Smith v. Burke

[Cite as Smith v. Burke, 2013-Ohio-5563.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
AMANDA SMITH, et al. C.A. No. 26913
Appellees
v. APPEAL FROM JUDGMENT
ENTERED IN THE
FRED BURKE, et al. BARBERTON MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellants CASE No. 13 CVI 370
DECISION AND JOURNAL ENTRY
Dated: December 18, 2013
WHITMORE, Judge.
{¶1} Defendant-Appellants, Fred Burke and Lilliam DeJesus, appeal from the
judgment of the Barberton Municipal Court. This Court reverses.
I
{¶2} Amanda and Bryan Smith (collectively, “the Smiths”) filed a small claims action
against Burke and DeJesus. In their pro se complaint, the Smiths alleged that they paid Burke
and DeJesus for services that were never rendered. Copies of a summons were sent by certified
mail to Burke and DeJesus and signed for on February 27, 2013. The signatures on the receipts
are illegible. The summons indicated a hearing date of March 13, 2013.
{¶3} On March 12, 2013, DeJesus faxed a letter to the Barberton Clerk of Courts. In
that letter, she requested that the court dismiss the complaint because she had never done
business in Ohio or with the Smiths. Neither Burke nor DeJesus appeared at the March 13th
hearing, and the magistrate recommended that judgment be awarded in favor of the Smiths. The
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magistrate’s decision included the following language, “[a]ny person may appeal to the [c]ourt
from any Order of a Magistrate by filing a Motion to set the Order aside * * * in accordance with
Civ.[R.] 53, within fourteen days of the filing of the order or ten days of a pretrial order.”
{¶4} Burke and DeJesus filed a motion to set aside the magistrate’s order and attached
affidavits in which they averred that they are both residents of Georgia and have never done
business in Ohio or with the Smiths. The trial court concluded the magistrate “ha[d] properly
determined the factual issues and appropriately applied the law” and entered judgment for the
Smiths. Burke and DeJesus now appeal and raise one assignment of error for our review.
II
Assignment of Error
THE DECISION MADE AGAINST THE APPELLANTS WAS IN ERROR
BECAUSE APPELLANTS HAVE NEVER DONE BUSINESS WITH
APPELLEES. APPELLANTS DO NOT LIVE IN OHIO NOR HAVE THEY
EVER CONDUCTED BUSINESS IN OHIO. APPELLANT BERKE (sic) DOES
NOT HAVE, NOR HAS HE EVER HAD ANY INVOLVEMENT WITH ANY
BUSINESS.
{¶5} In their sole assignment of error, Burke and DeJesus argue that the court erred by
entering judgment against them because the court lacked personal jurisdiction.
{¶6} “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).” Civ.R. 53(D)(3)(a)(iii). “In cases where the magistrate’s
decision does not notify the parties of [the] need to file objections, the appropriate remedy is for
this [C]ourt to reverse and remand the matter to the trial court for the magistrate to prepare a
decision which complies with Civ.R. 53(D)(3)(a)(iii), giving the parties an opportunity to file
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timely objections.” Keller v. Keller, 9th Dist. Summit No. 25967, 2012-Ohio-4029, ¶ 7. See
also Ball v. Meier, 9th Dist. Summit Nos. 26079 & 26109, 2012-Ohio-5864, ¶ 17-23.
{¶7} Here, the magistrate’s decision did not provide the notice required by Civ.R.
53(D)(3)(a)(iii). Instead, the decision erroneously informed the parties that they could appeal
the order by filing a motion to set aside the magistrate’s order. It appears Burke and DeJesus
relied on this language because they filed a motion to set aside the magistrate’s order, instead of
filing objections to the magistrate’s decision.
{¶8} The rule is clear that a magistrate’s decision must include a conspicuous notice of
a party’s right to object. Civ.R. 53(D)(3)(a)(iii). Because of the incorrect language in the
magistrate’s decision, Burke and DeJesus were not given notice of their right to object and, more
importantly, what would be required to properly support their objection in accordance with
Civ.R. 53. See Civ.R. 53(D)(3)(b).
{¶9} Because Burke and DeJesus relied on erroneous language in the magistrate’s
decision and were not given the required notice of their right to file objections, we reverse and
remand the matter for the magistrate to prepare a decision that complies with Civ.R.
53(D)(3)(a)(iii), thereby giving the parties the opportunity to file objections.
{¶10} Burke and DeJesus’ assignment of error is sustained.
III
{¶11} Burke and DeJesus’ assignment of error is sustained. The judgment of the
Barberton Municipal Court is reversed and the cause is remanded for further proceedings
consistent with this opinion.
Judgment reversed,
and cause remanded.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Barberton
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.
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 Appellees.
BETH WHITMORE
FOR THE COURT
MOORE, P. J.
BELFANCE, J.
CONCUR.
APPEARANCES:
LILLIAM DEJESUS and FRED BURKE, pro se, Appellants.
AMANDA L. SMITH and BRYAN P. SMITH, pro se, Appellees.