Kramanak v. Myers ( 2013 )

[Cite as Kramanak v. Myers, 2013-Ohio-2977.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
FRANK KRAMANAK : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2013CA00010
JOHN MYERS, ET AL. :
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Canton Municipal
Court, Case No. 2012-CVG-06726
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 8, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
ALETHA CARVER JOHN MYERS PRO SE
MATTHEW HUNT SANDY MYERS PRO SE
4775 Munson Street N.W. P.O. Box 414
Canton, OH 44718 Magnolia, OH 44643
[Cite as Kramanak v. Myers, 2013-Ohio-2977.]
Gwin, P.J.
{¶1} Appellants appeal the December 31, 2012 judgment entry of the Canton
Municipal Court approving and confirming the magistrate’s report of December 12,
2012.
Facts & Procedural History
{¶2} Pursuant to a written lease agreement, appellants entered into possession
of 1119 – 37th Street N.E., Canton, Ohio, 44714, approximately nineteen (19) years ago
as tenants of Joan Kramanak. Appellee Frank Kramanak is the power of attorney for
Joan Kramanak. The parties renewed the original lease several times with the most
recent lease renewal expiring October 1, 2009. Appellants then remained in the
property as holdover tenants.
{¶3} Appellants contacted the Stark County Health Department on June 11,
2012 regarding mold and water issues in the apartment and the continued failure of
appellee to remedy the mold and water issues. The inspector determined there was
mold in the basement laundry room and storage room. The mold was abated on July
11, 2012, after appellee contracted with an outside company to remove the mold.
{¶4} On August 16, 2012, appellee gave appellants a thirty-day notice to
vacate the property, which became effective on September 25, 2012. Appellee alleges
that, after the thirty-day notice, appellants failed to pay rent for August, September, and
October, and failed to leave the premises. Appellants state they paid the rent for all
months except September and they vacated the premises by October 1, 2012.
{¶5} Appellee filed a forcible entry and detainer action against appellants on
October 12, 2012. At the hearing on the forcible entry and detainer action on October
Stark County, Case No. 2013CA00010 3
22, 2012, the trial court dismissed appellee’s first cause of action for forcible entry and
detainer and continued the second cause of action for damages because appellants
had vacated the premises. On October 25, 2012, appellants filed a counterclaim for
retaliation pursuant to R.C. 5321.02, alleging appellee retaliated against appellants for
reporting appellee to the Stark County Health Department by bringing an action for
possession of the premises.
{¶6} An evidentiary hearing on appellee’s second cause of action for damages
and on appellants’ counterclaim for retaliation was held before a magistrate on
November 28, 2012. A magistrate’s report was issued on December 12, 2012. The
magistrate found, from the evidence presented, the parties had a nineteen (19) year
landlord/tenant relationship. The magistrate awarded judgment against appellants in
the amount of $5,011.06 plus costs and interest and dismissed appellants’ counterclaim
for retaliation for lack of evidence. Specifically, the magistrate awarded appellee the
following: $867.00 for clean up/dumpster, $187.06 for glass door thermopane, $212.00
for front storm door, $150.00 for downstairs bedroom door, $150.00 for family room
door, $120.00 for kitchen and bedroom lights, $100.00 for family room paneling, and
$3,650.00 for back rent. The magistrate deducted the $425.00 security deposit from the
total damages awarded. All other alleged damages were found by the magistrate to be
normal wear and tear of a nineteen year tenancy. The magistrate found no evidence to
establish any retaliatory actions on the part of appellee. The trial court judge approved
and confirmed the magistrate’s decision on December 31, 2012. Appellants did not file
objections to the magistrate’s December 12, 2012 decision, but filed an appeal of the
trial court’s December 31, 2012 entry and assign the following errors on appeal:
Stark County, Case No. 2013CA00010 4
{¶7} “I. THE DISTRICT COURT ERRED IN HOLDING THAT COURT FINDS
NO EVIDENCE TO ESTABLISH PLAINTIFF VIOLATED SECTION 5321.03 OF OHIO’S
REVISED CODE.
{¶8} “II. THE DISTRICT COURT ERRED IN JUDGMENT OF $3,650.00 TOTAL
BACK RENT AWARDED TO PLAINTIFF.
{¶9} “III. THE DISTRICT COURT ERRED IN JUDGMENT THAT
DEFENDANT’S COUNTERLCAIM SHOULD BE DISMISSED.
{¶10} “IV. THE DISTRICT COURT ERRED IN JUDGMENT ENTITLING
PLAINTIFF $867.00 FOR CLEANUP AND DUMPSTER.
{¶11} “V. THE DISTRICT COURT ERRED IN AWARDING REPLACEMENT
COSTS, NUMBERED 2, 3, 4, 5, 6 ON MAGISTRATE’S REPORT.”
Analysis
{¶12} Civil Rule 53 governs proceedings before magistrates. Civil Rule
53(D)(3)(a)(iii) provides a “magistrate’s decision shall indicate conspicuously that a
party shall not assign as error on appeal the court’s adoption of any factual finding or
legal conclusion, whether or not specifically designated as a finding of fact or conclusion
of law under Civ.R.53(D)(3)(a)(ii), unless the party timely and specifically objects to that
factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).”
{¶13} However, a party is not prohibited from assigning errors on appeal related
to the court’s adoption of a magistrate’s factual findings if the required language of
Civ.R.53(D)(3)(a)(iii) is not included in the magistrate’s decision. Marble Builder Direct
Int’l Inc. v. Hauxhurst, 11 Dist. No. 2011-L-040, 2012-Ohio-1674. In this case,
appellants failed to file objections to the magistrate’s decision within the 14 day period
Stark County, Case No. 2013CA00010 5
as provided in Civ.R.53. However, the magistrate’s report failed to include the required
language of Civ.R. 53(D)(3)(a)(iii). Therefore, appellants are permitted to assign errors
related to the trial court’s adoption of the magistrate’s findings of fact and conclusions of
law on appeal.
{¶14} However, while appellants can assign errors related to the trial court’s
adoption of the magistrate’s findings of fact and conclusions of law on appeal because
of the lack of the required Civ.R. 53(D) language in the magistrate’s report, appellants
have the responsibility of providing this Court with a record of the facts, testimony, and
evidentiary matters which are necessary to support their assignments of error. Wozniak
v. Wozniak, 90 Ohio App.3d 400, 409, 629 N.E.2d 500, 506 (9th Dist. 1993). This is
recognized in App.R. 9(B) which provides, in part: * * * the appellant shall in writing
order from the reporter a complete transcript or transcript of such part of the
proceedings not already on file as he deems necessary for inclusion in the record * * *.”
App.R. 9(C) reads:
“If no report of the evidence or proceedings at a hearing or trial was
made, or if a transcript is unavailable, the appellant may prepare a
statement of the evidence or proceedings from the best available means,
including his recollection. The statement shall be served on the appellee
no later than twenty days prior to the time for transmission of the record
pursuant to App.R. 10, who may serve objections or propose amendments
to the statements within ten days after service. The statement and any
objections or proposed amendments shall be forthwith submitted to the
trial court for settlement and approval. The trial court shall act prior to the
Stark County, Case No. 2013CA00010 6
time for transmission of the record pursuant to App.R. 10, and, as settled
and approved, the statement shall be included by the clerk of the trial
court in the record on appeal.”
{¶15} On November 28, 2012, the magistrate held a hearing at which he heard
evidence regarding the amount of damages and evidence regarding appellants’
retaliation claim. The record reflects appellants failed to request a transcript of the
November 28, 2012 evidentiary hearing pursuant to App.R. 9(B) or submit a statement
of evidence pursuant to App.R. 9(C). When portions of the transcript necessary for
resolution of assigned errors are omitted from the record, the reviewing court has
nothing to pass upon and thus, as to those assigned errors, the court has no choice but
to presume the validity of the lower court’s proceedings, and affirm. Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980). Because appellants have
failed to provide this court with those portions of the transcript necessary for resolution
of the assigned errors, i.e. the transcript of the November 28, 2012 evidentiary hearing
before the magistrate, we must presume the regularity of the proceedings below and
affirm, pursuant to the directive set forth in Knapp.
Stark County, Case No. 2013CA00010 7
{¶16} Accordingly, Appellants’ Assignments of Error I, II, III, IV, and V are
overruled and the judgment of the Canton Municipal Court is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Delaney, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. PATRICIA A. DELANEY
WSG:clw 0617
[Cite as Kramanak v. Myers, 2013-Ohio-2977.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
FRANK KRAMANAK :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOHN MYERS, ET AL. :
:
:
Defendants-Appellants : CASE NO. 2013CA00010
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Canton Municipal Court is affirmed. Costs to appellants.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. PATRICIA A. DELANEY