution; (4) breach of an employment contract; and (5) unjust enrichment.

{¶3} The magistrate held a trial and journalized a decision finding for Welch.

Appellants objected. Appellants did not file a transcript of the trial with their objections. 2

{¶4} Ms. Welch next filed a motion for attorney fees. The magistrate conducted a

hearing on the motion. Appellants filed a brief in opposition to the motion. Appellants did not

provide a transcript of the attorney fee hearing with their opposition. The magistrate issued

another decision, this time awarding statutory damages and attorney fees to Ms. Welch.

{¶5} The trial court overruled all of Appellants’ objections to the magistrate’s decision

on the merits of the amended complaint, and the magistrate’s decision on attorney fees. The

court entered judgment for Ms. Welch in the amount of $3,381.18 for back wages. The court

also awarded Ms. Welch $6,762.36 in statutory damages under R.C. 4111.14. Lastly, the court

awarded Ms. Welch attorney fees totaling $11,955.00.

{¶6} Appellants take this appeal from the trial court’s decisions on the merits of the

amended complaint, statutory damages, and attorney fees. Appellants raise one assignment of

error for our review.

II

Assignment of Error Number One

THE FINDING OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGH[T OF] THE EVIDENCE, AN ABUSE OF DISCRETION, AND CONTRARY TO LAW.

{¶7} Appellants argue that the trial court erred because Ms. Welch allegedly failed to

prove that: (1) Mr. Ivancic was an employer under Article II, Section 34a of the Ohio

Constitution and R.C. Chapter 4111; (2) Appellants violated R.C. 4111.14(F) by not keeping

records identifying the hours that Ms. Welch worked each day; (3) Appellants violated Article II,

Section 34a of the Ohio Constitution and R.C. 4113.15 by not paying Ms. Welch for hours

worked; and (4) Appellants breached an employment contract with Ms. Welch. Appellants also 3

claim that the trial court’s awards of statutory damages and attorney fees were excessive. We

disagree.

{¶8} The standard of review for a trial court judgment that adopts a magistrate’s

decision is abuse of discretion. Bobel Elec., Inc. v. Friedman¸ 9th Dist. Lorain No.

03CA008217,

, *2 (Aug. 27, 2003). Under this standard, we determine

whether the trial court’s decision was arbitrary, unreasonable, or unconscionable, and not merely

an error of law or judgment. Blakemore v. Blakemore,

(1983).

{¶9} “In so doing, we consider the trial court’s action with reference to the nature of

the underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-

Ohio-3139, ¶ 18. Thus, we consider “whether the trial court abused its discretion by determining

that the findings of the magistrate were supported by the weight of the evidence.”

In a civil

case, like this one, the “appropriate determination [is] whether the magistrate’s decision [is]

‘supported by some competent, credible evidence.’”

quoting Bryan-Wollman v. Domonko,

,

, ¶ 3.

{¶10} In the case below, the trial court correctly concluded that it was bound by the

magistrate’s findings of fact, because Appellants failed to provide a transcript of the proceedings

before the magistrate, or a proper affidavit in place of a transcript. Civ.R. 53(D)(3)(b)(iii) states

in relevant part that “[a]n 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.” Appellants failed to provide a transcript of either the trial or the

hearing on attorney fees. Moreover, although Appellants provided an affidavit, the affidavit was

inadequate under Civ.R. 53. An affidavit offered in lieu of a transcript under Civ.R. 53 must 4

certify that the transcript was unavailable, and it must describe all relevant evidence presented to

the magistrate. Saipan v. Coy, 9th Dist. Summit No. 21800,

; Levine v.

Brown, 8th Dist. Cuyahoga No. 92862,

, ¶ 20. Appellants’ affidavit does neither.

The affidavit makes no mention whether the transcript is available. Moreover, it presents a

cursory statement only of facts supporting Appellants’ own arguments, instead of “all the

evidence submitted to the magistrate relevant to [Appellants’ objections].” Civ.R.

53(D)(3)(b)(ii). Without a transcript or proper affidavit, the trial court was required to accept the

magistrate’s factual findings. See Trammell v. McCortney, 9th Dist. Summit No. 25840, 2011-

Ohio-6598, ¶ 9; Stewart v. Taylor, 9th Dist. Wayne No. 02CA0026,

, ¶ 11.

{¶11} “Moreover, in the absence of a properly filed transcript or affidavit of the

evidence, this Court must also conclude that the trial court’s decision was supported by some

competent, credible evidence * * *.” Trammell at ¶ 9. Accordingly, this Court must hold that

the trial court’s factual determinations are not against the manifest weight of the evidence, and,

therefore, do not constitute an abuse of discretion.

{¶12} Because we must accept all of the trial court’s factual findings as true, we may

review only the trial court’s conclusions of law based upon the accepted findings of fact.

. “A trial court’s legal conclusions are afforded no deference, but are reviewed de novo.”

citing Canton Fin. v. Pritt, 9th Dist. Wayne No. 01CA0048,

, ¶ 6.

{¶13} Appellants first challenge the trial court’s legal conclusion that Mr. Ivancic was

Ms. Welch’s “employer” as that term is used in Article II, Section 34a of the Ohio Constitution

and R.C. Chapter 4111. Article II, Section 34a of the Constitution states that, with certain

exceptions not applicable here, the term “employer” has “the same meanings as under the federal 5

Fair Labor Standards Act [(“FLSA”)].”1 Ohio Constitution, Article II, Section 34a. The FLSA

defines an “[e]mployer” as including “any person acting directly or indirectly in the interest of an

employer in relation to an employee * * *.” 29 U.S.C. 203(d). Similarly, R.C. 4111.03(D)(2)

states that an “[e]mployer” includes “any person * * * acting in the interest of an employer in

relation to an employee.” Here, the trial court considered that Mr. Ivancic fell within the

relevant definitions of employer because he was president of Prompt and exercised operational

control over the company, hired and fired Ms. Welch, defined her job duties, set her wages,

permitted her to work remotely, required her to work while she was out of town, and determined

her leave. Without a transcript or proper affidavit to dispute these factual findings, we cannot

determine that the trial court reached an erroneous conclusion of law.

{¶14} Second, Appellants contest the legal conclusion that they should be liable for

failing to keep accurate records of Ms. Welch’s hours worked each day as required under the

Ohio Constitution and R.C. 4111.14(F). Appellants argue that they should not be held liable for

inaccurate records of Ms. Welch’s hours worked, because Ms. Welch was the employee

responsible for creating and maintaining those records at Prompt. Contrary to Appellants’

argument, however, the duty to keep adequate and accurate records under Ohio law rests

squarely on the employer. Article II, Section 34a of the Constitution and R.C. 4111.14(F) both

provide that an “employer shall maintain a record of the * * * hours worked for each day

worked[,] and each amount paid an employee * * *.” Moreover, R.C. 4111.14(I) repeatedly

refers to the “employer’s compliance” with the record-keeping requirement of R.C. 4111.14, and

states:

1 The claims in this case arise under Ohio law. We do not address whether the FLSA also applies, because the parties did not raise the issue and a transcript of the proceedings below was not provided. 6

In accordance with Section 34a of Article II, Ohio Constitution, the state may on its own initiative investigate an employer’s compliance with Section 34a of Article II, Ohio Constitution and any law or regulation implementing Section 34a of Article II, Ohio Constitution. The employer shall make available to the state any records related to such investigation and other information required for enforcement of Section 34a of Article II, Ohio Constitution or any law or regulation implementing Section 34a of Article II, Ohio Constitution. The state shall investigate an employer’s compliance with this section in accordance with the procedures described in section 4111.04 of the Revised Code.

R.C. 4111.14(I). Thus, the Constitution and R.C. 4111.14 create liability for an employer that

fails to maintain accurate records, without regard for who created the records. The trial court

therefore was correct to conclude that the legal consequences of failing to comply with the

record-keeping requirements of the Constitution and R.C. 4111.14(F) fall upon Appellants.

{¶15} Appellants further challenge the trial court’s conclusion that Appellants failed to

pay Ms. Welch for hours worked. This was purely a factual determination by the trial court. As

discussed, we must accept the trial court’s factual findings as true. See Trammell, 2011-Ohio-

6598, at ¶ 9. Accordingly, we will not disturb the trial court’s findings regarding the number of

hours Ms. Welch worked for which she was not paid. The trial court was within its discretion to

hold that Appellants improperly withheld pay from Ms. Welch.

{¶16} Next, Appellants dispute the trial court’s conclusion that Appellants breached an

employment contract with Ms. Welch. They argue that no contract existed, because Ms. Welch’s

at-will employment status precluded the existence of an employment contract. The trial court

correctly concluded that at-will status does not necessarily preclude the existence of an

employment contract. See, e.g., Rigby v. Fallsway Equip. Co., Inc.,

, 2002-

Ohio-6120, ¶ 13 (9th Dist.) (an employment contract that does not specify a specific term of

employment “terminable at will by either party”). The court also made factual findings

demonstrating that: (1) Ms. Welch proved the requirements to show the existence of a contract; 7

(2) she performed under the contract; (3) Appellants breached the contract; and (4) Ms. Welch

suffered damage or loss as a result of the breach. Because this Court may not reconsider the

factual findings that are the basis of the trial court’s legal analysis, we are compelled to sustain

the trial court’s finding that Appellants breached an employment contract with Ms. Welch.

{¶17} Appellants further contend that the trial court abused its discretion in awarding

damages. Appellants’ claim is untenable. To begin, the trial court’s conclusion that Appellants

owe $3,381.18 in back wages is a factual determination based on hours worked and not

compensated that this Court may not review in the absence of a transcript or affidavit. Further,

the court calculated statutory damages of $6,762.36 in accordance with the express mandate of

both Article II, Section 34a of the Ohio Constitution and R.C. 4111.14(J). Section 34a and R.C.

4111.14(J) both require that damages “shall be calculated as an additional two times the amount

of the back wages * * *.” This is precisely what the trial court did.

{¶18} There is no merit to Appellants’ claim that the trial court should have reduced the

statutory damages because Appellants acted in good faith. As a threshold matter, there was no

evidence before the trial court to support a factual finding of good faith, because Appellants

neglected to provide either a transcript of the proceedings before the magistrate, or a proper

affidavit under Civ.R. 53. The trial court’s calculation of statutory damages was not an abuse of

discretion.

{¶19} Appellants argue next that the attorney fee award of $11,955.00 is unreasonable

because it exceeds the damages award. The standard of review for an award of attorney fees is

abuse of discretion. Motorists Mut. Ins. Co. v. Brandenburg,

, (1995). 8

{¶20} This Court affirms the trial court’s attorney fee award as reasonable. The

Supreme Court of Ohio has refused to establish a rule linking reasonable attorney fees to the

underlying monetary award. Bittner v. Tri-Cty. Toyota, Inc.,

(1991).

Instead of tying the attorney fees to the underlying award, the trial court properly adopted the

magistrate’s application of the lodestar method of calculating fees. Turner v. Progressive Corp.,

(8th Dist. 2000) (the law is “well established that the first step in

determining an award of attorney fees is the computation of the lodestar figure”).

{¶21} As is required under the lodestar method, the court first calculated the number of

hours reasonably expended on the case times a reasonable hourly fee.

. The next

step is to raise or lower the lodestar based upon factors that may include:

the time and labor involved in maintaining the litigation; the novelty and difficulty of the questions involved; the professional skill required to perform the necessary legal services; the attorney’s inability to accept other cases; the fee customarily charged; the amount involved and the results obtained; any necessary time limitations; the nature and length of the attorney/client relationship; the experience, reputation, and ability of the attorney; and whether the fee is fixed or contingent.

. The trial court did not make independent findings of fact regarding

the lodestar test factors. Indeed, the court could not make factual findings without a transcript of

the attorney fee hearing before the magistrate. The trial court instead accepted the magistrate’s

findings of fact regarding the lodestar factors as the court was required to do, found that the

magistrate considered all of the relevant factors, and adopted the magistrate’s recommended

award of attorney fees.

{¶22} Like the court below, we must accept the magistrate’s factual findings in relation

to the calculation of attorney fees. Without a transcript of the attorney fee hearing, we presume

regularity in the lower court’s determination of attorney fees. Black v. Black,

473, 477 (9th Dist. 1996), citing Knapp v. Edwards Laboratories,

(1980);

Volodkevich v. Volodkevich,

(9th Dist. 1989). Accordingly, the trial

court’s attorney fee award was not an abuse of discretion.

{¶23} For all of the reasons stated, Appellants’ sole assignment of error is overruled.

III

{¶24} Appellants’ assignment of error is overruled. The judgment of the Stow

Municipal Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Stow Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellants.

BETH WHITMORE FOR THE COURT 10

HENSAL, P. J. SCHAFER, J. CONCUR.

APPEARANCES:

CRAIG A. ADAMS, Attorney at Law, for Appellants.

DAVID N. TRUMAN, Attorney at La,w for Appellee.