18AP-11 , 2018 Ohio 2274 ( 2018 )

[Cite as 18AP-11, 2018-Ohio-2274.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Roger Studley, :
Plaintiff-Appellant, :
No. 18AP-11
v. : (M.C. No. 2017 CVI 13752)
Zachary Biehl, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on June 12, 2018
On brief: Roger Studley, pro se. Argued: Roger Studley.
APPEAL from the Franklin County Municipal Court,
Small Claims Division
BRUNNER, J.
{¶ 1} Plaintiff-appellant, Roger Studley, appeals from a judgment of the Franklin
County Municipal Court, Small Claims Division, entered on December 7, 2017 in favor of
defendant-appellee, Zachary Biehl, on a counterclaim in the amount of $6,000 plus costs
and interests. For the following reasons, we affirm the trial court's decision.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} This matter arose in connection with a home renovation contract dispute. In
January 2016, Studley and his wife, Margaret Studley, entered into a general contractor
agreement with Zachary Biehl/Z1 Construction for certain renovations to a home they
owned at 4105 Fenwick Road, Upper Arlington, Ohio ("the home"). The record indicates
that the relationship between the Studleys and Biehl deteriorated to the point that Biehl
ceased all work on the home. Biehl had left tools/equipment at the Studleys' home at the
time he ceased working on it.
No. 18AP-11 2
{¶ 3} On April 25, 2017, Studley filed a complaint against Biehl in the Small Claims
Division of the Franklin County Municipal Court. Studley alleged that Biehl had failed to
complete the renovation in a timely fashion. Studley sought judgment against Biehl in the
amount of $6,000 for appliances Studley had paid for but had not received, kitchens
cabinets that had been removed from the home, and work that Biehl had not performed.
{¶ 4} On May 30, 2017, Biehl filed a counterclaim against Studley alleging that
Studley had breached the contract, including failing to pay the entire amount owed to Biehl
for services rendered. Biehl further alleged that Studley was illegally withholding Biehl's
equipment. Biehl sought judgment against Studley in the amount of $6,000.
{¶ 5} On August 29, 2017, the parties' competing claims were heard by a magistrate
of the Small Claims Division for trial. Studley appeared and represented himself. Biehl
appeared and was represented by counsel. On December 5, 2017, the magistrate issued a
written decision, including findings of facts and conclusions of law. Based on the testimony
and evidence presented, the magistrate found that Studley had failed to prove by a
preponderance of the evidence a right to recover against Biehl and that Biehl did not owe
Studley any money. The magistrate also found that Biehl had proved his counterclaim by
a preponderance of the evidence. The magistrate stated:
There is unrefuted testimony regarding [Studley's] failure to
return all of the equipment owned by [Biehl]. The stated value
of this property is $2,000.00 and [Biehl] is entitled to said
amount.
As to amount still owed to [Biehl], the Court finds that the
amount is $15,859.55. [Biehl] has submitted to the jurisdiction
of this Court and is requesting a total of $6,000.00.
Judgment for [Biehl] on counterclaim in the amount of
$6,000.00, plus costs and interest from the date of judgment.
(Dec. 5, 2017 Mag. Decision at 3.)
{¶ 6} By judgment entry filed December 7, 2017, the trial court adopted the
magistrate's decision and entered judgment for Biehl on the counterclaim in the amount of
$6,000, plus court costs and interest.
{¶ 7} Nothing in the record indicates Studley filed objections to the magistrate's
decision. Studley filed notice of this appeal on January 4, 2018, and filed his brief with this
Court on January 23, 2018. No transcript of the August 29, 2017 trial appears in the record.
No. 18AP-11 3
II. ASSIGNMENT OF ERRORS
{¶ 8} Studley presents a single assignment of error for our review:
The municipal small claims court committed plain error by
failing to address and adequately adjudicate the appellant's
claim that the appellee converted moneys paid for kitchen
appliances to his own use.
III. LAW AND DISCUSSION
{¶ 9} At the outset, we note that Studley did not file with the trial court written
objections to the magistrate's decision. The magistrate's decision satisfies the requirements
of Civ.R. 53(D)(3)(a)(iii) in that it contains the following conspicuous language:
A party shall not assign as error on appeal the court's adoption
of any findings of fact or conclusion of law contained in this
decision unless the party timely and specifically objects to the
finding or conclusion. Civ. R. 53(D)3 [sic].
(Mag. Decision at 3.)
{¶ 10} Civ.R. 53(D)(3)(b)(i) provides that a party may file written objections to a
magistrate's decision within 14 days after the magistrate's decision is filed. A party who
does not timely object to a magistrate's decision has limited options on appeal. Because
Studley did not file with the trial court any objections to the magistrate's decision, no
objections other than plain error can by reviewed by this Court now. He has waived all but
plain error.
{¶ 11} Studley argues in his appellate brief that it was plain error for the trial court
not "to give proper credit to the payments made by [Studley] to [Biehl] for change orders,
including the purchase of the [kitchen] appliances." (Studley Brief at 6.) Studley argues
that the evidence presented at trial established that he had issued a payment of $26,915.25
to Biehl, $5,109 of which was for kitchen appliances, with the remainder to be applied to
change orders. He further argues that Biehl neither delivered the appliances nor returned
the money attributable to their cost but, rather, that Biehl claimed to have applied the entire
amount to change orders Studley had requested. Studley acknowledges and "is willing to
accept" Biehl's assertion that the amount of the change orders was $15,859.55, "as it
appears as that is what the lower court did." Id. Studley argues that "the record is void of
any evidence supporting the fact that [Biehl] did not convert the moneys paid by [Studley]
for kitchen appliances to his own use." (Emphasis omitted.) Id. at 3. Studley further argues
No. 18AP-11 4
that the trial court "made the simple mistake of not recognizing that [Studley] had fully paid
[Biehl] for all the work performed, including covering the costs of [Biehl] losing or
misplacing $2,000.00 * * * worth of tools on the job site." Id. at 7-8. He contends that
Biehl still owes him the $5,109 intended for the kitchen appliances and that Biehl converted
this amount of funds to his own use. Studley's arguments sound in fact and not in law, and
he is thus limited even further.
{¶ 12} Studley did not file with either the trial court or this Court a transcript of the
August 29, 2017 trial before the magistrate. We must therefore rely on the magistrate's
findings of fact as adopted by the trial court, because there is no other evidence before us
to review. Studley and our review are bound by the rule and applied legal precedent that,
" ' "[t]he duty to provide a transcript for appellate review falls upon the appellant. This is
because the appellant bears the burden of showing error by reference to matters in the
record." ' " Lee v. Ohio Dept. of Job & Family Servs., 1oth Dist. No. 06AP-625, 2006-Ohio-
6658, ¶ 10, quoting Dailey v. R & J Commercial Contracting, 10th Dist. No. 01AP-1464,
2002-Ohio-4724, ¶ 20, quoting Fleisher v. Siffrin Residential Assoc., Inc., 7th Dist. No. 01-
CA-169, 2002-Ohio-3002, ¶ 25, following Knapp v. Edwards Laboratories, 61 Ohio St.2d
197, 199 (1980).
{¶ 13} Without a transcript, we "must presume the regularity of the proceedings
below and affirm the trial court's decision." Lee at ¶ 10, citing Edwards v. Cardwell, 10th
Dist. No. 05AP-430, 2005-Ohio-6758, ¶ 4-6; Dailey at ¶ 20. " 'Where a party to an appeal
fails to file portions of the transcript necessary for resolution of his assignments of error,
the assignments will be overruled.' " Lee at ¶ 10, quoting Maloney v. Maloney, 34 Ohio
App.3d 9 (11th Dist.1986), syllabus.
{¶ 14} We find no plain error under the law. Nor do we find plain error in reaching
conclusions of fact, because we have no transcript by which to make a comparison of the
factual findings to what evidence was actually adduced before the magistrate and reviewed
by the trial court. We are not permitted nor would we attempt to substitute our judgment
for that of the trial court. In keeping with this restrained role, we cannot presume evidence
other than what appears in the record, nor can we presume evidence not offered or facts
not proved. Without a transcript, we must presume the regularity of the trial court's
proceedings and affirm its judgment on appellate review. Lee at ¶ 10.
No. 18AP-11 5
{¶ 15} We find no indications in the record that the magistrate or trial court
committed plain error. Accordingly, we sustain the decision of the trial court in adopting
the decision of its magistrate.
IV. CONCLUSION
{¶ 16} Having thoroughly reviewed the entire record—what there is of it—we find
no plain error in the trial court's decision. Studley's single assignment of error is overruled,
and the decision of the Franklin County Municipal Court, Small Claims Division, is
affirmed.
Judgment affirmed.
BROWN, P.J., and TYACK, J., concur.