Foster v. Benson
2019 Ohio 1528
Ohio Ct. App.2019Background
- Landlord Erol Foster sued tenants Angela Benson and Dwayne Thomas in Cleveland Municipal Court for unpaid rent and damages for a rental property; plaintiffs later added Foster EM Family Trust.
- Benson counterclaimed pro se for $8,000, alleging Foster removed, sold, or destroyed most of her belongings and locked tenants out on October 17, 2016, without a court eviction.
- Plaintiffs (Foster) failed to appear at the September 14, 2017 trial; the magistrate found Foster had violated R.C. 5321.15 and committed conversion, awarding defendants $8,000 plus costs.
- The trial court adopted the magistrate’s decision, dismissed plaintiffs’ claims (initially with prejudice, later modified to without prejudice), and dismissed counterclaims against the Trust with prejudice for lack of evidence.
- On appeal Foster raised due-process, recording, sufficiency/manifest-weight, clerical-error, and damages-itemization claims; the appellate court affirmed in large part, modified the judgment to award damages only to Benson (not Thomas), and remanded for a corrected journal entry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Notice of trial / due process | Foster: he, the Trust, and counsel did not receive notice of the Sept. 14 hearing; proceeding deprived him of due process | Court: notice was mailed; clerk’s docketing suffices; counsel is charged with monitoring docket | Court: presumes proper service; no abuse of discretion in proceeding without plaintiffs |
| Failure to record hearing | Foster: magistrate proceedings were not recorded, denying reviewability | Defendants/Court: local rules do not require recording; parties may hire a reporter | Court: no error — local rule allowed no recording; appellant bears consequence of no transcript |
| Sufficiency / manifest weight of evidence on conversion and damages | Foster: magistrate’s factual findings and damages were against the manifest weight / unsupported | Benson: she submitted a list of lost/destroyed items at trial; plaintiffs did not contest at trial | Court: without transcript or statement of proceedings, cannot review factual challenges; presumes regularity and affirms factual findings |
| Award to both defendants / identity of claimant | Foster: award incorrectly refers to defendants plural and may include Thomas for property he did not own | Benson: only she filed counterclaim and presented exhibit; Thomas did not file or present | Court: clerical error — modify judgment to award $8,000 to Benson only, omit Thomas; remand for corrected journal entry |
Key Cases Cited
- Pembaur v. Leis, 1 Ohio St.3d 89 (Ohio 1982) (trial court may dismiss for lack of prosecution when plaintiff fails to appear)
- Atkinson v. Grumman Ohio Corporation, 37 Ohio St.3d 80 (Ohio 1988) (notice is effective once clerk serves entry and notes docket; validity not affected by party’s claimed nonreceipt)
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (Ohio 1980) (when transcript portions are omitted, appellate court must presume regularity and affirm)
- Jacks v. Adamson, 56 Ohio St. (Ohio 1897) (nunc pro tunc limited to clerical omissions reflecting actions actually taken)
- Ruby v. Wolf, 39 Ohio App. (Ohio 1931) (nunc pro tunc cannot be used to alter an erroneous judgment; it records the truth of judicial action)