Galilee Missionary Baptist Church v. Bibby

[Cite as Galilee Missionary Baptist Church v. Bibby, 2011-Ohio-4610.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
GALILEE MISSIONARY BAPTIST C.A. No. 25746
CHURCH
Appellant
APPEAL FROM JUDGMENT
v. ENTERED IN THE
COURT OF COMMON PLEAS
WILLIAM M. BIBBY, et al. COUNTY OF SUMMIT, OHIO
CASE No. CV 2010-03-1608
Appellees
DECISION AND JOURNAL ENTRY
Dated: September 14, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} The pastor and a majority of the deacons of Galilee Missionary Baptist Church
decided to move out of the church’s sanctuary and begin holding services at a different location.
They later decided to lease the sanctuary to New Covenant Ministries of America. Several
months after moving to the new location, some of Galilee’s members, including Deacon Alcee
Butler, wanted to return to the sanctuary. When New Covenant stopped making its monthly
lease payments, the Galilee members who wanted to return to the sanctuary filed a forcible entry
and detainer action against New Covenant on behalf of Galilee. New Covenant counterclaimed
and filed a claim against Mr. Butler for frivolous conduct. The trial court referred the case to a
magistrate, who held three hearings. At the conclusion of the first hearing, he found that Galilee
had failed to prove that it was entitled to evict New Covenant. After the third hearing, he found
that the lease had been amended to allow New Covenant to retain possession of the sanctuary
2
until July 31, 2010. He, therefore, concluded that all of the other claims were moot. Galilee
objected to the magistrate’s decisions, but the trial court overruled its objections, adopted the
magistrate’s decision, and entered judgment denying Galilee’s claims. Galilee has appealed,
assigning seven errors. We affirm because Galilee did not file a transcript of the second or third
hearings and it does not have standing to appeal the trial court’s disposition of New Covenant’s
claim against Mr. Butler.
BACKGROUND
{¶2} Galilee was formed around 1916 and has owned the sanctuary at issue since 1927.
In July 2007, its members chose William Hunt to serve as their pastor. In 2008, Reverend Hunt
and a majority of Galilee’s deacons decided to move the church’s services from the sanctuary to
a new location. At the time of the decision, Mr. Butler was a deacon, but was inactive. In June
2009, Galilee entered into an agreement with New Covenant to lease the sanctuary for 20
months. Under the terms of the lease, New Covenant agreed to pay $5000 as a security deposit
and $600 a month in rent. The lease also gave New Covenant an option to purchase the
sanctuary.
{¶3} New Covenant made all of its payments until it learned that a faction of Galilee’s
members wanted to return to the sanctuary. At that point, it, allegedly, stopped making
payments. Because Galilee was no longer receiving rent, the faction that wanted to return to the
sanctuary, led by Mr. Butler, filed a forcible entry and detainer action against New Covenant on
behalf of Galilee. The complaint also sought damages for the unpaid rent. New Covenant
counterclaimed, alleging that Galilee had committed fraud. It also filed an indemnification claim
against Reverend Hunt and a frivolous conduct claim against Mr. Butler.
3
{¶4} A magistrate held a hearing on the claims on April 19, 2010. At the hearing, the
magistrate called Reverend Hunt as the court’s own witness. Although he allowed the parties to
cross-examine Reverend Hunt, the magistrate ended the hearing without allowing any of the
parties to call their own witnesses. Following the hearing, he entered an order finding that New
Covenant had paid all of the rent that was owed to Reverend Hunt and concluding, therefore, that
Galilee had failed to demonstrate that New Covenant should be evicted. The magistrate also
scheduled another hearing for May 13, 2010.
{¶5} Galilee moved to stay the magistrate’s order, arguing that it had not been allowed
to call any witnesses or present any exhibits regarding its forcible entry and detainer action. On
May 12, 2010, the trial court denied its motion without explanation. On May 13, 2010, the
magistrate held another hearing. A transcript of what occurred at that hearing is not in the
record. After the hearing, the magistrate entered an order scheduling a third hearing for June 30,
2010. A transcript of what occurred at the June 30, 2010, hearing is also not in the record.
{¶6} On July 9, 2010, the magistrate entered his decision. He found that Galilee and
New Covenant had modified the lease to allow New Covenant to occupy the sanctuary until July
31, 2010. He, therefore, determined that Galilee’s claims against New Covenant and New
Covenant’s claims against Galilee, Reverend Hunt, and Mr. Butler were moot. He also
determined that, to the extent that a dispute exists between the different factions of Galilee’s
membership, those issues were the subject of a different lawsuit. The magistrate recommended
that the trial court deny Galilee’s claims against New Covenant as long as New Covenant
complied with the amended lease, that it dismiss New Covenant’s counterclaim and its claim
against Reverend Hunt with prejudice, and that it dismiss New Covenant’s claim against Mr.
Butler without prejudice.
4
{¶7} Galilee filed 14 objections to the magistrate’s decision, contesting the way the
magistrate had conducted the hearings, his factual findings, and his conclusions of law. The trial
court overruled Galilee’s objections, concluding that it had failed to establish that it was entitled
to evict New Covenant. It also concluded that the lease addendum allowed New Covenant to
occupy the sanctuary as long as it complied with the addendum’s terms. It further concluded that
New Covenant’s claims and counterclaim were moot. While retaining jurisdiction to ensure that
New Covenant complied with the amended lease, the court dismissed New Covenant’s claims
against Galilee and Reverend Hunt with prejudice and its claim against Mr. Butler without
prejudice. Galilee has appealed, assigning seven errors.
DUE PROCESS RIGHTS
{¶8} Galilee’s first assignment of error is that the trial court incorrectly adopted the
magistrate’s decision even though the magistrate called only one witness at the April 19, 2010,
hearing, in violation of its constitutional rights and Chapter 2315 of the Ohio Revised Code. It
has argued that the magistrate did not allow it to call witnesses that it wanted to call in support of
its case.
{¶9} Section 2315.01(A) of the Ohio Revised Code explains the procedure a court
must use in jury trials “unless for special reasons the court otherwise directs.” Under Section
2315.08, the same procedure applies to bench trials. While the magistrate did not follow those
procedures at the April 19, 2010, hearing, we conclude that any error by the magistrate must be
regarded as harmless. See Civ. R. 61.
{¶10} Following the June 30, 2010, hearing, the magistrate determined that Galilee’s
eviction claim, which had been the subject of the April 19, 2010, hearing, was moot.
5
Specifically, it found that Galilee had entered into a lease addendum with New Covenant that
allowed New Covenant to occupy the sanctuary until July 31, 2010.
{¶11} Galilee has not provided this Court with a transcript of the May 13 or June 30
hearings. It is, therefore, impossible to determine whether the magistrate’s mootness finding is
supported by the record. “When portions of the transcript necessary for resolution of assigned
errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to
those assigned errors, the court has no choice but to presume the validity of the lower court’s
proceedings, and affirm.” Knapp v. Edwards Labs., 61 Ohio St. 2d 197, 199 (1980).
Accordingly, we will presume that the magistrate’s mootness determination, and the trial court’s
adoption of it, were correct. Because Galilee’s eviction claim is moot, we conclude that any
failure by the trial court to comply with Section 2315.01 at the April 19, 2010, hearing did not
affect its substantial rights. Civ. R. 61. (“The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the substantial rights of the
parties.”). Galilee’s first assignment of error is overruled.
MANIFEST WEIGHT
{¶12} Galilee has argued its next three assignments of error together. Its second
assignment of error is that the trial court incorrectly found that an agency relationship existed
between it and Reverend Hunt and that Reverend Hunt had express authority to sell or otherwise
dispose of the sanctuary. Its third assignment of error is that the trial court incorrectly found that
New Covenant could rely on Reverend Hunt’s representations without investigating the scope of
his authority to act on its behalf. Its fourth assignment of error is that the trial court’s judgment
is against the manifest weight of the evidence. Galilee has argued that the court incorrectly
6
concluded that the lease was amended to allow New Covenant to occupy the sanctuary until July
31, 2010.
{¶13} We must overrule Galilee’s assignments of error for the same reason as its first
assignment of error. Galilee failed to provide this Court with a transcript of the May 13 and June
30, 2010 hearings. We, therefore, must presume that competent, credible evidence was
presented at those hearings to support the magistrate and trial court’s finding that the lease had
been properly amended. Knapp v. Edwards Labs., 61 Ohio St. 2d 197, 199 (1980). Galilee’s
second, third, and fourth assignments of error are overruled.
FORCIBLE ENTRY AND DETAINER
{¶14} Galilee’s fifth assignment of error is that the trial court should have determined
that the magistrate did not comply with Chapter 1923 of the Ohio Revised Code. In particular, it
has argued that the magistrate did not comply with Section 1923.06.1 regarding the payment of
rent to the court and Section 1923.08 regarding the posting of bonds.
{¶15} Under Section 1923.06.1, “[i]n an action for possession of residential premises
based upon nonpayment of the rent . . . , the tenant or resident may counterclaim for any amount
he may recover under the rental agreement or under Chapter 3733. or 5321. of the Revised Code.
In that event, the court from time to time may order the tenant or resident to pay into court all or
part of the past due rent and rent becoming due during the pendency of the action.” Under
Section 1923.08, “[n]o continuance in an action under this chapter shall be granted for a period
longer than eight days, unless the plaintiff applies for the continuance and the defendant consents
to it, or unless the defendant applies for the continuance and gives a bond to the plaintiff, with
good and sufficient surety, that is approved by the court and conditioned for the payment of rent
that may accrue, if judgment is rendered against the defendant.”
7
{¶16} Galilee has argued that the magistrate was required to order New Covenant to
deposit its rent with the court under Section 1923.06.1 or post a bond under Section 1923.08
because the magistrate continued the case more than eight days beyond the original trial date.
Section 1923.06.1(B), however, only applies to “residential premises.” It also only provides that
the court “may” order a tenant to pay its rent to the court. The decision is completely
discretionary. Bester v. Owens, 2d Dist. No. 17388, 1999 WL 179261 at *2 (Mar. 31, 1999)
(“[If] a tenant asserts a counterclaim in an action based on nonpayment of rent, the determination
whether to require the tenant to escrow rent during the pendency of the action is committed to
the discretion of the trial court.”). There is also no evidence that New Covenant ever applied for
a continuance of the hearing. Section 1923.08, therefore, is inapplicable. Galilee’s fifth
assignment of error is overruled.
FRIVOLOUS CONDUCT
{¶17} Galilee’s sixth assignment of error is that the trial court incorrectly failed to
dismiss New Covenant’s claim against Mr. Butler with prejudice. According to Galilee, Mr.
Butler was not the proper subject of a claim for frivolous conduct because, under Section
2323.51 of the Ohio Revised Code, such claims may only be made against parties, which Mr.
Butler was not.
{¶18} “It is fundamental that [an] appeal lies only on behalf of a party aggrieved.” Ohio
Contract Carriers Ass’n Inc. v. Public Utils. Comm’n, 140 Ohio St. 160, 161 (1942); BFG
Federal Credit Union v. CU Lease Inc., 9th Dist. No. 22590, 2006-Ohio-1034, at ¶36 (“An
appeal lies only on behalf of the party who is aggrieved by the judgment.”) (quoting Sampson v.
Hughes, 4th Dist. No. 98CA2435, 1999 WL 552668 at *3 (July 22, 1999)). “The sole purpose of
an appeal is to provide the appellant an opportunity to seek relief in the form of a correction of
8
errors of the lower court that injuriously affected him.” BFG Federal Credit Union, 2006-Ohio-
1034, at ¶36 (citing Petitioners v. Bd. of Twp. Trustees, 4 Ohio App. 2d 171, 176 (1965)).
{¶19} Galilee has not alleged that it has an obligation to defend Mr. Butler or indemnify
him for any damages he might be required to pay if New Covenant renews its suit against him.
Accordingly, it has not established that it has been “injuriously affected” by the dismissal of New
Covenant’s claim against Mr. Butler without prejudice. See Ohio Contract Carriers Ass’n Inc. v.
Public Utils. Comm’n, 140 Ohio St. 160, 161 (1942) (noting that appellant’s “interest must be
immediate and pecuniary, and not a remote consequence of the judgment; a future, contingent or
speculative interest is not sufficient.”). We, therefore, conclude that Galilee does not have
standing to appeal the court’s decision on that issue. See Freeman v. Freeman, 9th Dist. No.
07CA0036, 2007-Ohio-6400, at ¶36 (concluding that husband was without standing to appeal
sanction imposed on wife’s lawyer). Galilee’s sixth assignment of error is overruled.
NUNC PRO TUNC
{¶20} Galilee’s seventh assignment of error is that the trial court incorrectly allowed the
magistrate to amend its decision nunc pro tunc while objections to the decision were pending. It
has argued that, although a magistrate may amend its decision if a party files a motion for
findings of fact and conclusion of law under Rule 52 of the Ohio Rules of Civil Procedure, it
does not have any authority to alter its decision after objections have been filed. According to
Galilee, once an objection is filed, a magistrate loses jurisdiction over the case until the trial
court refers the matter back to him.
{¶21} In his decision, the magistrate wrote that “[t]he frivolous conduct claim set out in
Count III of . . . New Covenant’s filing . . . is also moot as [Mr.] Butler has never been a part[y]
to this lawsuit. His name is only used as a receipt for mailings for [Galilee]. Should such claim
9
exist, if such exists, [it] is found to be seemingly inextricably linked to the new case . . . and not
this lawsuit.” New Covenant objected to the magistrate’s statement that Mr. Butler was not a
party, asserting that it had sued him for frivolous conduct. The magistrate, therefore, filed a
“Supplemental Decision” changing the above quoted language to “[t]he frivolous conduct claim
set out in Count III of . . . New Covenant’s filing . . . is also moot. If such claim exists, it is
found to be seemingly inextricably linked to the new case . . . and not this lawsuit.”
{¶22} Galilee has not cited any authority to support its argument that a magistrate may
not supplement his decision once objections have been filed. Even if the magistrate did not have
authority to supplement his decision, we fail to see how the attempt harmed Galilee. Under Rule
53(D)(4)(a) of the Ohio Rules of Civil Procedure, “a magistrate’s decision is not effective unless
adopted by the court.” Under Rule 53(D)(4)(b), “a court may adopt or reject a magistrate’s
decision in whole or in part, with or without modification.” While the court wrote in its
judgment that it was adopting the magistrate’s decision “as modified” by the supplemental
decision, it had authority to correct the magistrate’s clerical error regardless of whether his
supplemental decision was valid. We, therefore, conclude that the Galilee has not demonstrated
trial court error. Galilee’s seventh assignment of error is overruled.
CONCLUSION
{¶23} Because Galilee has failed to provide this Court with a transcript of each of the
hearings on its claims, we must presume that the trial court’s decision is correct. The judgment
of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
10
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, 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(E). 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 Appellant.
CLAIR E. DICKINSON
FOR THE COURT
BELFANCE, P. J.
WHITMORE, J.
CONCUR
APPEARANCES:
PAUL R. HOFFER, Attorney at Law, for Appellant.
JAMES E. BANAS, Attorney at Law, for Appellant.
DAVID R. KENNEDY, Attorney at Law, for Appellee.
HAROLD POLLOCK, Attorney at Law, for Appellee.