Powells v. Radey ( 2012 )

[Cite as Powells v. Radey, 2012-Ohio-163.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96898
CANDICE POWELLS
PLAINTIFF-APPELLEE
vs.
RICHARD RADEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cleveland Municipal Court
Case No. 2008 CVI 030399
BEFORE: Stewart, P.J., Celebrezze, J., and Keough, J.
RELEASED AND JOURNALIZED: January 19, 2012
ATTORNEY FOR APPELLANT
Daniel Walker
White & Walker Co., L.P.A.
75 Public Square, Suite 1310
Cleveland, OH 44113
FOR APPELLEE
Candice Powells, Pro Se
4511 Bush Avenue
Cleveland, OH 44109
MELODY J. STEWART, P.J.:
{¶ 1} This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1
and Loc.R. 11.1, the record from the Cleveland Municipal Court and the brief and oral
argument of appellant’s counsel.
{¶ 2} Plaintiff-appellee Candice Powells brought this action against her landlord,
defendant-appellant Richard Radey, alleging that he charged her rent beyond the amount
authorized in his contract with the Section 8 Tenant-Base Assistance Housing Choice Voucher
Program. Powells’s lease was approved in the amount of $817 and she was originally
provided with a housing assistance payment in the amount $699, leaving her to pay the
remaining $118 due on the lease. During the lease term, the housing assistance payment was
increased to $817, yet Radey continued to collect $118 per month from Powells. The court
approved a magistrate’s decision awarding Powells $1,600 for her overpayment. Radey
appeals, assigning four errors that collectively challenge the weight of the evidence and
complain that he was denied the effective assistance of counsel.
{¶ 3} There is no transcript of the hearing before the magistrate. Civ.R.
53(D)(3)(b)(iii) states that an objection to a factual finding, whether or not specifically
designated as such, 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. Where the objecting party fails to provide the trial court with the transcript of the
proceedings before the magistrate, the appellate court is precluded from considering the
transcript of the magistrate’s hearing. State ex rel. Duncan v. Chippewa Twp. Trustees, 73
Ohio St.3d 728, 730, 1995-Ohio-272, 654 N.E.2d 1254. Radey claims that the magistrate
told the parties that the court’s recording device was broken, but even if that were true, he still
had the responsibility to provide an affidavit of the evidence. See Gumins v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 10AP-941, 2011-Ohio-3314, ¶10; Nelson v. Koester, 8th Dist.
No. 96723, 2011-Ohio-5506, ¶7; App.R. 9(C). Without a transcript or affidavit of the
evidence, we cannot review the magistrate’s factual findings and must presume the regularity
of the proceedings below. See Albritton v. White, 2d Dist. No. 24027, 2011-Ohio-3499, ¶
15.
{¶ 4} Radey next argues that he was denied the effective assistance of counsel because
his originally-retained attorney sent a different, unprepared, attorney to the trial before the
magistrate. Unlike the defendant in a criminal prosecution, a civil litigant has no
constitutional right to the effective assistance of counsel. Goldfuss v. Davidson, 79 Ohio
St.3d 116, 122, 1997-Ohio-401, 679 N.E.2d 1099. If Radey believes the new attorney who
represented him at trial before the magistrate fell short of professional standards, “remedies are
available in a malpractice action.” (Citations omitted.) Id.Judgment affirmed.
It is ordered that appellee recover of appellant her costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland
Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR