PHH Mtge. Corp. v. Ramsey

[Cite as PHH Mtge. Corp. v. Ramsey, 2014-Ohio-3519.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
PHH Mortgage Corporation fka :
Cendant Mortgage Corporation dba
Coldwell Banker Mortgage, :
Nos. 13AP-925
Plaintiff-Appellant, : and 14AP-129
(C.P.C. No. 09CVE11-16763)
v. :
(REGULAR CALENDAR)
Andrew Ramsey et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on August 14, 2014
Lerner, Sampson & Rothfuss LPA, Adam R. Fogelman, and
Brad Terman, for appellant.
Doucet & Associates Co., L.P.A., and Troy J. Doucet, for
appellee Andrew Ramsey.
APPEALS from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} PHH Mortgage Corporation (individually "PHH") fka Cendant Mortgage
Corporation dba Coldwell Banker Mortgage (individually "Coldwell Banker"), plaintiff-
appellant, appeals judgments of the Franklin County Court of Common Pleas, in which
the court granted judgment in favor of Andrew Ramsey ("appellee") and Precision Real
Estate Group, LLC ("Precision"), defendants-appellees (referred to singularly as
"appellee").
{¶ 2} In 2003, appellee purchased real estate for use as a rental property. He
executed a promissory note payable to Coldwell Banker and used the funds to finance the
Nos. 13AP-925 and 14AP-129 2
real estate purchase. The note was secured by a mortgage in favor of Coldwell Banker.
After the closing, appellee deeded the property to Precision. PHH subsequently became
the holder of the note and mortgage.
{¶ 3} Appellee made timely monthly payments until August 2009, at which time
he attempted to pay his monthly mortgage through a "pay now"
link on PHH's website, referred to as "Speedpay," as he had been doing for six years.
However, when he attempted to do so on August 3, 2009, he received an error message
informing him that his payment could not be processed. He tried again on August 6 and
10 but received the same error message. On August 13, 2009, appellee tried to pay online
again via Speedpay, and this attempt appeared successful, but he did not receive a
confirmation number. Appellee telephoned the Coldwell Banker help line and was told
this his payment would be "pushed" through the system, and he was given a confirmation
number for his August 2009 payment.
{¶ 4} On August 16, 2009, PHH sent a notice to appellee informing him that his
payment was late. Appellee again telephoned the help line and was told that the website
was having problems but his payment would be processed.
{¶ 5} On September 3, 2009, appellee went to PHH's website to make his
September payment, and he realized that his August 2009 payment had still not been
credited. He attempted to make an online payment via Speedpay and received an error
message.
{¶ 6} Appellee telephoned Coldwell Banker and explained the circumstances. The
representative told him that his payment would be processed, but the late payment would
be reported to credit bureaus, and there was no one else who could help him. Appellee
insisted on speaking to another customer service representative who had the authority to
help him, but the help line representative refused and hung up the phone.
{¶ 7} On September 8, 2009, PHH issued appellee a notice of intent to foreclose.
{¶ 8} On September 9, 2009, appellee traveled to Coldwell Banker's physical
office to make payments but he was told by representatives that the office did not accept
payments. Appellee contacted the real estate agent who sold him the house and the agent
gave him the name of a Coldwell Banker representative. Appellee spoke to the
representative but the representative never contacted him again as to a solution.
Nos. 13AP-925 and 14AP-129 3
{¶ 9} On September 10, 2009, appellee mailed a payment for August and
September 2009 to Coldwell Banker, with an explanation of the circumstances, but the
payment was never processed or returned to him.
{¶ 10} On October 5, 2009, appellee mailed to Coldwell Banker a payment for
October and November 2009, along with an explanation of the circumstances, but the
payment was never processed or returned. Appellee made no attempt at payments after
December 2009.
{¶ 11} During the time PHH was attempting to foreclose on the property, appellee
had a renter leasing the property. On numerous occasions, PHH's representatives
attempted to "winterize" the home and change the door locks, ultimately resulting in
appellee's inability to continue renting the premises to a tenant.
{¶ 12} On November 10, 2009, PHH filed a complaint in foreclosure against
appellee, as well as several others. PHH later added Precision as a defendant. On April 27,
2011, PHH filed a motion for summary judgment, which the trial court granted. Appellee
appealed, and we reversed the trial court's decision in PHH Mtge. Corp. v. Ramsey, 10th
Dist. No. 11AP-559, 2012-Ohio-672 ("Ramsey I"), finding there existed genuine issues of
material fact regarding whether appellee defaulted in his payment of the note.
{¶ 13} On remand, the matter was heard before a magistrate pursuant to a bench
trial. On July 17, 2013, the magistrate filed a decision, in which the magistrate denied
PHH foreclosure and awarded appellee judgment for $1,550. PHH filed objections to the
magistrate's decision. On October 2, 2013, the trial court overruled the objections. On
January 17, 2014, the trial court issued a nunc pro tunc judgment related to the October 2,
2013 judgment. PHH appeals the judgments of the trial court, asserting the following
assignments of error:
I. The trial court erred by denying PHH Mortgage a judgment
on its note against Mr. Ramsey.
II. The trial court erred by not granting foreclosure of the
mortgage.
III. The trial court erred by not addressing the reformation of
mortgage in its decision.
Nos. 13AP-925 and 14AP-129 4
{¶ 14} PHH argues in its first assignment of error that the trial court erred when it
denied PHH judgment against appellee on the note. After properly referring a matter to a
magistrate, the court has the option to adopt, reject or modify a magistrate's decision,
hear additional evidence, recommit the matter with instructions or hear the matter. Id.DeSantis v. Soller, 70 Ohio App.3d 226, 232 (10th Dist.1990). On appeal, we review the
record of the trial court for an abuse of discretion. Marchel v. Marchel, 160 Ohio App.3d
240, 2005-Ohio-1499, ¶ 7 (8th Dist.). An abuse of discretion is more than an error of law
or judgment; rather, it implies an attitude that is arbitrary, unreasonable or
unconscionable. George v. Ohio Dept. of Human Servs., 145 Ohio App.3d 681, 686 (10th
Dist.2001). An abuse of discretion may be found when the trial court "applies the wrong
legal standard, misapplies the correct legal standard, or relies on clearly erroneous
findings of fact." Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, ¶ 15 (8th
Dist.). However, for questions of law, we review such de novo. State v. Vinson, 11th Dist.
No. 2013-L-015, 2013-Ohio-5826, ¶ 8.
{¶ 15} Furthermore, as to civil judgments, "[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. Co., 54 Ohio St.2d 279 (1978), syllabus. When considering
whether a civil judgment is against the manifest weight of the evidence, an appellate court
is guided by a presumption that the findings of the trier of fact were correct. Seasons Coal
Co. v. Cleveland, 10 Ohio St.3d 77, 79-80 (1984). An appellate court should not substitute
its judgment for that of the trial court when there exists competent and credible evidence
supporting the findings of fact and conclusions of law rendered by the trial judge. Id. at
80.
{¶ 16} In its decision in the present case, the trial court adopted the magistrate's
decision and overruled PHH's objections. The magistrate found that appellee did not
default on the terms of the note and mortgage. The magistrate determined that, despite
PHH's claim that appellee did not have the contractual right to make his payments
electronically; PHH waived the terms of the contract by accepting electronic payments
from appellee for six years without objection. The magistrate concluded that the August
2009 payment was properly made. The magistrate observed that the contract
Nos. 13AP-925 and 14AP-129 5
contemplated, via the provision for late fees, that payment would occasionally be
technically late but still within the proper performance obligations of appellee, and PHH
waived strict performance of the term relating to the contractual due date by accepting
appellee's payments after the deadline on many occasions. The magistrate also found the
anti-waiver provisions in the note and mortgage were inoperative under the present facts.
With regard to the anti-waiver provision in the note, the magistrate found the provision
was only operative if there was a default, and there was no default here. With regard to the
anti-waiver provision in the mortgage agreement, the magistrate found that the provision
was only operative when the lender accepted partial or insufficient payment, which was
not the situation in the present action.
{¶ 17} PHH argues herein that appellee tendered neither the August 1, 2009
payment nor sufficient payments thereafter and, thus, was in default. PHH asserts that
appellee could not rely upon his attempts to pay via Speedpay because that system was
controlled by Western Union and not PHH and, as such, did not constitute payments
"tendered" to PHH. PHH contends that appellee needed to show not simply that he sent a
payment through Speedpay, but that PHH had knowledge and receipt of the payment,
which it did not. Therefore, PHH argues, appellee was in breach of the agreement when
he failed to tender his August 1, 2009 payment, and when he later tried to tender his
August, September, October, and November payments without the late charges and other
expenses required under the agreement; he was in continued breach of the agreement.
{¶ 18} After a review of the record and testimony in this case, we agree with the
magistrate's findings. Under Section 1 of the note, appellee promised to "pay" the lender
the mortgage amount, plus interest, in the form of "cash, check or money order." Under
Section 3 of the note, appellee agreed to "pay" the lender by making a payment on the first
day of each month. Also under Section 3, appellee agreed to make payment at an address
specified in the note, "or at a different place if required by the Note Holder." Section 6 of
the note provided, in pertinent part, that if PHH did not "receive" the full amount of the
monthly payment by the end of 15 calendar days after the date it was due, appellee would
pay a late charge to PHH. Section 6 further provided that if appellee did not "pay" the full
amount of each monthly payment on the date it was due, appellee would be in default.
Nos. 13AP-925 and 14AP-129 6
{¶ 19} This court explained the rule of waiver as it applies to contracts in EAC
Properties, L.L.C. v. Brightwell, 10th Dist. No. 10AP-853, 2011-Ohio-2373, ¶ 21-23:
As applied to contracts, waiver is a voluntary relinquishment
of a known right. State ex rel. Wallace v. State Med. Bd. of
Ohio, 89 Ohio St.3d 431, 435, 732 N.E.2d 960, 2000-Ohio-
213. "Waiver assumes one has an opportunity to choose
between either relinquishing or enforcing of the right." Chubb
v. Ohio Bur. of Workers' Comp.[,] 81 Ohio St.3d 275, 279, 690
N.E.2d 1267, 1998-Ohio-628. A party who has a duty to
perform and who changes its position as a result of the waiver
may enforce the waiver. Id. at 279, 690 N.E.2d 1267, citing
Andrews v. State Teachers Retirement Sys. (1980), 62 Ohio
St.2d 202, 205, 404 N.E.2d 747. The party asserting waiver
must prove the waiving party's clear, unequivocal, decisive
act. Automated Solutions Corp. v. Paragon Data Sys., Inc.,
167 Ohio App.3d 685, 856 N.E.2d 1008, 2006-Ohio-3492,
¶ 28.
"[W]aiver of a contract provision may be express or implied."
Lewis & Michael Moving & Storage, Inc. v. Stofcheck
Ambulance Serv., Inc., 10th Dist. No. 05AP[-]662, 2006-
Ohio-3810, ¶ 29, quoting Natl. City Bank v. Rini, 162 Ohio
App.3d 662, 834 N.E.2d 836, 2005-Ohio-4041, ¶ 24, citing
Griffith v. Linton (1998), 130 Ohio App.3d 746, 751, 721
N.E.2d 146. " '[W]aiver by estoppel' exists when the acts and
conduct of a party are inconsistent with an intent to claim a
right, and have been such as to mislead the other party to his
prejudice and thereby estop the party having the right from
insisting upon it." (Emphasis omitted.) Id., quoting Natl. City
Bank at ¶ 24, quoting Mark-It Place Foods at ¶ 57. "Waiver by
estoppel allows a party's inconsistent conduct, rather than a
party's intent, to establish a waiver of rights." Id., quoting
Natl. City Bank at ¶ 24.
Whether a party's inconsistent conduct amounts to waiver
involves a factual determination within the province of the
trier of fact. Id. at ¶ 30, 834 N.E.2d 836, citing Lamberjack v.
Priesman (Feb. 5, 1993), 6th Dist. No. 92-OT-006, fn. 5 and
Walker v. Holland (1997), 117 Ohio App.3d 775, 791, 691
N.E.2d 719. Review of a trial court's factual determinations
involves some degree of deference, and we will not disturb a
trial court's findings of fact where the record contains
competent, credible evidence to support such findings.
Wiltberger v. Davis (1996), 110 Ohio App.3d 46, 52, 673
N.E.2d 628.
Nos. 13AP-925 and 14AP-129 7
{¶ 20} In the present case, PHH argues that appellee neither "tendered" nor made
a "payment" of the mortgage, relying upon various passages from Jenkins v. Mapes, 53
Ohio St. 110 (1895). PHH contends there was no payment here, citing Jenkins, because
"[p]ayment is consummated by an acceptance of the thing tendered, and is incomplete
until then." Id. at 115. PHH also asserts, citing Jenkins, that there was no tender here
because, "there can be no tender of a thing unless the person to whom the tender is made
has, by himself or agent, knowledge of it." Id. at 117. Relying upon these provisions in
Jenkins, PHH claims that appellee could not simply show he sent a payment through
Speedpay, but he needed to show that PHH had knowledge of the payment. PHH
concludes that it did not have knowledge of a payment or accept or receive the payment
because Speedpay is owned and controlled by Western Union.
{¶ 21} At trial, PHH presented the testimony of one witness, Ron Casperite,
complex liaison for PHH, who testified that Speedpay is maintained by Western Union.
However, he admitted he was not familiar how a PHH customer accesses the Speedpay
website to make a mortgage payment.
{¶ 22} Appellee testified at the hearing that he had always paid his mortgage
online. He described the payment process, as it related to the website of PHH's
predecessor, Coldwell Banker:
You log into their [Coldwell Banker's] website and you --
there's a pay now button, and you basically click on that, you
put in the money that you're going to pay, plus additional
principal, and it redirected you to another site seamlessly and
just processed your payment, and at the end it gave you a
confirmation number.
(Tr. 26.)
{¶ 23} Appellee then answered questions about the circumstances surrounding his
attempted payment of the mortgage on August 3, 2009:
Q. All right. Andrew, you just testified you're current through
July of 2009. What happened starting with your payment
toward the mortgage and note in August 2009?
A. I tried to make the payment online like I normally would
and the website was erroring out and wouldn't let you submit
your payment. So I waited -- it's actually -- it happened before
Nos. 13AP-925 and 14AP-129 8
in the past, and normally it would just, you know, if you try
the next day or so, or three days it would work. So that's
exactly what I did.
(Tr. 27.)
{¶ 24} Appellee said he "waited a few days like I normally did, because, like I said,
this was a routine occurrence, it just happens, so I waited three days and I tried again, and
I received the same message." (Tr. 28.) He received this second error message on
August 6, 2009. Appellee testified that he again tried to pay his mortgage through the
website of PHH's predecessor, Coldwell Banker, on August 10, 2009, but he received
another error message.
{¶ 25} Appellee testified that he then called the help line for Coldwell Banker to
discuss the issue:
Q. And what was discussed?
A. Well, basically, I, you know, hey, I can't make the
payments, you know, can I make this payment or whatever?
And they told me that the payments would go through, you
know, that there was, you know, a system problem that they
were having.
Q. Okay. And were you told to do anything else or not to worry
about it at that time, or what?
A. Yeah. Well, I was told to try to go -- try to make another
payment.
Q. Okay. And did you?
A. Yeah, I did actually try to make another payment, yeah.
(Tr. 30-31.)
{¶ 26} Appellee further testified that, on August 16, 2009, he received a
notification from Coldwell Banker that the August 2009 payment was late. In response to
the late notification, he again called the help line for Coldwell Banker. A customer service
representative told him that his payment would be processed and gave him a
Nos. 13AP-925 and 14AP-129 9
confirmation number. As of that time, appellee believed he had made his August 2009
mortgage payment.
{¶ 27} Appellee testified that, on September 3, 2009, he went on the Coldwell
Banker website to make his September 2009 payment but received another error
message. At that time, he realized that his August 2009 payment had never been credited.
Appellee called the help line for Coldwell Banker to ask about the uncredited August 2009
payment and his credit score being affected, but the customer service representative told
him there was nothing she could do about it and hung up the phone.
{¶ 28} Appellee testified that he then went to a physical location for Coldwell
Banker, but employees there told him that they do not process payments or deal with
these types of issues at that location.
{¶ 29} Appellee then testified that, on September 10, 2009, he mailed a check to
Coldwell Banker for nearly four times the mortgage amounts for August and September
2009, along with a letter explaining the situation. These payments were not processed
and not returned.
{¶ 30} Appellee testified that, on October 5, 2009, he sent another letter and check
for nearly four times the amount of mortgage payments due for October and November
2009 to the Coldwell Banker address listed for mailing mortgage payments, but the check
was never cashed or returned. Appellee testified that, at all relevant times, he had
sufficient funds in his bank account to cover his mortgage payments, his attempted online
payments, and the checks he wrote.
{¶ 31} Appellee also related a story during his testimony about how he contacted
his former realtor, who had originally worked for Coldwell Banker and who had helped
him with a similar issue a few months after the mortgage commenced. His former realtor
again connected him with the same contact person at Coldwell Banker who had resolved
his prior problem, but the person, "Sherrie," never called him back after she said she
would look into the matter.
{¶ 32} Initially, the testimony of PHH's sole witness, Casperite, was brief and
minimally helpful to the pertinent matters. The main issue revolved around appellee's
attempted use of Speedpay online, a subject about which Casperite admitted he knew
little. What Casperite did know about Speedpay was that it was owned by Western Union,
Nos. 13AP-925 and 14AP-129 10
which PHH attempts to use as support for its argument that appellee never actually
"tendered" or made "payment" to PHH itself. However, this argument misses the point.
{¶ 33} PHH fails to directly address the basis relied upon by the trial court to find
that no default occurred here; that is, that PHH waived any claim that appellee did not
have the contractual right to make his payments electronically by accepting electronic
payments from appellee for six years without objection, and PHH waived strict
performance of the due date term by accepting appellee's payments after the due date on
many prior occasions. Initially, a promissory note is a contract, and rules of contract
interpretation apply to the interpretation of promissory notes. Cranberry Fin., L.L.C. v. S
& V Partnership, 186 Ohio App.3d 275, 2010-Ohio-464, ¶ 9 (6th Dist.), citing Commercial
Credit Co. v. Bishop, 34 Ohio App. 217, 225 (1st Dist.1927), citing Holzworth v. Koch,
Mayer & Goldsmith, 26 Ohio St. 33 (1875). It is well-established that every contract has
an implied covenant of good faith and fair dealing that requires not only honesty but also
reasonableness in the enforcement of the contract. Littlejohn v. Parrish, 163 Ohio App.3d
456, 2005-Ohio-4850, ¶ 21 (1st Dist.). " 'Good faith performance or enforcement of a
contract emphasizes faithfulness to an agreed common purpose and consistency with the
justified expectations of the other party.' " Id. at ¶ 26, quoting Restatement of the Law 2d,
Contracts, Section 205, Comment a (1981). Bad faith may consist of inaction, or may be
the " 'abuse of a power to specify terms, [or] interference with or failure to cooperate in
the other party's performance.' " Id., quoting Restatement of the Law 2d, Contracts,
Section 205, Comment d (1981). " 'Good faith' is a compact reference to an implied
undertaking not to take opportunistic advantage in a way that could have not been
contemplated at the time of drafting, and which therefore was not resolved explicitly by
the parties." Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 443-44 (1996),
quoting Kham & Nate's Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1357
(7th Cir.1990). Relatedly, "[w]here the obligations arising under a contract have attached,
and subsequent thereto one party without the consent of the other does some act or
makes some new arrangement which prevents the carrying out of the contract according
to its terms, he cannot avail himself of this conduct to avoid his liability to the other
party." Suter v. Farmers' Fertilizer Co., 100 Ohio St. 403 (1919), paragraph four of the
syllabus.
Nos. 13AP-925 and 14AP-129 11
{¶ 34} In the present case, PHH was not reasonable in its enforcement of the
promissory note. Despite PHH's attempt to portray the Speedpay website as an unrelated
entity for which it could bear no responsibility, PHH, through its predecessor, explicitly
agreed to permit its mortgage customers to pay their mortgages using the service. By
permitting and, in fact, encouraging, its customers to pay their mortgages online by
providing a Speedpay link on the predecessor's own website, PHH gave its customers a
justified expectation that the Speedpay system would work properly. Here, it obviously
did not work as intended and expected, and PHH, through its predecessor, explicitly
assured appellee that his payment would be credited through the Speedpay system. PHH's
actions here demonstrate a genuine failure to cooperate with appellee to make sure his
mortgage payment would be properly credited. It is difficult to imagine anything more
that appellee could have done, given the circumstances and past dealings between the
parties as to how payments were handled and credited.
{¶ 35} Furthermore, although it is beyond dispute that the actual promissory note
did not contain an explicit provision for payments via the internet, it did indicate that the
borrower could make a payment "at a different place if required by the Note Holder."
Likewise, although it could be disputed whether an online payment via Speedpay
technically met the requirement of Section 1 of the note that payment be made in "cash,
check or money order," for PHH to rely upon this provision, while at the same time
encouraging borrowers to pay their mortgages through a link on their own website,
violates the covenant of good faith by taking "opportunistic advantage in a way that could
have not been contemplated at the time of drafting." Ed Schory & Sons, Inc., at 444. By
unilaterally offering Speedpay as a service to appellee, PHH offered appellee a new
arrangement to make payments that prevented appellee from explicitly carrying out the
terms of the contract in this instance, and PHH cannot now claim that appellee should
have never relied on Speedpay.
{¶ 36} On these bases, we agree with the trial court that PHH waived any argument
that appellee did not have the contractual right to make his payments electronically
because it accepted electronic payments from appellee for six years without objection.
Even if the contract did not explicitly permit electronic payments, PHH accepted
Nos. 13AP-925 and 14AP-129 12
Speedpay as a form of payment from appellee from the commencement of the loan and
never disputed that this was a valid form of payment.
{¶ 37} Furthermore, we agree that PHH waived strict performance of the due date
term because it accepted appellee's payments after the due date on many prior occasions.
Appellee testified that he had before received the same error when attempting an online
payment through Speedpay, but would, in the past, always be able to make the payment
when he tried a day or two later. There was no evidence that PHH ever objected to his
payments on these terms or considered appellee in default or sought foreclosure. Appellee
justifiably relied upon PHH's past actions to believe his past payments were not in default
or grounds for foreclosure. As the trial court explained, given PHH's past inactions and
the late-fee provision in the contract, appellee demonstrated that PHH contemplated that
late payments would still properly fulfill appellee's obligations under the contract.
{¶ 38} As for the anti-waiver provisions contained in the mortgage and note, PHH
does not contest the trial court's conclusions on this issue in its appellate brief.
Notwithstanding, we agree with the trial court that the anti-waiver provisions in the note
and mortgage were not operative here because appellee was not in default, and PHH
never accepted partial or insufficient payment, which were the respective requisites for
the application of the anti-waiver provisions in the note and mortgage. For all of the
foregoing reasons, we find the trial court did not err when it denied PHH judgment on its
note against appellee. Therefore, PHH's first assignment of error is overruled.
{¶ 39} PHH argues in its second assignment of error that the trial court erred when
it did not grant foreclosure of the mortgage. PHH's contentions under this assignment of
error rely upon the premise that appellee defaulted on the note. As we have found,
consistent with the trial court, that appellee did not default on the note, we must reject
PHH's argument that it had the right to foreclose on the property. Therefore, we overrule
PHH's second assignment of error.
{¶ 40} PHH argues in its third assignment of error that the trial court erred by not
addressing reformation of the mortgage. In its first decision on May 27, 2011, the trial
court found that, as the result of a scrivener's error and mutual mistake of fact between
the parties, the mortgage and deed in this action contained an incorrect legal description.
Nos. 13AP-925 and 14AP-129 13
Thus, the court ordered that the mortgage and deed be reformed to conform to an exhibit
attached to the decision.
{¶ 41} In the appeal in Ramsey I, appellee did not contest the trial court's
reformation of the mortgage and deed, and, thus, we did not address the issue in that
appeal. Nevertheless, in Ramsey I, we reversed the entire judgment of the trial court, in
essence, returning the parties to the original positions prior to the granting of summary
judgment. Our review of the record fails to demonstrate that PHH pursued its
reformation argument in the trial court after our remand in Ramsey I. PHH never raised
the issue of reformation in its post-trial closing argument brief or in its objections to the
magistrate's decision. Our review of the transcript does not reveal any testimony related
to reformation. Neither the magistrate nor the trial court addressed reformation in their
respective decisions. It is well-settled that a litigant's failure to raise issues for the trial
court's determination waives those issues for purposes of appeal. See State v. Johnson,
10th Dist. No. 13AP-637, 2014-Ohio-671, ¶ 14. Furthermore, PHH's failure to raise the
magistrate's failure to address the issue of reformation in its objections to the magistrate's
decision waives the issue on appeal. See Civ.R. 53(D)(3)(b)(iv) (except for a claim of plain
error, a party shall not assign as error on appeal the court's adoption of any factual finding
or legal conclusion, unless the party has objected to that finding or conclusion); State ex
rel. Muhammad v. State, 133 Ohio St.3d 508, 2012-Ohio-4767, ¶ 3 (appellant waived
claim on appeal by failing to specifically raise claim in his objections to the magistrate's
decision in the trial court). For these reasons, we must overrule PHH's third assignment
of error.
{¶ 42} Accordingly, PHH's first, second, and third assignments of error are
overruled, and the judgments of the Franklin County Court of Common Pleas are
affirmed.
Judgments affirmed.
SADLER, P.J., and TYACK, J., concur.
_____________________