Lead Opinion
{¶ 3} On June 8, 2004, Appellants filed a complaint naming Accutech and Hurst as defendants stemming from problems that ensued from the home renovation. On June 9, 2004, Appellants filed an amended complaint. On August 30, 2004, Hurst filed a counterclaim against Appellants for breach of contract. Prior to trial, Appellants and Accutech reached an agreement, and Accutech was dismissed from the action with prejudice.
{¶ 4} On October 3, 2006, the jury trial began. After opening statement, Hurst moved for "a directed verdict in favor of the Defendant as it relates to the cause of action for the Ohio Consumer Sales Practice Act." The trial court denied the motion. On the third day of trial, after Appellants rested, Hurst again moved for a directed verdict on the Consumer Sales Practices Act ("CSPA") causes of action. The trial judge granted the motion the same day. On October 10, 2006, the jury returned a verdict "in favor of Defendant, Hurst Construction, and against Plaintiffs on the counterclaim for breach of contract and award compensatory damages in the amount of $1120.00." Appellants timely appeal, setting forth four assignments of error for review.
"THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS WHEN IT DISMISSED PLAINTIFFS' CAUSES OF ACTION UNDER THE CONSUMER SALES PRACTICES ACT."
{¶ 5} Appellants argue that the trial court erred in granting Hurst's motion for a directed verdict as to their claims under R.C. Chapter
{¶ 6} "An appellate court reviews a trial court's ruling on a motion for a directed verdict de novo, as it presents an appellate court with a question of law." Jarvis v. Stone, 9th Dist. No. 23904,
{¶ 7} The standard for granting a directed verdict is well established, and is found in Civ. R. 50(A)(4) which provides:
"When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."
Furthermore, when deciding such a motion, the trial court is not to consider either the weight of the evidence or credibility of witnesses.Strother v. Hutchinson (1981),
{¶ 8} "The general provisions of the [CSPA] prohibit unfair, deceptive, or unconscionable acts or practices in consumer transactions. R.C.
{¶ 9} However, while "the case law generally focuses on `deceptive' acts, presumably because the fact patterns involve some sort of false or misleading representations[,] * * * R.C.
{¶ 10} In the case before this Court, Appellants argued that Hurst committed deceptive, unfair and unconscionable acts in violation of the CSPA by performing substandard work; by unreasonably delaying performance; and by including contractual provisions that were substantially one-sided in favor of Hurst.
{¶ 11} However, the trial court only addressed whether deceptive acts had taken place. In ruling, the trial court provided:
"This court has not heard any evidence presented to a deceptive or unfair act. This Court — the Defendant may have made some mistakes during the construction phase is as to be guilty of possibly breach of contract, and that remains to be a jury question. This does not necessarily mean that because there is a breach, there was a deceptive act. Court has searched its notes and can find no deceptive practices or any untruths. * * * Based upon this [sic] observations and the evidence that was presented, this Court will deny — will grant the motion for directed verdict as far as the Consumer Sales Practices Act is concerned only."
While the trial court mentioned the word "unfair", it only analyzed whether there was any evidence of deception or deceptive actions on the part of Hurst. In addition, the trial court failed *5 altogether to consider whether the Dennies and McClincey presented evidence of unconscionable practices on the part of Hurst. In doing so, the trial court not only dismissed the claims based on Hurst's alleged deception, but also the claims based on its actions that were alleged to be "unfair" and "unconscionable." Essentially, the trial court dismissed all of the CSPA causes of action, but only analyzed one of the ways Appellants argued the statute had been violated.
{¶ 12} Furthermore, it has been upheld on appeal that it was a violation of "R.C.
{¶ 13} Having failed to address the "unfair" and "unconscionable" claims of Appellants, the trial court did not determine whether "reasonable minds could come to but one conclusion upon the evidence submitted" that Hurst was entitled to a directed verdict on those causes of action. Accordingly, Appellants' first assignment of error is sustained, and their claims involving the violation of the CSPA are reversed and remanded.
"THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS WHEN IT FAILED TO RENDER JUDGMENT IN FAVOR OF PLAINTIFFS ON PARAGRAPHS 31 AND 32 OF THE COMPLAINT."*6
{¶ 14} Appellants argue that the court erred in failing to find paragraphs 7 and 13 of their contract with Hurst to be unfair trade practices under the CSPA. However, we decline to address the merits of this assignment of error. As this Court's ruling on Appellants' first assignment of error is dispositive as to all of the Appellants' claims under the CSPA, this argument falls under that ruling and is rendered moot.
"THE TRIAL JUDGE ERRED IN ENGAGING IN AN OBVIOUS IMPROPRIETY, IN UNDERMINING CONFIDENCE IN THE COURT, AND IN FAILING TO RECUSE HIMSELF ALL TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS."
{¶ 15} Appellants argue that the trial judge erred in failing to recuse himself after he engaged in a colloquy during trial with an owner of the defendant company. During the colloquy, counsel for appellants overheard the judge and Mr. Hurst speaking about a potential contractual relationship at the summation of the trial, and overheard the judge tell Mr. Hurst that he would call him after the case was over. The trial judge acknowledged that such an exchange happened, but denied Appellants' motion to recuse because the conversation "was done outside of the hearing of the jury. They weren't here. And they're the ones that make this decision." The disputed conversation was held after the trial judge granted Hurst's motion for a directed verdict.
{¶ 16} "This court lacks jurisdiction to hear the [] allegations regarding the trial judge's alleged bias and prejudice in violation of the Code of Judicial Conduct." Wilburn v. Wilburn,
{¶ 17} Appellants' third assignment of error is overruled.
"DEFENDANT'S COUNSEL ACTED IMPROPERLY IN HIS CROSS EXAMINATION OF PLAINTIFF MCCLINCEY AND CHARACTERIZATION OF HER, AND THE TRIAL COURT ERRED IN PERMITTING SAID MISCONDUCT, ALL TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS."
{¶ 18} Appellants argue that the trial court erred in allowing Hurst to characterize Mrs. McClincey "as a rich heiress `banker[,]'" and in allowing allegedly irrelevant questions about how she obtained ownership of the of the residence in question.
{¶ 19} "The character and extent of cross-examination regarding an appropriate subject matter is within the sound discretion of the trial court." Klausman v. Klausman, 9th Dist. *8
No. 21718,
{¶ 20} In the case sub judice, Appellants simply argue that Hurst was allowed to ask "irrelevant questions concerning whether the Dennies * * * had repaid Mrs. McClincey[,]" and that Hurst portrayed Mrs. McClincey "as a rich heiress `banker[.]'" When ruling on the Appellant's first objection to the allegedly irrelevant questioning, the court overruled the objection and provided the reasoning that counsel's question went to the issue of ownership of the premises. Later, when the Appellants again objected to the same line of questioning involving how McClincey acquired the property, the trial court reminded Appellants' counsel that there is "wide open cross-examination in the State of Ohio, sir [.]" Such actions do not show conduct on the part of the trial court which was inappropriate, let alone that which rises to the level of unreasonable, arbitrary or unconscionable behavior.
{¶ 21} Appellants' fourth assignment of error is overruled.
Judgment affirmed, in part, reversed, in part, and cause remanded.
Notes
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed equally to both parties. .
DICKINSON, J. CONCURS
Concurrence Opinion
{¶ 23} I concur in the majority's resolution of assignment of error number three, concluding that this Court lacks jurisdiction to address allegations of judicial misconduct and matters of disqualification. I respectfully dissent, however, as to the majority's resolution of assignments of error numbers one, two, and four. A review of the transcripts in this case reveals *10 that an official court reporter did not certify them in their entirety. As such, I would presume regularity and affirm the judgment of the lower court as to these assignments of error.
{¶ 24} In In re T. C., this Court opined the following:
*11"We begin by noting that it is the appellant's duty to transmit the transcript of proceedings to the court of appeals. App. R. 10(A). Loc. R. 5(A). This duty falls to the appellant because the appellant has the burden of establishing error in the trial court. Knapp v. Edwards Laboratories (1980),
, 61 Ohio St.2d 197 199 . Where the transcript of a hearing is necessary to resolve assignments of error, but such transcript is missing from the record, the reviewing court has `no choice but to presume the validity of the lower court's proceedings, and affirm.' Knapp,. 61 Ohio St.2d at 199"* * *
"This Court has indicated that it may not properly consider a transcript unless it is certified by an official or properly appointed court reporter. White v. Yuhas, 9th Dist. No. 03CA0135-M,
, at ¶ 2004-Ohio-5449 13 , citing Akron v. Giermann, 9th Dist. No. 20780,2002-Ohio-2650 , at ¶ 8. When the reporter prepares a transcript, it must be done in a manner consistent with the structure set forth in App. R. 9(B), the reporter must `certify the transcript as correct[,]' and must `state whether it is a complete or partial transcript.' App. R. 9(B). Loc. R. 6(B) explains that the certificate of an official court reporter must be signed by the court reporter and must reflect the court reporter's appointment by the trial court. See State v. Burrows (May 24, 2000), 9th Dist. No. 98CA007220, at * 1 (where the record failed to indicate that the reporter was `acting as the official court reporter for the Elyria Municipal Court,' appellant should have proceeded under App. R. 9(C) or 9(D))."Loc. R. 6(C) explains that no transcript of proceedings shall be considered as part of the record on appeal unless one of the following applies:
"(1) The official court reporter has certified the transcript as provided in [Loc. R. 6(B)];
"(2) The record contains an entry of the trial court appointing the court reporter who has certified the transcript;
"(3) The transcript is a part of the original papers and exhibits filed in the trial court;
"(4) The transcript has been incorporated into an App. R. 9(C) statement that has been approved by the trial court; or
"(5) The court of appeals has granted a motion to supplement the record with a transcript that was filed in a prior appeal." In re T.C., 9th Dist. Nos. 07CA009248 07CA009253,
, at ¶ 2008-Ohio-2249 16-19 .
The transcripts in this case do not comply with this Court's mandate inIn re T.C.
{¶ 25} Appellants filed four volumes of transcripts. Volumes One and Three do not have any court reporter certification. Volume Two has the following court reporter certification:
"I, Heather N. Mounsey, Official Court Reporter of the Court of Common Pleas, Lorain County, Ohio, do hereby certify that this is a correct transcript of the proceedings in this case on October 4, 2006. I further certify that this is a complete transcript of the proceedings on that date" (Emphasis added.)
Volume Four has the following different court reporter certification:
"I, Jacquelyn Waldron, Official Court Reporter of the Court of Common Pleas, Lorain County, Ohio, do hereby certify that this is a correct transcript of the proceedings in this case commencing on October 2, 2006. I further certify that this is a complete transcript of the proceedings on that date" (Emphasis added.)
Accordingly, the certification on Volume Two only certifies the proceedings on October 4, 2006, and the certification on Volume Four appears to certify only the proceedings that occurred on October 2, 2006. Moreover, a review of the docket reveals that there were no proceedings on October 2, 2006. The trial commenced on October 3, 2006 and lasted until October 6, 2006.
{¶ 26} This Court's Local Rules suggest the following format for a court reporter's certification of a complete transcript:
"I,________, official court reporter for [name of court], duly appointed therein, do hereby certify that the ["foregoing transcript of proceedings, consisting of pages," * * *] together with exhibits, is a true and complete transcript of the proceedings conducted before the Honorable______, judge of said court, on the_______day of________, 20__, as transcribed by me." Loc. R. 6(B)(1).
Our rules suggest such a format to ensure the propriety of the certification and the reliability of the transcripts being certified. After reviewing the certifications contained in Appellants' transcripts, I am not convinced of their propriety. As such, I do not believe that the record contains a correct and complete transcript of the proceedings below. I would presume regularity *12 and conclude that Appellants failed to establish their burden on appeal on their first, second, and fourth assignments of error. SeeKnapp, supra. Accordingly, I respectfully dissent with regard to these assignments of error, and concur with regard to Appellants' third assignment of error. *1