Carder v. B & H Towing

[Cite as Carder v. B & H Towing, 2016-Ohio-7374.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GREG CARDER : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff - Appellant : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
B & H TOWING : Case No. CT2016-0031
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Zanesville Municipal
Court, Case No. 15CV100711
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 11, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
GREG CARDER, pro se B & H TOWING, pro se
449 Fisher Lane 1504 Beech Street
Zanesville, Ohio 43701 Zanesville, Ohio 43701
Muskingum County, Case No. CT2016-0031 2
Baldwin, J.
{¶1} Appellant Greg Carder appeals a judgment of the Zanesville Municipal
Court in favor of appellee B & H Towing on a small claims complaint concerning the return
of appellant’s truck.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 26, 2015, appellant received a citation from the Ohio State
Highway Patrol for speeding, failure to wear a seat belt, and fictitious registration. The
vehicle was towed to appellee’s storage lot. Appellant was convicted of all three charges
on November 24, 2015.
{¶3} On December 2, 2015, appellant filed a small claims action against appellee
for “refusal to return truck and excessive charges in disregard to Ohio Revised Codes
plus contents of truck and damages to truck.” Appellant claimed appellee refused to
return the truck, appellee charged a rate in violation of the Ohio Revised Code, and
appellee had damaged appellant’s truck.
{¶4} The case proceeded to a small claims hearing on June 15, 2016. Appellant
stated that he went to appellee’s place of business on October 26, 2015, to get his truck
out of impound, and appellee refused to give him the vehicle. Appellee denied that
appellant came on that date, but testified that when appellant did finally appear to get his
truck, he refused to pay the bill that was presented. Neither party presented evidence
other than their own testimony.
{¶5} Based on the evidence, the court concluded that appellee did not refuse to
return appellant’s truck, did not charge a rate prohibited by law and did not damage the
truck. Appellant filed a notice of appeal to this Court. Because the audio recording of the
Muskingum County, Case No. CT2016-0031 3
hearing was lost, the court asked the parties to file statements of the evidence pursuant
to App. R. 9(C). Appellant filed a proposed statement of the evidence; appellee did not
file a proposed statement of the evidence. The trial court reviewed appellant’s statement,
and adopted its own statement of the evidence pursuant to App. R. 9(C).
{¶6} Appellant assigns one error:
{¶7} “JUDGE JOSEPH STATED THAT HE WILL LOOK INTO THE LAWS THAT
AFFECT THIS CASE, AND I BELIEVE WHAT HE DID WAS DISPOSE OF THIS CASE
WITHOUT THE RESEARCH REQUIRED TO COME TO A JUST DECISION.”
{¶8} Appellant specifically argues that he was not given a written estimate by
appellee as required by R.C. 4513.68, his personal items were not returned in violation
of R.C. 4513.61(C)(2), and the vehicle was not released to him as required by R.C.
4513.69.
{¶9} A judgment supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed as against the manifest weight of
the evidence. C.E. Morris Co. v. Foley Construction Company, 54 Ohio St. 2d 279, 376 N
.E.2d 578, syllabus (1978). As the trier of fact is in the best position to view the witnesses
and their demeanor, in making a determination that a judgment is against the manifest
weight of the evidence, this Court must indulge every reasonable presumption in favor of
the lower court's judgment and findings of fact. Shemo v.. Mayfield Hts., 88 Ohio St. 3d 7,
10, 722 N.E.2d 1018 (2000).
{¶10} After hearing the testimony of both parties, the trial court specifically found
that appellee did not refuse to return appellant’s truck, did not charge a rate prohibited by
law and did not damage appellant’s truck. The Statement of Evidence does not
Muskingum County, Case No. CT2016-0031 4
demonstrate that this judgment is against the manifest weight of the evidence, and does
not support appellant’s claimed error on appeal. Although appellant attached documents
to his brief to support his argument, these documents are not a part of the record on
appeal, as they were not presented as evidence at the hearing before the trial court.
Based on the state of the record before this Court, the assignment of error is overruled.
{¶11} The judgment of the Zanesville Municipal Court is affirmed. Costs are
assessed to appellant.
By: Baldwin, J.
Farmer, P.J. and
Wise, J. concur.