Merrett v. Lowe , 2011 Ohio 1413 ( 2011 )

[Cite as Merrett v. Lowe, 2011-Ohio-1413.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
MICHELLE MERRETT :
Plaintiff-Appellant : C.A. CASE NO. 23747
vs. : T.C. CASE NO. 09CVI802
CARRIE LOWE, et al. : (Civil Appeal from
County Court)
Defendant-Appellees :
. . . . . . . . .
O P I N I O N
Rendered on the 25th day of March, 2011.
. . . . . . . . .
Michelle Merrett, 6413 Zoellners Place, Hamilton, OH 45011
Plaintiff-Appellant, Pro Se
Carrie Lowe, 6221 Hemingway Road, Huber Heights, OH 45424
Defendant-Appellee, Pro Se
. . . . . . . . .
GRADY, P.J.:
{¶ 1} On July 9, 2009, Plaintiff, Michelle Merrett, commenced
a small claims action against Defendants, Carrie Lowe and Jevan
Lowe, seeking a judgment in the total amount of $1,422.72 for unpaid
rent and a water bill due and owing by the Lowes pursuant to their
lease agreement with Merrett. (Dkt. 1).
{¶ 2} On October 13, 2009, the trial court entered a final
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judgment (Dkt. 14). The judgment states that the matter was heard
by the court on August 17, 2009, and that after due consideration
the court finds Plaintiffs’ claim not well taken, and therefore
the court enters judgment for the Lowes on Merrett’s claim for
relief.
{¶ 3} Merritt filed a timely notice of appeal from the trial
court’s final judgment of October 13, 2009 (Dkt. 15). On that
same date, Merrett asked the court to “file the transcript of the
proceedings and all exhibits from the trial held herein on August
17, 2009.” (Dkt. 16).
{¶ 4} App.R. 9(B) provides that the appellant shall order a
complete transcript of the proceedings which the appellant
considers necessary for the appeal. App.R. 9(A) provides that
a video recording of the proceedings constitute the transcript
of proceedings, and need not be transcribed into written form by
the court. That rule further states: “When the transcript of the
proceedings is in the video(tape) medium, counsel shall type or
print those portions of such transcript necessary for the court
to determine the questions presented, certify their accuracy, and
append such copy of the portions of the transcript to their briefs.”
{¶ 5} On February 5, 2010, the trial court filed a video
transcript of the trial proceedings. No printed or written
transcription of the video transcript has been filed.
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{¶ 6} Merrett argues in a “Show Cause Motion For New Trial”
she filed on July 16, 2010, that the video transcript the court
filed “was edited, thereby preventing Appellant from providing
an accurate written transcript of the trial proceeding.” When
no report of the evidence was made or no transcript is available,
App.R. 9(C) authorizes a party to serve a statement of evidence
and proceedings on the adverse party, and for the court to settle
any differences between the parties on the matter and file the
statement for the record of the appeal. There is no indication
that Merrett did so. Merrett’s motion is therefore not well-taken,
and is overruled.
{¶ 7} Plaintiff-Appellant Merrett argues in her brief that
the trial court erred by not considering evidence Merrett
introduced at the August 17, 2009 trial, and by not allowing Merrett
to rebut arguments made by the Lowes at the trial.
{¶ 8} Merrett’s contentions challenge the final judgment the
trial court entered on its findings of fact. In the absence of
the written or printed transcription that App.R. 9(A) requires,
the trial court’s findings are conclusive as to facts of the case.
Lumberman’s Mutual Insurance Co. v. Noble Trucking Co. (1961),
115 Ohio App. 384. In that event, the presumption of the regularity
of the proceedings and the validity of the judgment of the trial
court prevails, and the reviewing court may not challenge the
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findings of the trial court. Beach v. Sweeney (1958), 167 Ohio
St. 477.
{¶ 9} Merrett also argues that the trial court erred in not
considering additional bona fide evidence documenting Merrett’s
claim for relief. Merrett does not identify what that evidence
is. We note that on October 6, 2009, the clerk returned to Merrett
an envelope containing documents and photographs that Merrett had
filed on August 28, 2009. The letter from the clerk explains that
“[t]he court cannot consider this documentation as evidence after
the Trial has taken place. The trial was held on August 17, 2009.”
(Dkt. 17).
{¶ 10} A party must offer such evidence as the party wishes
the court to consider at the trial of the case. If additional
evidence is to thereafter be submitted, the party must obtain leave
of court to do that. It appears that Merrett did not obtain leave
of court to offer additional evidence for the record that she asked
the court to consider after the trial had concluded. We find no
abuse of discretion in the trial court’s refusal to consider the
additional evidence Merrett filed on August 28, 2009, following
the trial that was held on August 17, 2009.
{¶ 11} Merrett’s assignments of error are overruled. The
judgment of the trial court will be affirmed.
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FAIN, J. And HALL, J., concur.
Copies mailed to:
Michelle Merrett
Carrie Lowe
Hon. Adele M. Riley