Levine v. BrownLevine v. Brown
MARK LEVINE, ET AL. PLAINTIFFS-APPELLEES vs. JOANN BROWN DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
ATTORNEY FOR APPELLANT
Joann Brown
20896 South Woodland
Shaker Heights, Ohio 44122
William W. Jacobs
Christopher J. Klasa
Thompson Hine L.L.P.
3900 Key Center
127 Public Square
Cleveland, Ohio 44114
N.B. This entry is an announcement of the court‘s decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court‘s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court‘s announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(1).
JAMES J. SWEENEY, J.:
{¶ 2} On October 13, 2006, a storm caused a dead tree on defendant‘s property to fall onto plaintiff‘s property, damaging plaintiff‘s fence and plastic patio chairs. Defendant refused to pay for the damages. On January 2, 2007, plaintiff filed suit in the small claims division of the Shaker Heights Municipal Court. On June 29, 2007, the magistrate issued a decision in favor of plaintiff, awarding $640 for removing the tree, repairing the fence, and replacing the chairs. The magistrate found that defendant‘s tree was noticeably dead, she “was negligent in failing to remove” it, and she was liable for the damages.
{¶ 3} On July 11, 2007, defendant filed objections to the magistrate‘s decision and an “affidavit of the testimony.” In her affidavit, defendant stated that there was no “recorded testimony” of the March 29, 2007 hearing before the magistrate. It should be noted that the Shaker Heights Municipal Court records hearings before magistrates on audio tapes, which can be transcribed upon request. Defendant further represented in her affidavit that “she never saw or had knowledge of the dead tree or of any dangerous condition on [her] property,” and that plaintiff did not make her aware of the dead tree before the storm.
{¶ 4} On July 25, 2007, the court overruled defendant‘s objections and adopted the magistrate‘s decision, awarding judgment to plaintiff in the amount of
{¶ 5} On August 23, 2007, defendant appealed the court‘s decision, and on October 16, 2008, this court remanded the case to the municipal court to “decide in the first instance” whether the transcript was “truly unavailable to [defendant] at the time she submitted her objections to the magistrate‘s decision.” Levine v. Brown, Cuyahoga App. No. 90345, 2008-Ohio-5344, at ¶13.
{¶ 6} On January 21, 2009, the municipal court found the following upon remand:
{¶ 7} “1. Defendant never requested the tapes for a transcript at the time she filed her objections to the magistrate‘s decision.
{¶ 8} “2. The tapes were available at the time defendant filed her objections.
{¶ 9} “3. Because the tapes were available at the time defendant filed her objections and defendant failed to request them and failed to provide a transcript to the court with her objections, the objections were overruled.
{¶ 10} “4. The first time defendant requested the tapes in order to prepare a transcript was when defendant was filing her appeal.
{¶ 12} Defendant now appeals this January 21, 2009 order and raises three assignments of error for our review. We address all assignments of error together:
{¶ 13} “I. The court erred and abused its discretion in finding Appellant never requested tapes for a transcript, [sic] that the tapes were available at the time Appellant filed her objections to the magistrate‘s decision.
{¶ 14} “II. The court erred and abused it [sic] discretion in finding the first time Appellant requested tapes of the proceedings was when she filed her appeal.
{¶ 15} “III. The trial court erred and abused it [sic] discretion in overruling Appellant‘s objections to the magistrate‘s decision.”
{¶ 16} When ruling on a magistrate‘s decision, the trial court “shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law.”
{¶ 18}
{¶ 19} In the instant case, transcripts from the hearing before the magistrate were not filed in the trial court at the time the court issued its January 21, 2009 decision. Rather, defendant filed an “affidavit of the testimony” along with her
{¶ 20} Defendant failed to meet the
{¶ 21} We conclude that the court had no evidence or documents before it to review, and therefore, could not make a finding independent of the magistrate‘s report. Accordingly, the magistrate‘s findings of fact are considered established and the court did not abuse its discretion in overruling defendant‘s objections.
{¶ 22} Furthermore, even assuming that the transcript was unavailable, thus allowing defendant to file an affidavit of the evidence, we find that defendant‘s affidavit does not suffice under
{¶ 23} For example, defendant‘s affidavit focuses on plaintiff‘s failure to make her aware that her tree was dead and that it may be dangerous. However, Ohio law puts no such duty on plaintiff. Additionally, defendant‘s affidavit focuses on her lack of actual knowledge of the dead tree. However, defendant ignores the doctrine of constructive knowledge, which Ohio law recognizes, and of which plaintiff presented evidence.
{¶ 24} The substantive legal issue in the instant case is whether defendant “exercised reasonable care to prevent an unreasonable risk of harm from the dead tree.” Kurzenberger v. Bennett/Dover Homes, Inc. (May 29, 1997), Cuyahoga App. No. 71246 (emphasis omitted). See, also, Heckert v. Patrick (1984), 15 Ohio St.3d 402, 404 (holding that “an owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from property“).
{¶ 25} The magistrate concluded in her decision that “defendant‘s tree was sick enough that a reasonable person viewing it would notice it was dangerous.” This is supported by photographs in the record showing the dead tree riddled with termite holes, with no live branches, bark, or green leaves. Additionally, plaintiff testified that the tree had been dead for at least a year, and that it was easily
{¶ 26} In conclusion, we find that the municipal court did not abuse its discretion in adopting the magistrate‘s report, as it did not have proper
Judgment affirmed.
It is ordered that appellees recover from appellant their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Shaker Heights Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
JAMES J. SWEENEY, JUDGE
COLLEEN CONWAY COONEY, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR