Balalovski v. Tanevski

[Cite as Balalovski v. Tanevski, 2021-Ohio-3990.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Aleksandar S. Balalovski, :
Plaintiff-Appellee, :
No. 20AP-447
v. : (C.P.C. No. 17CV-11123)
Dance Tanevski, : (REGULAR CALENDAR)
Defendant-Appellant, :
Lence Tanevski, :
Defendant-Appellee. :
D E C I S I O N
Rendered on November 9, 2021
On brief: Donnell & Thomas Law, and Titus G. Donnell, for
appellant. Argued: Titus G. Donnell.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Dance Tanevski (individually
"appellant"), from a judgment of the Franklin County Court of Common Pleas overruling
his objections to a magistrate's decision and entering judgment in favor of plaintiff-
appellee, Aleksandar S. Balalovski, on appellee's claim for breach of contract.
{¶ 2} On December 16, 2017, appellee filed a complaint, naming as defendants
Dance Tanevski and Lence Tanevski (collectively "the defendants"), and asserting causes of
action for breach of contract and unjust enrichment. The complaint alleged that, in early
2005, the defendants approached appellee about securing a loan to help them with financial
No. 20AP-447 2
difficulties. The complaint further alleged that appellee agreed to loan the defendants the
sum of $25,000, but that the defendants had failed to repay money owed to him under the
loan.
{¶ 3} By order of reference filed June 10, 2019, the matter was assigned to a
magistrate of the trial court who conducted a bench trial on October 7, 2019. The
magistrate subsequently issued a decision which included the following findings of fact and
conclusions of law.
{¶ 4} Appellee and the defendants are "members of the Macedonia community in
Central Ohio," having immigrated to the United States from Macedonia "many years ago."
The parties "know each other socially," and testimony was presented as to "the closeness of
this community, centered around its church, and the help and support that members of the
Macedonia community provide to each other." (Mag. Decision at 3.)
{¶ 5} Appellee "testified that members of the Macedonia community trust each
other," and that they "do business with each other, including loans, without 'papers' or
documentation." Appellee related "he has always been paid back when he has loaned
money to other members of the Macedonia community, and this is the first time that
someone has refused to repay money that was borrowed." (Mag. Decision at 3.)
{¶ 6} According to appellee, appellant "called him on September 2, 2004, and told
him that he was in big trouble with the Internal Revenue Service and that his money had
been frozen." Appellant "asked to borrow $2,500.00," and appellee "agreed to help * * *
and gave [appellant] $2,500.00 in cash the next day, September 3, 2004." (Mag. Decision
at 3.) Appellant asked appellee "not to tell his wife, Defendant Lence Tanevski, about the
loan," and appellant "promised to re-pay the loan in two (2) weeks." There was "no
discussion" between appellee and appellant "about interest on the loan or when [appellant]
had to pay back the money," and "[n]o documents were signed." (Mag. Decision at 4.)
{¶ 7} Appellee testified that the $2,500 loan on September 3, 2004 was "the first
of four (4) loans, totaling $25,000.00, that he made to [appellant] from 2004 through
August of 2005." At trial, appellee identified "Plaintiff's Exhibit 1, * * * a $2,500.00 cashed
check from [appellee's] account made payable to '5/3 Bank' dated September 3, 2004," and
"[t]he 'For' memo line of the check has 'Dance' written on it." Appellee stated "this was the
No. 20AP-447 3
check he cashed to get the $2,500.00 that he loaned to Dance Tanevski." (Mag. Decision
at 4.)
{¶ 8} Appellee testified he "loaned [appellant] another $2,500.00 in January of
2005, when [appellant] called him and said that he needed more money because it would
be longer than expected before his money was released by the IRS." Appellee "remembered
the conversation because it took place the day before Macedonia Christmas." Appellant
again "emphasized in his conversation" that appellee "should not tell [appellant's] wife or
children about the loan," and "[t]here was no discussion of interest being charged on the
loan." (Mag. Decision at 4.)
{¶ 9} Appellee identified "Plaintiff's Exhibit 2" as a "cashed check" in the amount
of $2,500 from appellee's account "made payable to '5/3 Bank' dated January 6, 2005," and
he noted "[t]he 'For' line of the check has 'Dance' written on it." (Mag. Decision at 4.)
Appellee stated "this was the check he cashed to get the second $2,500.00 that he loaned
to Dance Tanevski." (Mag. Decision at 4-5.)
{¶ 10} Appellee testified appellant "called him in April of 2005 and told him that he
needed $15,000.00 as soon as possible," and appellant "promised to repay [appellee] by
giving him the retirement money" appellant would receive in "November of 2005."
Appellee "agreed to loan [appellant] an additional $15,000.00." Appellee made the loan
to appellant by "giving him $5,000.00 in cash and a Bank One check in the amount of
$10,000.00." According to appellee, appellant "wanted the entire $15,000.00 loan in
cash," but appellee "was only willing to loan him $5,000.00 in cash." Appellant told
appellee that "he [appellee] was not the only one who had lent him money," but appellant
"promised he would pay him back." (Mag. Decision at 5.)
{¶ 11} Appellee provided testimony "as to Plaintiff's Exhibit 3, * * * an April 1
through April 30, 2005 Bank One statement for [appellee's] Home Equity Line of Credit."
The statement "shows a balance advance of $15,000.00 on April 14, 2005." Appellee "wrote
'10,000 check # 197156211, 5000 cash' on the statement to document the loan to Defendant
Dance Tanevski." Appellee identified "Plaintiff's Exhibit 4" as "an April 14, 2005 Bank One
check made payable to Dance Tanevski in the amount of $10,000.00." (Mag. Decision at
5.)
No. 20AP-447 4
{¶ 12} Appellant "admitted that he received a non-interest-bearing loan of
$10,000.00 from [appellee] in April of 2005, and that he cashed the check made payable
to him and marked as Plaintiff's Exhibit 4." (Mag. Decision at 5.) Appellant testified,
however, "he repaid the $10,000.00 loan in cash." The magistrate "did not find
[appellant's] testimony that he repaid the $10,000.00 loan in full in cash to be persuasive
or credible." (Mag. Decision at 6.)
{¶ 13} Appellee testified "his last loan to [appellant] was on August 17, 2005, in the
amount of $5,000.00." On August 5, 2005, appellant requested a loan, stating to appellee
" '[m]y credit is bad.' " Appellant "suggested that the loan come from [appellee's] IRA."
Appellee agreed to loan appellant "an additional $5,000.00," but he "did not take the
money from his IRA." Instead, appellee "cashed a check representing an advance on his
equity home line of credit" with his credit union "and then gave the $5,000.00 in cash to
[appellant]." (Mag. Decision at 6.)
{¶ 14} On August 17, 2005, appellee "unilaterally 'consolidated' the money he
loaned" to appellant by withdrawing $25,000 from a home equity line of credit. Appellee
"testified that it was then his intent to charge [appellant] whatever interest rate the bank
charged him on this advance." Appellee "admitted that he did not discuss his consolidation
plan with [appellant] and did not discuss this change in 'terms,' i.e. the charging of interest
on the loans with [appellant]." (Mag. Decision at 6.)
{¶ 15} Appellee testified as to "Plaintiff's Exhibit 5(A)-(D), which is four pages of 15
copied receipts." Appellee stated he gave appellant "a written receipt every time [appellant]
made a payment on his loans," giving appellant "the top, white copy," while appellee "kept
the bottom, yellow, 'carbon' copy." (Mag. Decision at 7.)
{¶ 16} Appellee testified that appellant "repaid him $7,250.00 on the loans." The
magistrate found that testimony was "supported by" an exhibit attached to appellee's
complaint "which notes payments on the loans of $7,250.00 between September 4, 2005
and October 15, 2012, most, but not all, of which are reflected in the receipts comprising
Plaintiff's [Exhibit] 5(A)-(D)." (Mag. Decision at 7.) The magistrate therefore found
appellee's testimony that appellant repaid him $7,2500 on the loans to be "credible, reliable
and persuasive." (Mag. Decision at 8.)
No. 20AP-447 5
{¶ 17} Appellee stated appellant "stopped making payments in late 2012, but
repeatedly told [appellee] that 'I am working on it' or that he would get money from his
IRA." Appellant "[e]ventually * * * stopped returning [appellee's] phone calls and
messages." According to appellee, appellant "never disputed the amounts/balances written
on the receipts given to him." (Mag. Decision at 8.)
{¶ 18} Appellee testified as to "Defendant's Exhibit 5, a June 8, 2015 letter from
[appellee] to 'Mr. and Mrs. Tanevski' about collection of the remaining balance of the
$25,000.00 in loans." Appellee wrote the letter because "he heard that [appellant] had
borrowed money from other people and never repaid them." Appellee also testified as to
"Defendant's Exhibit 6, a September 1, 2016 letter from [appellee] to 'Danche.' " In the
letter, appellee "referenced a July 2015 conversation with [appellant] about repaying the
loan and [appellant's] request for two more months to pay it off. The letter also gives
[appellant] 'two more weeks to pay * * * the total balance of $28,772.47 * * * minus 2 suites
[sic], one sports coat, and time for alterations.' " (Mag. Decision at 9.)
{¶ 19} Appellant "admitted at trial that he received the June 8, 2015 and
September 1, 2016 letters from [appellee] related to the loans * * * but he never responded
to them." Appellant "said that the letters were 'laughable,' and he didn't respond because
he didn't owe [appellee] any money." (Mag. Decision at 9.)
{¶ 20} Appellee "admitted" that appellant's wife, "Defendant Lence Tanevski[,]
knew nothing about the loans that [appellant] took from him." (Mag. Decision at 9.) On
cross-examination, appellee "admitted * * * there were no terms in the parties' verbal
agreement about interest because [appellant] was to repay the first loan within two weeks,"
but appellee "began to unilaterally charge [appellant] interest when [appellee] consolidated
the loans on August 17, 2006 via a home equity line of credit advance and the bank charged
him interest." (Mag. Decision at 10.)
{¶ 21} Appellant testified he provided appellee "with tailoring services and that he
used his company's expense account to buy suits at a discount for [appellee] and his son."
Appellant "did not offer any testimony as to the amount actually paid for the suits he
purchased at cost for [appellee] or the exact number of suits provided." (Mag. Decision at
11.)
No. 20AP-447 6
{¶ 22} Appellant denied borrowing $2,500 from appellee "on September 3, 2004,"
and he denied borrowing $2,500 from him "on January 6, 2005." Appellant "admitted that
he borrowed $10,000.00 in April of 2005, but denied receiving $5,000.00 in cash at the
same time, and denied all other loans." Instead, appellant "testified that he asked [appellee]
for $15,000.00 in April of 2005, but [appellee] refused and only gave him the $10,000.00."
Appellant "admitted that he asked [appellee] not to tell his wife because he was using the
money to help his sick brother in France and didn't want her to know," and he "wanted to
keep it a secret." According to appellant, he gave appellee "10,000.00 in cash to repay the
loan in June of 2005 at his son's graduation party, and that he did not get a receipt." (Mag.
Decision at 12.)
{¶ 23} Despite the claim "he had repaid the loan in full in June of 2005, [appellant]
admitted that he gave [appellee] a check for $1,200.00 on November 29, 2011 and a check
for $864.00 on February 10, 2012." Appellant's admission "was supported by the receipts
found on Plaintiff's Exhibit 5(D) and page 4 of Defendant's Exhibit 4, showing payments by
check to [appellee]." Appellant "claimed that he gave [appellee] these checks for more than
two thousand dollars ($2,000.00) six (6) years after he repaid the loan in full because
[appellee] was threatening him and 'keeping me hostage.' " The magistrate did not find
this testimony credible, noting appellant's "own exhibit, Defendant's Exhibit 7, shows that
[appellant] made fourteen (14) payments to [appellee] after he allegedly paid back the loan
in full in 2005, and that another $500.00 was paid on October 15, 2012, which was after
the check for $864.00 on February 10, 2012." (Mag. Decision at 12.)
{¶ 24} In response to an inquiry by the magistrate regarding "where the numbers
1200 and 864 had come from in terms of making payments to [appellee], because they do
not appear to be random, even numbers, [appellant] had no explanation for the court and
said that he did not know and perhaps that is all he had in his bank account at the time."
Appellant testified he "never got a receipt from [appellee] and that every receipt in
Plaintiff's Exhibit 5(A)-(D) * * * is 'made up.' " In "so testifying," the magistrate found
appellant "ignored his admission that two of the three receipts on the fourth page of the
exhibits are correct, both in terms of dates and amounts, as evidenced by the checks he
admitted that he wrote to [appellee] on November 29, 2011 and February 10, 2012." (Mag.
Decision at 13.)
No. 20AP-447 7
{¶ 25} Appellant denied having "financial problems" or "problems with the IRS, and
he also denied making bets on horses or losing money at the racetrack. He admitted,
however, "he has been to the Kentucky Derby and goes to the local race track perhaps a
half-dozen times a year." Appellant "admitted that he was the secretary" at a local
Macedonian church, but he "denied stealing money from the church." He further admitted
entering "into a 2002 confidential settlement agreement with [the church] where he paid
the church $13,000.00 because there was money missing related to the church's reception
hall." Appellant "denied any wrongdoing, but admitted he was responsible because he was
in charge of bookkeeping for the church/reception hall," and he "characterized his
obligation to repay the church as the subject of 'bookkeeping errors.' " (Mag. Decision at
13.)
{¶ 26} Appellant admitted that "in 2008 he had an adjustable mortgage that was
getting too high," and he "conveyed his house to [P.H.] for $13,000.00 less than he bought
if for, with a release of the mortgage, and then rented the house from [P.H.] for $1,500.00
a month." (Mag. Decision at 13-14.) Four years ago, appellant's children "bought the house
from [P.H.], and since that time [appellant] and [his wife] have lived in the house for free."
The magistrate "did not find Defendant Dance Tanevski to be a credible witness." (Mag.
Decision at 14.)
{¶ 27} Appellant's spouse, Lence, "testified that she knew nothing about the money
that her husband borrowed from [appellee] until November of 2016, when she was accosted
by [appellee's] wife at Kroger." Lence further testified "she never borrowed any money
from [appellee] and never received any money from [him]." The magistrate "found Lence
Tanevski to be a credible witness." (Mag. Decision at 14.)
{¶ 28} On October 29, 2019, the magistrate issued a decision finding appellee
proved his claim for breach of contract against appellant for four oral contracts/loans, and
proved entitlement to compensatory damages in the amount of $17,240. The magistrate
found appellee did not prove a claim for breach of contract against Lence Tanevski, nor did
appellee show entitlement to recovery against the defendants based on a theory of unjust
enrichment.
No. 20AP-447 8
{¶ 29} On February 24, 2020, appellant filed objections to the magistrate's decision.
By decision and entry filed August 27, 2020, the trial court overruled appellant's objections
and adopted the decision of the magistrate.
{¶ 30} On appeal, appellant sets forth the following two assignments of error for this
court's review:
I. THE TRIAL COURT ERRED BY FAILING TO APPLY THE
APPROPRIATE STANDARD OF PROOF FOR
ESTABLISHING THE EXISTENCE OF AN ORAL
CONTRACT.
II. THE TRIAL COURT ERRED IN FINDING THAT
PLAINTIFF-APPELLEE HAD SHOWN THE EXIST[E]NCE
OF AN ORAL CONTRACT, AND DAMAGES ARISING
THEREFROM, PURSUANT TO THE APPROPRIATE
STANDARD OF PROOF.
{¶ 31} Appellant's assignments of error are interrelated and will be considered
together. Under these assignments of error, appellant asserts the trial court erred in failing
to apply the appropriate standard of proof for establishing the existence of an oral contract,
and in finding appellee proved an oral contract and resulting damages.
{¶ 32} Civ.R. 53(D)(4)(d) states in part: "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."
{¶ 33} In accordance with Civ.R. 53(D)(4)(b), a trial court's review of a magistrate's
decision is "de novo." Mackenbach v. Mackenbach, 3d Dist. No. 6-11-03, 2012-Ohio-311,
¶ 9, citing Goldfuss v. Traxler, 3d Dist. No. 16-08-12, 2008-Ohio-6186, ¶ 7, citing Stumpff
v. Harris, 2d Dist. No. 21407, 2006-Ohio-4796, ¶ 16. Although "a trial court is required to
independently review the record and make its own factual and legal findings, the trial court
may rely upon the magistrate's credibility determinations when it reviews the magistrate's
decision." Id., citing Gilleo v. Gilleo, 3d Dist. No. 10-10-07, 2010-Ohio-5191, ¶ 47, citing
Hendricks v. Hendricks, 3d Dist. No. 15-08-08, 2008-Ohio-6754, ¶ 25, citing Osting v.
Osting, 3d Dist. No. 1-03-88, 2004-Ohio-4159. After completing its de novo review, the
No. 20AP-447 9
court may "adopt, reject, or modify the magistrate's decision." Id., citing Tewalt v. Peacock,
3d Dist. No. 17-10-18, 2011-Ohio-1726, ¶ 31.
{¶ 34} In general, " ' "the appellate standard of review when reviewing a trial court's
adoption of a magistrate's decision is an abuse of discretion." ' " Pappas v. FM2, LLC, 10th
Dist. No. 17AP-258, 2017-Ohio-8548, ¶ 31, quoting Gilson v. Am. Inst. of Alternative
Medicine, 10th Dist. No. 15AP-548, 2016-Ohio-1324, ¶ 77, quoting Mayle v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 09AP-541, 2010-Ohio-2774, ¶ 15. Further, "a trial court's
decision will not be reversed on appeal as being against the manifest weight of the evidence
as long as there is some competent, credible evidence to support the decision." Huntington
Natl. Bank v. Findlay Machine & Tool, Inc., 3d Dist. No. 5-11-27, 2012-Ohio-748, ¶ 23,
citing Cichanowicz v. Cichanowicz, 3d Dist. No. 3-08-04, 2008-Ohio-4779, ¶ 20, citing
Duer v. Moonshower, 3d Dist. No. 15-03-15, 2004-Ohio-4025, ¶ 15.
{¶ 35} Appellant initially contends the trial court erred in failing to sustain his
objection to that part of the magistrate's decision rejecting appellant's proposition that the
applicable standard of proof in showing the existence of an oral contract is clear and
convincing evidence (as opposed to the preponderance of the evidence standard applicable
in most civil cases). Appellant argues that, in adopting the magistrate's decision, the trial
court specifically declined to apply the clear and convincing standard on the basis that
neither the Tenth District nor the Supreme Court of Ohio had yet adopted the clear and
convincing standard to establish the existence of an oral contract outside the statute of
frauds.
{¶ 36} The record indicates that, following the magistrate's bench trial, appellant
submitted proposed findings of fact and conclusions of law, asserting appellee's burden of
proof in seeking to enforce an oral contract was by clear and convincing evidence. In
support, appellant cited the decision of the Fourth District Court of Appeals in Bumgarner
v. Bumgarner, 4th Dist. No. 09CA22, 2010-Ohio-1894, ¶ 20 (holding "[t]he burden of proof
on one seeking to enforce an oral contract requires that party to prove the existence of the
contract by clear and convincing evidence"). In his objections to the magistrate's decision,
appellant argued the magistrate erroneously declined to adopt the clear and convincing
standard of proof.
No. 20AP-447 10
{¶ 37} In addressing this objection, the trial court, while noting the magistrate
"rejected Defendant's theory * * * on the grounds that neither the Tenth District Court of
Appeals nor the Supreme Court of Ohio has adopted the holding from Bumgarner[,]"
further observed the magistrate's decision "finds that either under a preponderance of the
evidence or by clear and convincing evidence, Plaintiff entered into four oral agreements
with Defendant Dance Tanevski." (Trial Court's Decision at 2.)
{¶ 38} A review of the magistrate's decision supports the trial court's determination
on this issue. Specifically, the trial court cited the following passage from the magistrate's
decision: "By the greater weight of the evidence, indeed by clear and convincing evidence,
the Magistrate finds and concludes that, via language and conduct as well as the exhibits in
this case, Plaintiff Aleksander Balalovski entered into four (4) oral contracts with Defendant
Dance Tanevski for the loan of $25,000.00." (Emphasis added.) (Mag. Decision at 16.)
{¶ 39} Thus, as noted by the trial court, the magistrate concluded appellee satisfied
his burden to prove his claim for breach of contract under either a preponderance or clear
and convincing evidence standard. Because the record indicates the magistrate applied the
higher clear and convincing standard of proof to the evidence presented, appellant has
failed to demonstrate prejudice. Accordingly, the trial court did not abuse its discretion in
overruling this objection.
{¶ 40} Appellant further contends the trial court erred in adopting the magistrate's
finding that appellee proved the existence of a contract and damages with reasonable
certainty. In his objection to the magistrate's decision, appellant argued appellee was
unable to articulate the essential terms of the transaction, including the interest rate he was
charging and the amount he sought to collect, with required certainty.
{¶ 41} A contract is defined to mean "a promise, or a set of promises, that is
actionable upon breach." Depompei v. Santabarbara, 8th Dist. No. 101163, 2015-Ohio-18,
¶ 21. In order to succeed on a claim for breach of contract, "a party must prove the existence
of a contract, the party's performance under the contract, the opposing party's breach, and
resulting damage." Id. at ¶ 20. See also Becker v. Direct Energy, LP, 2d Dist. No. 27957,
2018-Ohio-4134, ¶ 38, quoting Doner v. Snapp, 98 Ohio App.3d 597, 600 (2d Dist.1994)
("The elements of a breach of contract claim are 'the existence of a contract, performance
by the plaintiff, breach by the defendant, and damage or loss to the plaintiff.' ").
No. 20AP-447 11
{¶ 42} Under Ohio law, "[t]he existence and the terms of an oral contract are issues
for the trier of fact, and an appellate court will not reverse the trial court's decision when it
is supported by some competent, credible evidence." Depompei at ¶ 21. Because "[p]roof
of the terms of an oral contract rarely exists with the level of formality found in written
contracts[,] * * * the terms of an oral contract may be shown from the parties' words, deeds,
acts, and silence." Kodu v. Medarametla, 1st Dist. No. C-160319, 2016-Ohio-8020, ¶ 9,
citing Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶ 15. Moreover, " '[c]omplete
clarity in every term of the agreement is unnecessary because all agreements have some
degree of indefiniteness and uncertainty.' " Depompei at ¶ 22, quoting Advantage
Renovations, Inc. v. Maui Sands Resort Co. LLC., 6th Dist. No. E-11-040, 2012-Ohio-1866,
¶ 18. Instead, "the goal in enforcing oral contracts is to hold people to the promises they
make." Id. In order to demonstrate that a particular transaction was a loan, "the trial court
may consider the relationship of the parties and an individual's need for the loan." Id. at
¶ 21.
{¶ 43} With respect to appellant's objection challenging the issue of interest, the trial
court noted (and we agree) the magistrate found the agreements of the parties did not
include interest to be paid on the amount borrowed and, therefore, the magistrate found
appellee was not entitled to pre-judgment interest. The trial court also addressed
appellant's contention that appellee was unable to prove the exact amount he sought from
appellant with certainty. In support of this objection, appellant cited a portion of the trial
transcript in which appellee testified he was seeking "close to $28,000, the principal and
interest." (Tr. at 85.) The trial court found "the citation supplied by [appellant] does not
show that [appellee] failed to prove the amount owed * * * with certainty," noting that
appellant "fails to address the findings of fact wherein the Magistrate recounted the
testimony that demonstrated the amount [appellant] agreed to repay but failed to repay."
(Trial Court Decision at 3.)
{¶ 44} Appellant's contention the trial court erred in adopting the magistrate's
finding that appellee proved the existence of a contract and damages is primarily a manifest
weight challenge. Under Ohio law, "[j]udgments supported by some competent, credible
evidence going to all the essential elements of the case will not be reversed by a reviewing
court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Constr.
No. 20AP-447 12
Co., 54 Ohio St.2d 279, 280 (1978). In general, "damages in a contract action is the sum
necessary to place the nonbreaching party in as good a position as he would have been had
the contract been fully performed." Depompei at ¶ 20.
{¶ 45} Based on the evidence presented, the magistrate in this case found appellee
entered into four oral contracts with appellant for a total loan amount of $25,000.
Specifically, the magistrate found the parties entered into agreements for loan amounts of
$2,500 (on September 3, 2004), $2,500 (on January 6, 2005), $15,000 (on April 14, 2005),
and $5,000 (on August 17, 2005), respectively. As noted, the magistrate determined the
parties' agreement did not include interest to be paid on the amounts borrowed.
{¶ 46} During the bench trial, appellee testified that appellant approached him in
September 2004 stating he was in trouble with the IRS and that his money was "frozen."
(Tr. at 16.) Appellee testified that he gave appellant $2,500 in cash the next day. Counsel
for appellee submitted, as Exhibit 1, a copy of a check dated September 3, 2004, payable to
cash and the notation "for Dance" on the memo line. (Tr. at 20.) Appellant promised to
pay him back "within two weeks." Appellee testified that appellant requested another loan
in the amount of $2,500, stating it was "going to take a little longer for my money to be
released." (Tr. at 22.) Appellee identified as Exhibit 2 a copy of a check, dated January 6,
2o05, payable to cash in the amount of $2,500 in which the notation "For Dance" was again
written on the memo line. (Tr. at 24.)
{¶ 47} Appellee related that appellant made a third request for money, telling
appellee he was "in big trouble" and that he did not "want to be killed." (Tr. at 25.) Appellee
stated he provided appellant $5,000 in cash as well as a check in the amount of $10,000
payable to appellant and dated April 14, 2005. While appellant acknowledged receiving
and cashing this check, he claimed to have paid appellee $10,000 in cash during a
graduation party, a claim the magistrate deemed not credible. Appellee testified as to a
final loan he made to appellant in the amount of $5,000 on August 17, 2005. Appellee also
testified that he provided copies of receipts to appellant for amounts appellant paid on the
debt, and that appellant never disputed the amount of the balance due.
{¶ 48} Regarding appellant's testimony that he repaid the money he borrowed, the
magistrate did not find appellant's testimony "credible or persuasive." While there was
some conflicting evidence as to how much appellant repaid, the magistrate found "the
No. 20AP-447 13
competent, credible, persuasive and convincing evidence at trial established" that appellant
repaid appellee "7,250.00 of the $25,000.00 he borrowed." (Mag. Decision at 16.) The
magistrate found testimony as to the amount repaid "was supported by the December 11,
2017 exhibit attached to Plaintiff's complaint (Defendants' Exhibit 7/B), which notes
payments on the loans of $7,250.00 between September 4, 2005 and October 15, 2012,
most * * * of which are reflected in the receipts comprising Plaintiff's [Exhibit] 5(A)-(D)."
(Mag. Decision at 7.)
{¶ 49} On review, we find no error by the trial court in adopting the decision of the
magistrate finding sufficient evidence that appellee and appellant entered into four oral
loan agreements totaling $25,000, and that appellee proved entitlement to compensatory
damages in the amount of $17,250. As noted, appellant's argument is essentially a manifest
weight challenge implicating the credibility determinations of the magistrate who, as trier
of fact, heard conflicting testimony by appellee and appellant regarding their interactions
and found credible the testimony of appellee. The magistrate further found the supporting
documents/exhibits submitted by appellee to be credible, corroborative evidence of the
four loan agreements. The evidence before the magistrate included appellant's admission
that he cashed a check from appellee in the amount of $10,000 in April 2005. While
appellant claimed he paid this amount back in cash to appellee at a graduation party, the
magistrate found his testimony not credible and noted evidence appellant had made 14
payments to appellee years after he purportedly paid the loan in full (in 2005). Here, the
magistrate was tasked with considering the conflicting testimony regarding the amount of
the money lent and repaid, and we find no abuse of discretion by the trial court in accepting
the findings of the magistrate and in overruling appellant's objection challenging the
magistrate's determination appellee had proven his damages with reasonable certainty.
{¶ 50} Based on the foregoing, appellant's two assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BEATTY BLUNT and MENTEL, JJ., concur.
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