Hinkle v. Right Way Heating & Cooling, L.L.C.

[Cite as Hinkle v. Right Way Heating & Cooling, L.L.C., 2022-Ohio-1649.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
James Hinkle, :
Plaintiff-Appellant, : No. 21AP-665
(C.P.C. No. 20CV-7264)
v. :
(REGULAR CALENDAR)
Right Way Heating and Cooling, LLC, :
Defendant-Appellee. :
D E C I S I O N
Rendered on May 17, 2022
On brief: James Hinkle, pro se. Argued: James Hinkle.
On brief: Cook Sladoje & Wittenberg Co., L.P.A., and Eric J.
Wittenberg, for appellee. Argued: Eric J. Wittenberg.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, P.J.
{¶ 1} Plaintiff-appellant, James Hinkle, appeals from a judgment of the Franklin
County Court of Common Pleas in his favor, and against defendant-appellee, Right Way
Heating and Cooling, LLC ("Right Way"), for nominal damages as to Hinkle's trespass claim
against Right Way. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} In November 2020, Hinkle filed a complaint against Right Way for
trespassing on his property. Right Way moved to dismiss this claim, which was denied.
After the dispositive motion deadline passed, Right Way moved for leave to file a summary
judgment motion. The trial court denied Right Way's motion for leave and set the case for
a bench trial. The trial was held as scheduled, and the court entered final judgment in favor
of Hinkle. The trial court awarded $30 to Hinkle as nominal damages for Right Way's
No. 21AP-665 2
trespass on Hinkle's property, and thus it declined to award actual or punitive damages for
that property right violation. The trial court record on appeal does not contain a transcript
of the bench trial.
{¶ 3} Hinkle timely appeals.
II. Assignment of Error
{¶ 4} Hinkle assigns the following error for our review:
Courts/Improper Admission/Exclusion of Exhibits. Now I am
reintroducing my exhibit, as somehow my exhibit came up
missing even though they were accepted by the court on 11-30-
2020.
(Sic passim.)
III. Discussion
{¶ 5} We construe Hinkle's sole assignment of error as alleging the trial court erred
in not admitting his exhibit into evidence at the bench trial. He contends that if the trial
court had considered this exhibit, it would have awarded him actual and punitive damages.
Thus, he argues the trial court's nominal damages award of $30, for Right Way's trespass
on his property, was inadequate. This assignment of error is not well-taken.
{¶ 6} "[A] bedrock principle of appellate practice in Ohio is that an appeals court is
limited to the record of the proceedings at trial." Morgan v. Eads, 104 Ohio St.3d 142,
2004-Ohio-6110, ¶ 13. The appellant has the duty to ensure the record on appeal is
complete. Heinrichs v. 356 Registry, Inc., 10th Dist. No. 15AP-532, 2016-Ohio-4646, ¶ 68.
Thus, an appellant must "ensure that a transcript has been prepared and filed for this
court's review." State v. Justice, 10th Dist. No. 21AP-253, 2022-Ohio-87, ¶ 4; see App.R. 9.
If a transcript is unavailable, an appellant may "prepare a statement of the evidence or
proceedings from the best available means, including the appellant's recollection,"
pursuant to App.R. 9(C), or submit a joint statement of the case pursuant to App.R. 9(D).
See App.R. 9(B)(4). "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."
Maloney v. Maloney, 34 Ohio App.3d 9 (11th Dist.1986), syllabus.
{¶ 7} Determining the merit of Hinkle's assigned error requires our review of the
bench trial transcript, or an acceptable alternative, because the assigned error relates to the
exclusion of evidence at trial. Hinkle essentially argues that if the trial court had admitted
No. 21AP-665 3
and reviewed a photograph that he took of a person precariously reaching out the second
story window of a house, in conjunction with other exhibits concerning property
boundaries, it would have been compelled to award substantially more damages. But the
record contains no bench trial transcript, or an acceptable alternative to a transcript,
enabling our review of the trial court's actions at trial concerning any such evidence.
Instead of ensuring the bench trial transcript is properly before us for this review, Hinkle
simply attached a copy of the bench trial transcript to his reply brief. This action did not
make that copy part of the record on appeal, as statements in an appellate brief, or
attachments thereto, are not part of the record in determining the appeal. Cashlink, LLC
v. Mosin, Inc., 10th Dist. No. 12AP-395, 2012-Ohio-5906, ¶ 8. Although an appellant may
attach portions of "a properly furnished transcript to a brief as a matter of convenience for
the court," attaching a "photocopy of a transcript to a brief does not fulfill the appellant's
obligation to furnish the transcript as part of the record on appeal or comply with the
requirements of App.R. 9." Schroeder v. Watson, 10th Dist. No. 13AP-537, 2014-Ohio-711,
¶ 15. "[W]here the transcript was never filed as part of the record, appended photocopies
are not a means of circumventing the appellant's obligation to furnish the transcript." Id.Therefore, Hinkle failed to meet his obligation of properly furnishing the bench trial
transcript, or an acceptable alternative, that would enable this court to review any trial court
ruling relating to any exhibits he sought to introduce into evidence. Consequently, we
conclude that Hinkle has failed to demonstrate trial court error.
{¶ 8} Further, even if the bench trial transcript was properly before us for review,
it does not support Hinkle's assigned error. Hinkle alleges the trial court, in hearing his
trespass case against Right Way, erred in not considering the photograph of the person
reaching out the house window. But the transcript he submitted demonstrates the trial
court expressly inquired as to whether he, or Right Way, had any photographs or other
exhibits for its consideration, and neither party offered any exhibits into evidence. Thus,
Hinkle cannot demonstrate the trial court erred in not considering an exhibit that was not
even offered into evidence.
{¶ 9} For these reasons, we overrule Hinkle's sole assignment of error.
No. 21AP-665 4
IV. Disposition
{¶ 10} Having overruled Hinkle's sole assignment of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
JAMISON and NELSON, JJ., concur.
NELSON, J., retired, formerly of the Tenth Appellate District,
assigned to active duty under authority of Ohio Constitution,
Article IV, Section 6(C).