Brown v. GabramBrown v. Gabram
DONALD R. FORD, P.J.
{¶1} Appellant, Mark Brown, appeals from the November 5, 2004 judgment entry of the Chardon Municipal Court, which adopted the magistrate‘s decision and granted judgment in favor of appellee, Curt Gabram.
{¶2} On June 1, 2004, appellant filed a complaint in the Small Claims Division of the Chardon Municipal Court against appellee, asserting breach of contract. On the trial date of July 20, 2004, Magistrate Steven E. Patton discovered that he had a conflict
{¶3} The trial record, which does not include a transcript of the proceedings, but consists solely of the transcript of the docket, the magistrate‘s decision, the exhibits admitted into evidence, and the objections filed by appellant, revealed that at some undated time, appellant and appellee entered into an oral contract pursuant to which appellant agreed to perform excavation work for appellee‘s new garage and breezeway. Appellant claimed that the agreed price was between $3,500 and $4,000, which appellee paid. Appellant further alleged that the parties agreed upon additional work in the amount of $1,100, which was performed but for which he never received payment. Appellee claimed that the original agreement was for $4,400, and that he paid the entire amount. He further claimed that the cost for the additional work was $360, which he also paid, although the work was not completed.
{¶4} On September 24, 2004, Magistrate Fuhry filed his findings and recommendations, finding in favor of appellee. On October 14, 2004, appellant filed his objections to the findings and recommendations, without a transcript of the proceeding or an affidavit of evidence. On November 5, 2004, the trial court adopted the magistrate‘s findings and recommendations in their entirety. It is from that judgment
{¶5} “[1.] The magistrate abused his discretion by denying [appellant] the opportunity to present certain evidence.
{¶6} “[2.] The magistrate abused his discretion by failing to fairly decide [the case] based on the preponderance of the evidence.
{¶7} “[3.] The magistrate abused his discretion by not videotaping the hearing or otherwise providing for a record of some kind.
{¶8} “[4.] The magistrate abused his discretion during previous hearings of other cases [appellant] has filed. *** .”
{¶9} For the sake of efficiency, this court will address appellant‘s first and second assignments of error in reverse order.
{¶10} In appellant‘s second assignment of error, he argues that appellee‘s evidence was not credible and did not support a finding against appellant by a preponderance of the evidence.2
{¶11} On appeal, a trial court‘s adoption of a magistrate‘s decision will not be overruled unless the trial court abused its discretion in adopting the decision. Lovas v. Mullett (July 29, 2001), 11th Dist. No. 2000-G-2289, 2001 Ohio App. LEXIS 2951, at 4-5. An abuse of discretion is more than an error of judgment or law; it implies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶13} “***‘[M]anifest weight’ requires a review of the weight of the evidence presented ***.
{¶14} “‘In determining whether the verdict was against the manifest weight of the evidence, “(***) the court reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. (***)“’ (Citations omitted.) ***” (Emphasis sic.)
{¶15} In determining whether or not the trial court abused its discretion in adopting the magistrate‘s decision, we would need to review and weigh the testimony introduced at trial and consider the credibility of the witnesses. However, although appellant filed timely objections to the magistrate‘s decision, he failed to file with the objections a transcript of the trial or an affidavit, as required by
{¶16} We visited this issue in Calhoun-Brannon v. Brannon, 11th Dist. No. 2003-T-0019, 2003-Ohio-7216, at ¶9:
{¶17} ”
{¶18} The result of this preclusion is the waiver of “any claim that the trial court erred in adopting the magistrate‘s findings,” and the appellate court is limited to “a determination of whether the trial court erred in finding that there was no error of law or other defect on the face of the *** magistrate‘s decision.
{¶19} Our review of Magistrate Fuhry‘s decision does not reveal any error of law or other defect. The magistrate found that appellant “paid $4760.00, not the $3500.00 he remembers *** [and that he] *** didn‘t fully perform.” The magistrate concluded, as to the credibility of the evidence, that “[appellee‘s] testimony was clear, consistent and delivered with conviction. *** [Appellee] and his witness were convincing.” As the trier of fact, Magistrate Fuhry was in the best position to hear and observe the witnesses, and to measure their credibility. In that capacity, he “had the right to either believe or disbelieve the testimony that was given.” Lovas, supra, at 6. Noting that “[h]ad the parties reduced the agreement to writing it would have been a simple matter to determine what the price was[,]” the magistrate found in favor of appellee, making his determination “solely from the basis of testimony.”
{¶20} Since we must accept the magistrate‘s factual findings, we conclude that the trial court did not err in adopting the magistrate‘s decision holding that appellee did
{¶21} In appellant‘s first assignment of error, he claims that the magistrate improperly denied him the opportunity to present evidence relating to appellee‘s credibility. In appellant‘s brief, he argues that he should have been permitted to present “a summary, his cell phone records, and a police report [that appellant] filed after being threatened by Mr. Gabram ***.”
{¶22} A review of appellant‘s objections to the magistrate‘s decision shows that the only evidentiary ruling he brought to the trial court‘s attention was the magistrate‘s failure to consider his cell phone bill to discredit appellee‘s wife‘s testimony that she and appellant had made repeated phone calls to appellant regarding getting him to complete the contracted work. Issues not presented to the trial court may not be raised for the first time on appeal. Lovas, supra, at 8. See, also, Nozik v. Kanaga (Dec. 1, 2000), 11th Dist. No. 99-L-193, 2000 Ohio App. LEXIS 5615, at 6-7. Accordingly, we will consider only the issue of the admissibility of appellant‘s cell phone records.
{¶23} A trial court has broad discretion in the admission or exclusion of evidence. Consol. Invest. Corp. v. Oak Real Estate, Ltd., 11th Dist. No. 2003-L-017, 2004-Ohio-1435, at ¶13. Therefore, evidentiary rulings will not be overturned absent an abuse of discretion. State v. Long (1978), 53 Ohio St.2d 91, 98.
{¶24} A review of the record shows that the admitted exhibits do not include any cell phone records, nor does the magistrate‘s decision refer to any such records. Without a trial transcript or an acceptable alternative, this court is unable to determine how appellant sought to admit the records, what form such records took, or on what
{¶25} Therefore, we conclude that the magistrate properly excluded the phone records, and the trial court did not abuse its discretion in upholding the magistrate‘s decision in doing so. Thus, appellant‘s second assignment of error is overruled.
{¶26} In appellant‘s third assignment of error, he claims that the magistrate was required to videotape the trial, or otherwise record it in some manner.
{¶27} In All Occasion Limousine v. HMP Events, 11th Dist. No. 2003-L-140, 2004-Ohio-5116, this court recently examined the issue of whether
{¶28} In All Occasion, we reviewed the provisions of
{¶29} ”
{¶31} Therefore, in All Occasion, we held that
{¶32} In the case at hand, although the hearing was not recorded, appellant had an alternative.
{¶33} Appellant argues in his fourth assignment of error that the magistrate abused his discretion in past cases that appellant has filed, which ongoing abuse has established a pattern of denial of his due process rights over a course of years.
{¶34}
{¶35} Moreover, appellant has not argued that his due process rights were violated in the current case. Therefore, appellant‘s fourth assignment of error is meritless.
{¶36} For the foregoing reasons, appellant‘s assignments of error are not well-taken, and the judgment of the Chardon Municipal Court is affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.
concur.