FRANK KRAMANAK v. JOHN MYERS, ET AL.
Case No. 2013CA00010
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
July 8, 2013
2013-Ohio-2977
Hon. W. Scott Gwin, P.J.; Hon. William B. Hoffman, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil appeal from the Canton Municipal Court, Case No. 2012-CVG-06726; JUDGMENT: Affirmed
For Plaintiff-Appellee
ALETHA CARVER
MATTHEW HUNT
4775 Munson Street N.W.
Canton, OH 44718
For Defendants-Appellants
JOHN MYERS PRO SE
SANDY MYERS PRO SE
P.O. Box 414
Magnolia, OH 44643
Gwin, P.J.
{¶1} Appellants appeal the December 31, 2012 judgment entry of the Canton Municipal Court approving and confirming the magistrate‘s report of December 12, 2012.
Facts & Procedural History
{¶2} Pursuant to a written lease agreement, appellants entered into possession of 1119 – 37th Street N.E., Canton, Ohio, 44714, approximately nineteen (19) years ago as tenants of Joan Kramanak. Appellee Frank Kramanak is the power of attorney for Joan Kramanak. The parties renewed the original lease several times with the most recent lease renewal expiring October 1, 2009. Appellants then remained in the property as holdover tenants.
{¶3} Appellants contacted the Stark County Health Department on June 11, 2012 regarding mold and water issues in the apartment and the continued failure of appellee to remedy the mold and water issues. The inspector determined there was mold in the basement laundry room and storage room. The mold was abated on July 11, 2012, after appellee contracted with an outside company to remove the mold.
{¶4} On August 16, 2012, appellee gave appellants a thirty-day notice to vacate the property, which became effective on September 25, 2012. Appellee alleges that, after the thirty-day notice, appellants failed to pay rent for August, September, and October, and failed to leave the premises. Appellants state they paid the rent for all months except September and they vacated the premises by October 1, 2012.
{¶5} Appellee filed a forcible entry and detainer action against appellants on October 12, 2012. At the hearing on the forcible entry and detainer action on October
{¶6} An evidentiary hearing on appellee‘s second cause of action for damages and on appellants’ counterclaim for retaliation was held before a magistrate on November 28, 2012. A magistrate‘s report was issued on December 12, 2012. The magistrate found, from the evidence presented, the parties had a nineteen (19) year landlord/tenant relationship. The magistrate awarded judgment against appellants in the amount of $5,011.06 plus costs and interest and dismissed appellants’ counterclaim for retaliation for lack of evidence. Specifically, the magistrate awarded appellee the following: $867.00 for clean up/dumpster, $187.06 for glass door thermopane, $212.00 for front storm door, $150.00 for downstairs bedroom door, $150.00 for family room door, $120.00 for kitchen and bedroom lights, $100.00 for family room paneling, and $3,650.00 for back rent. The magistrate deducted the $425.00 security deposit from the total damages awarded. All other alleged damages were found by the magistrate to be normal wear and tear of a nineteen year tenancy. The magistrate found no evidence to establish any retaliatory actions on the part of appellee. The trial court judge approved and confirmed the magistrate‘s decision on December 31, 2012. Appellants did not file objections to the magistrate‘s December 12, 2012 decision, but filed an appeal of the trial court‘s December 31, 2012 entry and assign the following errors on appeal:
{¶8} “II. THE DISTRICT COURT ERRED IN JUDGMENT OF $3,650.00 TOTAL BACK RENT AWARDED TO PLAINTIFF.
{¶9} “III. THE DISTRICT COURT ERRED IN JUDGMENT THAT DEFENDANT‘S COUNTERLCAIM SHOULD BE DISMISSED.
{¶10} “IV. THE DISTRICT COURT ERRED IN JUDGMENT ENTITLING PLAINTIFF $867.00 FOR CLEANUP AND DUMPSTER.
{¶11} “V. THE DISTRICT COURT ERRED IN AWARDING REPLACEMENT COSTS, NUMBERED 2, 3, 4, 5, 6 ON MAGISTRATE‘S REPORT.”
Analysis
{¶12}
{¶13} However, a party is not prohibited from assigning errors on appeal related to the court‘s adoption of a magistrate‘s factual findings if the required language of
{¶14} However, while appellants can assign errors related to the trial court‘s adoption of the magistrate‘s findings of fact and conclusions of law on appeal because of the lack of the required
“If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to
App.R. 10 , who may serve objections or propose amendments to the statements within ten days after service. The statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act prior to thetime for transmission of the record pursuant to App.R. 10 , and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal.”
{¶15} On November 28, 2012, the magistrate held a hearing at which he heard evidence regarding the amount of damages and evidence regarding appellants’ retaliation claim. The record reflects appellants failed to request a transcript of the November 28, 2012 evidentiary hearing pursuant to
By Gwin, P.J.,
Hoffman, J., and
Delaney, J., concur
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
WSG:clw 0617
FRANK KRAMANAK v. JOHN MYERS, ET AL.
CASE NO. 2013CA00010
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
2013-Ohio-2977
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Canton Municipal Court is affirmed. Costs to appellants.
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY