Ausmundson v. Spicher , 2023 Ohio 3512 ( 2023 )

[Cite as Ausmundson v. Spicher, 2023-Ohio-3512.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
CLAYTON AUSMUNDSON C.A. No. 30570
Appellan
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JENNIFER SPICHER, et al. AKRON MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellee CASE No. 22 CVG 05742
DECISION AND JOURNAL ENTRY
Dated: September 29, 2023
SUTTON, Presiding Judge.
{¶1} Plaintiff-Appellant, Clayton Ausmundson, appeals from the judgment of the Akron
Municipal Court. This Court affirms, in part, and reverses, in part.
I.
Relevant Background
{¶2} This appeal arises from a complaint filed by Mr. Ausmundson against Defendant-
Appellee, Jennifer Spicher, and all other occupants of the rented premises known as 243 E.
Thornton, Akron, Ohio 44311. The complaint alleged two causes of action: (1) forcible entry and
detainer; and (2) monetary damages in the amount of $23,345.45. After a hearing on November 2,
2022, with both parties present, a trial court magistrate denied the writ of restitution of the premises
due to inadequate statutory notice, and dismissed the second cause of action for monetary damages
due to failure to state a recoverable claim.
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{¶3} Mr. Ausmundson filed objections to the magistrate’s findings of fact and
conclusions of law. In so doing, Mr. Ausmundson requested a copy of the audio recording of the
November 2, 2022 hearing, and had it transcribed by Jenna M. Robinson, a notary public. Mr.
Ausmundson attached a copy of the hearing transcript to his objections as an exhibit. In his
objections, Mr. Ausmundson argued the magistrate erred in denying the writ of restitution of the
premises due to improper notice and reliance on Ms. Spicher’s claims regarding obtaining CARES
Act assistance to pay her rent. Further, Mr. Ausmundson argued the magistrate erred in dismissing
his claim for damages because he was not aware damages would be discussed at the November 2,
2022 hearing and the claim could have been transferred to the court of common pleas.
{¶4} In denying Mr. Ausmundson’s objection on the first cause of action, forcible entry
and detainer, the trial court stated:
[Mr. Ausmundson] submitted an audio tape transcript but failed to request or pay
for an official transcript of the hearing held on November 2, 2022. Because [Mr.
Ausmundson] failed to request and submit an official transcript of the evidence
[his] [o]bjection is denied on the [f]irst [c]ause of [a]ction.
The trial court did not address Mr. Ausmundson’s objection to the magistrate’s dismissal of the
second cause of action relating to monetary damages.
{¶5} Mr. Ausmundson now appeals raising two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY DENYING [MR. AUSMUNDSON’S]
OBJECTION TO THE MAGISTRATE’S DECISION OF NOVEMBER 2,
2022[,] ON THE GROUND THAT “[MR. AUSMUNDSON] FAILED TO[]
SUBMIT AN OFFICIAL TRANSCRIPT OF THE EVIDENCE[]” AS
REQUIRED BY CIV.R. 53(D)(3)(b)(iii).
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{¶6} In his first assignment of error, Mr. Ausmundson argues the trial court erred in
denying his objections to the magistrate’s decision because he did not file an official transcript of
the November 2, 2022 hearing, prepared by a stenographic/shorthand reporter.
{¶7} Pursuant to Civ.R. 53(D)(3)(b)(iii):
An 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. With leave of court, alternative technology
or manner of reviewing the relevant evidence may be considered. The objecting
party shall file the transcript or affidavit with the court within thirty days after filing
objections unless the court extends the time in writing for preparation of the
transcript or other good cause. If a party files timely objections prior to the date on
which a transcript is prepared, the party may seek leave of court to supplement the
objections.
{¶8} Additionally, Akron Municipal Court Local R. 26 states:
The court has determined that audio electronic recording devices shall be used to
record the official proceedings of the court. All requests for audio taped copies of
court proceedings shall be made in writing and directed to the secretary/court
records officer. Such requests may be made on the form provided by the Court
Reporter.
The Court Reporter shall prepare a verbatim, audio tape copy of the court
proceedings and provide same to any requesting party within 48 hours of said
request. The requesting party shall pay the cost of the tapes at a rate of $2.50 per
tape. The requesting party may then cause the tape to be transcribed in accordance
with 9(A) of the Rules of Appellate Procedure.
(Emphasis added.) Although Local R. 26 incorrectly cites App.R. 9(A), it clearly references the
transcription of audio recordings which is specifically addressed in App.R. 9(B)(2), stating:
Any stenographic/shorthand reporter selected by the trial court to record the
proceedings may also serve as the official transcriber of those proceedings without
prior trial court approval. Otherwise, the transcriber of the proceedings must be
approved by the trial court. A party may move to appoint a particular transcriber or
the trial court may appoint a transcriber sua sponte; in either case, the selection of
the transcriber is within the sound discretion of the trial court, so long as the trial
court has a reasonable basis for determining that the transcriber has the necessary
qualifications and training to produce a reliable transcript that conforms to the
requirements of App.R. 9(B)(6).
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{¶9} Here, although a stenographic/shorthand reporter did not actually record the
proceedings because they were recorded via audio tape, App.R. 9(B) still required Mr. Ausmundson
to seek the approval of the trial court regarding the person he selected to transcribe the audio tape.
The record reveals Mr. Ausmundson did not do so. Thus, because Mr. Ausmundson did not comply
with Local R. 26, the trial court did not err in disregarding Mr. Ausmundson’s unofficial transcript
of the November 2, 2022 hearing in its review of the magistrate’s findings of fact.
{¶10} Accordingly, Mr. Ausmundson’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY DENYING [MR. AUSMUNDSON’S]
OBJECTION WITHOUT FIRST INDEPENDENTLY REVIEWING THE
CONCLUSIONS OF LAW THAT WERE THE SUBJECT OF THE
OBJECTIONS.
{¶11} In his second assignment of error, Mr. Ausmundson argues the trial court erred in
failing to review the challenges made to the magistrate’s conclusions of law.
{¶12} Civ.R. 53(D)(4)(d) states:
Action on objections[.] If one or more objections to a magistrate’s decision are
timely filed, the court shall rule on those objections. 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. Before so ruling, the court may hear additional evidence but may
refuse to do so unless the objecting party demonstrates that the party could not, with
reasonable diligence, have produced that evidence for consideration by the
magistrate.
(Emphasis added.) “Whenever objections are filed, therefore, a trial court must consider whether
the magistrate properly determined the factual issues and whether the magistrate appropriately
applied the law.” Tillman v. Hyde Park Condo. #3 Owners' Assn., 9th Dist. Summit No. 26455,
2013-Ohio-2432, ¶ 6. If a party objects to factual findings contained in a magistrate’s decision,
however, the objections must “be supported by a transcript of all the evidence submitted to the
5
magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available.”
Id. quoting Civ.R. 53(D)(3)(b)(iii). “When a party objects to a finding of fact but fails to support
the objection as required by the Rule, the trial court may accept the magistrate’s findings of fact,
but must still review the conclusions of law that are the subject of objections.” Id., citing Weitzel
v. Way, 9th Dist. Summit No. 21539, 2003-Ohio-6822, ¶ 18.
{¶13} The trial court, here, denied Mr. Ausmundson’s objections to the magistrate’s
findings of fact and conclusions of law because he failed to support his objections with a transcript
of the evidence. However, as indicated above, the trial court erred in failing to undertake an
independent review of Mr. Ausmundson’s objections to the extent they challenged the accuracy of
the magistrate’s legal conclusions.
{¶14} Accordingly, Mr. Ausmundson’s second assignment of error is sustained.
III.
{¶15} Mr. Ausmundson’s first assignment of error is overruled and his second assignment
of error is sustained. The judgment of the Akron Municipal Court is affirmed, in part, reversed, in
part, and remanded for proceedings consistent with this decision.
Judgment affirmed, in part,
reversed, in part,
and remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Akron 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.
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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 equally to both parties.
BETTY SUTTON
FOR THE COURT
HENSAL, J.
STEVENSON, J.
CONCUR.
APPEARANCES:
JOSEPH E. OLIVER, Attorney at Law, for Appellant.
JENNIFER SPICHER, pro se, Appellee.