James v. My Cute Car, L.L.C.

[Cite as James v. My Cute Car, L.L.C., 2017-Ohio-1291.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
William James, :
Plaintiff-Appellant, :
No. 16AP-603
v. : (M.C. No. 2015CVF-7888)
My Cute Car, LLC, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on April 6, 2017
On brief: William James, pro se. Argued: William James.
On brief: Michael P. Onore, for appellee. Argued:
Michael P. Onore.
APPEAL from the Franklin County Municipal Court
DORRIAN, J.
{¶ 1} Plaintiff-appellant, William James, appeals the August 17, 2016 judgment of
the Franklin County Municipal Court overruling appellant's objections to the magistrate's
June 30, 2016 decision and granting judgment in favor of defendant-appellee, My Cute
Car, LLC. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On March 10, 2015, appellant filed a complaint alleging appellee committed
unfair or deceptive consumer sales practices as provided in R.C. 1345.021 arising out of
appellee's sale of a vehicle to appellant. On May 7, 2015, appellee filed its answer.
{¶ 3} On July 31, 2015, appellant filed a motion to admit documents into
evidence. On August 10, 2015, appellant filed a motion for summary judgment. On
1Although not relevant to the instant appeal, we note R.C. 1345.02 was amended effective April 6, 2017.
2015 Am.Sub.S.B. No. 227.
No. 16AP-603 2
August 26, 2015, appellee filed a memorandum contra appellant's motion for summary
judgment. On September 2, 2015, appellant filed a reply to appellee's memorandum
contra. On September 11, 2015, the trial court denied in part appellant's motion to admit
documents into evidence and denied appellant's motion for summary judgment.
{¶ 4} On December 7, 2015, appellant filed a second motion for summary
judgment. On December 11, 2015, appellee filed a motion to dismiss appellant's
complaint pursuant to Civ.R. 12(B)(6). On December 15, 2015, appellee filed a
memorandum in opposition to appellant's second motion for summary judgment. On
December 18, 2015, appellant filed a memorandum in opposition to appellee's motion to
dismiss.
{¶ 5} On January 25, 2016, appellant filed a motion for leave to amend the
complaint. On February 5, 2016, appellee filed a memorandum in opposition to
appellant's motion for leave to amend the complaint. On February 12, 2016, the trial
court filed a decision and entry that denied appellant's second motion for summary
judgment, appellee's motion to dismiss, and appellant's motion for leave to amend the
complaint.
{¶ 6} On March 3, 2016, the trial court referred the matter to a magistrate,
pursuant to Civ.R. 53, to conduct a trial. On June 30, 2016, the magistrate filed a decision
recommending judgment in favor of appellee. Specifically, the magistrate found that
appellant failed to establish that appellee committed an unfair or deceptive act.
Additionally, the magistrate found that appellant failed to introduce evidence of any
damages claimed.
{¶ 7} On July 11, 2016, appellant filed objections to the magistrate's decision. On
July 21, 2016, appellee filed a reply to appellant's objections. On August 17, 2016, the trial
court filed a judgment entry overruling appellant's objections, adopting the findings of the
magistrate, and entering judgment in favor of appellee.
II. Assignments of Error
{¶ 8} Appellant appeals and assigns the following five assignments of error for
our review:
[I.] The trial court erred when it when it [sic] based its
decision on facts not in evidence.
No. 16AP-603 3
[II.] The trial court erred in favor of the defendant when it
allowed the defendant to skip the filing of a pre-trial
statement to go [sic] without penalties.
[III.] The trial court erred when it denied the plaintiff's one
and only motion to amend the complaint to include
violations of [R.C.] 4549.45 without explanation.
[IV.] The trial court erred when it concluded that the
Certified Business Records sent to the court from Craigslist
were not credible as evidence.
[V.] The trial court erred when it refused to recognize
defendant's violations of Ohio CSPA ([R.C.] 1345.02) and
other obvious violations of Ohio law ([R.C.] 4549.45) as
unfair business practices.
For ease of discussion, we address appellant's assignments of error out of order.
III. Discussion
A. Third Assignment of Error
{¶ 9} In his third assignment of error, appellant asserts the trial court erred by
denying his motion to amend the complaint "without explanation." (Appellant's Brief at
2.) We begin by noting that appellant fails to provide separate arguments in his appellate
brief in support of this assignment of error. Instead, appellant's brief contains a single
section entitled "arguments" without differentiating between individual assignments of
error.
{¶ 10} "The burden of affirmatively demonstrating error on appeal rests with the
party asserting error." Lundeen v. State Med. Bd. of Ohio, 10th Dist. No. 12AP-629, 2013-
Ohio-112, ¶ 16, citing State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943,
¶ 51 (10th Dist.), citing App.R. 9 and 16(A)(7). Pursuant to App.R. 12(A)(2), an appellate
court may " 'disregard an assignment of error presented for review if the party raising it
fails to identify in the record the error on which the assignment of error is based or fails to
argue the assignment separately in the brief, as required under App.R. 16(A).' " Morgan
v. Ohio State Univ. College of Dentistry, 10th Dist. No. 13AP-287, 2014-Ohio-1846, ¶ 64,
quoting Lundeen at ¶ 16. " 'It is the duty of the appellant, not the appellate court, to
construct the legal arguments necessary to support the appellant's assignments of error.' "
Cook v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 14AP-852, 2015-Ohio-4966,
No. 16AP-603 4
¶ 40, quoting Bond v. Canal Winchester, 10th Dist. No. 07AP-556, 2008-Ohio-945, ¶ 16.
See also Young v. Locke, 10th Dist. No. 13AP-608, 2014-Ohio-2500, ¶ 16 ("App.R.
16(A)(7) requires that an appellate brief contain an argument in support of each
assignment of error presented for review with citations to the authorities, statutes, and
parts of the record on which appellant relies."). "It is not the duty of this court to search
the record for evidence to support an appellant's argument as to alleged error." Petro at
¶ 94.
{¶ 11} Here, insofar as we are able to discern which of appellant's assignments of
error are supported by arguments with citations to pertinent authorities and parts of the
record, we shall, in the interest of justice and judicial economy, address such assignments
of error. However, with regard to his third assignment of error, appellant's brief does not
contain any arguments with citations to the authorities, statutes, or relevant portions of
the record. Therefore, pursuant to App.R. 12(A)(2), we disregard appellant's third
assignment of error. See Cook at ¶ 40; Bond at ¶ 16-17. Accordingly, we overrule
appellant's third assignment of error.2
B. First, Fourth, and Fifth Assignments of Error
{¶ 12} As previously noted, appellant, in his appellate brief, failed to provide
separate arguments in support of each of his assignments of error. We address
appellant's first, fourth, and fifth assignments of error together as appellant essentially
challenges the trial court's ultimate conclusion that he failed to prove his claim by a
preponderance of the evidence.
2Although we decline to address the merits of assignment of error three, we note that contrary to appellant's
assertion, the trial court provided an explanation for its denial of appellant's motion for leave to amend his
complaint:
In this case, the Court finds that allowing [appellant] to amend his
complaint, at this stage in the proceedings, would cause undue delay and
prejudice to [appellee]. If the Court were to allow [appellant] to amend his
complaint, a continuance of the trial scheduled for March 3, 2016, would
likely be necessary to allow [appellee] to file an answer and any pretrial
motions. Further, * * * the motion to amend in this case was filed after
[appellant's] motion for summary judgment was denied and nearly ten
months after [appellant] filed his complaint; the parties have already
engaged in discovery; and the trial date was just over a month away when
the motion was filed. For these reasons, [appellant's] motion for leave to
amend his complaint is denied.
(Feb. 12, 2016 Decision and Entry at 3.)
No. 16AP-603 5
{¶ 13} In ruling on objections to a magistrate's decision, the trial court must
undertake an independent review of the matters objected to in order "to ascertain
[whether] the magistrate has properly determined the factual issues and appropriately
applied the law." Civ.R. 53(D)(4)(d). Thus, in accordance with Civ.R. 53, a trial court
reviews a magistrate's decision de novo. Barksdale v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 16AP-297, 2017-Ohio-395, ¶ 11, citing Mayle v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 09AP-541, 2010-Ohio-2774, ¶ 15, citing State Farm Mut. Auto. Ins. Co. v.
Fox, 182 Ohio App.3d 17, 2009-Ohio-1965, ¶ 10 (2d Dist.).
{¶ 14} Civ.R. 53(D)(3)(b)(i) provides that "[a] party may file written objections to a
magistrate's decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i)." If a party objects to a factual finding, whether or not it is specifically
designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), the objection "shall be
supported by a transcript of all the evidence submitted to the magistrate relevant to that
finding or an affidavit of that evidence if a transcript is not available. With leave of court,
alternative technology or manner of reviewing the relevant evidence may be considered."
Civ.R. 53(D)(3)(b)(iii). "[A]lternative technology in the form of the recording satisfies the
transcript requirement set forth in Civ.R. 53(D)." Marok v. Ohio State Univ., 10th Dist.
No. 11AP-744, 2012-Ohio-2593, ¶ 11. The trial court possesses discretion in whether to
permit the use of alternative methods of reviewing the relevant evidence. Pallone v.
Pallone, 10th Dist. No. 15AP-779, 2016-Ohio-7066, ¶ 14 ("Civ.R. 53(D)(3)(b)(iii), by
stating that '[w]ith leave of court' alternatives 'may be considered,' affords the trial court
discretion in whether to permit the use of alternative methods.").
{¶ 15} "The absence of a transcript or affidavit of evidence restricts the scope of
review at both the trial court and appellate levels." Cargile v. Ohio Dept. of Admin. Servs.,
10th Dist. No. 11AP-743, 2012-Ohio-2470, ¶ 10. "In the absence of both a transcript and
an affidavit, the trial court must accept the magistrate's findings of fact and may only
examine the legal conclusions drawn from those facts." Ramsey v. Ramsey, 10th Dist.
No. 13AP-840, 2014-Ohio-1921, ¶ 16-18, citing Ross v. Cockburn, 10th Dist. No. 07AP-
967, 2008-Ohio-3522, ¶ 5. "[W]here there is no transcript submitted on appeal, '[t]here is
a presumption that the trial court proceedings were validly conducted. Absent a complete
No. 16AP-603 6
transcript or an acceptable alternative (such as is described in App.R. 9(C)), we must
presume that the trial court's decision is correct.' " Barksdale at ¶ 17, quoting Jenkins v.
State Farm Mut. Auto. Ins. Co., 10th Dist. No. 11AP-1074, 2013-Ohio-1142, ¶ 30.
"Furthermore, where an appellant fails to provide the court with a transcript of the trial
court proceedings, despite the fact that he contends that certain of the trial court's finding
of fact were improper, a court has nothing to review without a transcript and must
presume that the findings of fact are correct and supported by the evidence." Id. at ¶ 17,
citing Am. Fam. Ins. Co. v. Hoop, 4th Dist. No. 13CA983, 2014-Ohio-3773, ¶ 36-37.
{¶ 16} Before considering the merits of appellant's assignments of error, we must
address appellant's failure to file a transcript on appeal. Pursuant to Civ.R. 53, this matter
was referred to a magistrate, who conducted a trial on March 3, 2016. Appellant then
filed objections to the magistrate's decision, but failed to support his objections with a
transcript of the proceedings before the magistrate. On review of appellant's objections,
the trial court considered alternative technology in the form of audio and video recordings
of the proceedings before the magistrate. Consideration of such alternative technology is
not permitted, however, before an appellate court. Id. at ¶ 15.
{¶ 17} App.R. 9(B) provides in pertinent part:
(1) Except as provided in App.R. 11.2(B)(3)(b), it is the
obligation of the appellant to ensure that the proceedings the
appellant considers necessary for inclusion in the record,
however those proceedings were recorded, are transcribed in
a form that meets the specifications of App.R. 9(B)(6).
***
(3) The appellant shall order the transcript in writing and
shall file a copy of the transcript order with the clerk of the
trial court.
(4) If no recording was made, or when a recording was made
but is no longer available for transcription, App.R. 9(C) or
9(D) may be utilized. If the appellant intends to present an
assignment of error on appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the weight of
the evidence, the appellant shall include in the record a
transcript of proceedings that includes all evidence relevant to
the findings or conclusion.
No. 16AP-603 7
***
(6)(d) The transcript of proceedings shall be prepared on
white paper eight and one-half inches by eleven inches in size
with the lines of each page numbered and the pages
sequentially numbered[.]
The Staff Notes to App.R. 9 addressing amendments made in 2011 observe:
The amendments to App.R. 9 are designed to strike a balance
between the trial court's autonomy in determining how to
record proceedings in the trial court and the appellate court's
preference for official transcripts in lieu of video recordings
transcribed by counsel or counsel's assistants. Under App.R.
9(A), trial courts may choose to record proceedings through
the use of a stenographic/shorthand reporter, an audio-
recording device, and/or a video-recording device, except in
capital cases, in which a stenographic/shorthand reporter is
required. Regardless of the method of recording the
proceedings, a transcript is required for the record on appeal;
a videotaped recording of the trial court proceedings is no
longer adequate. For parties who cannot afford to have a
transcript prepared, existing case law already authorizes the
use of a statement of proceedings under App.R. 9(C).
{¶ 18} App.R. 9(C) provides in pertinent part as follows:
(1) If no recording of the proceedings was made, if a transcript
is unavailable, or if a recording was made but is no longer
available for transcription, the appellant may prepare a
statement of the evidence or proceedings from the best
available means, including the appellant's recollection.
(2) In cases initially heard in the trial court by a magistrate, a
party may use a statement under this division in lieu of a
transcript if the error assigned on appeal relates solely to a
legal conclusion. If any part of the error assigned on appeal
relates to a factual finding, the record on appeal shall include
a transcript or affidavit previously filed with the trial court as
set forth in Civ.R. 53(D)(3)(b)(iii), Juv.R. 40(D)(3)(b)(iii), and
Crim.R. 19(D)(3)(b)(iii).
The Staff Notes to App.R. 9 addressing amendments made in 2013 observe:
App.R. 9 is amended to clarify that a statement of the
evidence or proceedings in lieu of an unavailable transcript
(under App.R. 9(C)) or an agreed statement of the case (under
App.R. 9(D)) is available only in limited circumstances in
No. 16AP-603 8
cases originally heard by a magistrate. One of the predicates
for appealing from a factual finding in cases initially heard by
a magistrate is that the trial judge must have had an adequate
opportunity to conduct a full review of the factual finding.
That full review is not possible unless the appellant provided
the trial court with an adequate description of the evidence
presented to the magistrate - either through a transcript or, if
a transcript is unavailable, an affidavit describing that
evidence. * * * Case law already provides that an appellate
court will not review factual findings on appeal unless the
appellant provided the trial court with that description of the
evidence and that a statement under App.R. 9(C) or App.R.
9(D) does not overcome this problem.
Thus, generally, App.R. (9)(C) permits filing of a statement of the evidence in lieu of a
transcript when: (1) no recording was made, (2) the transcript of the proceedings is
unavailable, or (3) if a recording was made but is no longer available for transcription. In
proceedings originally heard before a magistrate, however, App.R. 9(C) permits the filing
of a statement of the evidence in lieu of a transcript when the error assigned on appeal
relates solely to a legal conclusion.
{¶ 19} Here, appellant has failed to file a transcript of the proceedings before the
magistrate; appellant has also not filed a statement of the evidence pursuant to App.R.
9(C). Furthermore, the record before us does not contain the recordings considered by
the trial court in reviewing appellant's objections to the magistrate's decision. With
regard to his failure to file a transcript, appellant states that he "does not consider
inclusion of the transcript to be a necessity because the hard copy documents on the
record are sufficient proof of defendant's deception." (Appellant's Reply Brief at 5.)
Appellant is mistaken. Appellant's contention is inextricably linked with the trial court's
consideration of the testimony before the magistrate in addition to any other evidence
submitted to the court. This is evident in the trial court's consideration of recordings of
the proceedings before the magistrate. Furthermore, in its decision, the trial court stated
that "[t]he magistrate's findings were supported by the evidence and testimony." (Jgmt.
Entry at 2.) Thus, without a transcript, we must presume that the trial court's findings are
correct. Barksdale at ¶ 17. Accordingly, we overrule appellant's first, fourth, and fifth
assignments of error.
No. 16AP-603 9
C. Second Assignment of Error
{¶ 20} In his second assignment of error, appellant asserts the trial court erred by
not imposing penalties on appellee for failing to file a pre-trial statement. In support of
his assertion, appellant points to Franklin County Municipal Court Loc.R. 6.01 which
provides in pertinent part as follows:
It shall be the duty of counsel to do the following at the
pretrial hearing and failure to be prepared may result in
dismissal of the case for want of prosecution or in a default
judgment or such other action to enforce compliance as the
trial judge deems appropriate.
***
3. Each counsel shall present to the court in writing a
statement of the issues involved, of the matters stipulated and
of all questions of law which it is expected will be involved in
the case.
***
The written statement shall be filed at or before the pretrial
hearing.
{¶ 21} A trial court may adopt rules concerning pretrial procedure that vest the
trial court with the discretionary power to impose sanctions on parties who violate those
rules. Telecom, Ltd. v. Wisehart & Wisehart, Inc., 10th Dist. No. 11AP-1147, 2012-Ohio-
4376, ¶ 13, citing Pang v. Minch, 53 Ohio St.3d 186, 193-94 (1990). Here, Municipal
Court Loc.R. 6.01 states that the failure of a party to properly prepare for the pretrial
hearing "may" result in specified penalties "as the trial judge deems appropriate." Thus,
by the plain language of the rule, the trial court is vested with discretion on whether to
penalize a party for its failure to prepare for the pretrial hearing. Therefore, as
enforcement under Municipal Court Loc.R. 6.01 is left to the sound discretion of the trial
court, we will not reverse the trial court's determination absent an abuse of discretion.
"The term 'abuse of discretion' connotes more than an error of law or judgment; it implies
that the court's attitude is unreasonable, arbitrary or unconscionable." (Citations
omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
No. 16AP-603 10
{¶ 22} In his appellate brief, appellant states that "the court shows bias by allowing
[appellee], who was represented by counsel, to skip the filing of the pretrial statement."
(Appellant's Brief at 19.) Appellant fails to provide citation to any authorities or portions
of the record to support this contention. Therefore, we find that appellant has failed to
demonstrate that the trial court abused its discretion with regard to appellee's preparation
for the pretrial hearing. Furthermore, appellant fails to demonstrate prejudice arising
from the trial court's decision and, therefore, any error is harmless. Accordingly, we
overrule appellant's second assignment of error.
IV. Conclusion
{¶ 23} Having overruled appellant's five assignments of error, we affirm the
judgment of the Franklin County Municipal Court.
Judgment affirmed.
SADLER and HORTON, JJ., concur.