Livingston v. GrahamLivingston v. Graham
For Plaintiff-Appellant: Ray Livingston, Pro se, 225 South 6th Street, Steubenville, Ohio 43952
For Defendant-Appellee: Richard Graham, Pro se, 2016 Oregon Avenue, Steubenville, Ohio 43952
¶{1} Plaintiff-appellant Ray Livingston appeals the judgment of the Steubenville Municipal Court which overruled his objection from a magistrate’s decision entered in favor of defendant-appellee Richard Graham. On appeal, he claims that the decision was contrary to the weight of the evidence. However, we cannot reach the weight of the evidence on appeal because appellant failed to present a transcript or affidavit of the evidence to the trial court and failed to object to the magistrate’s decision with specificity. As such, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
¶{2} On January 16, 2009, appellant filed a small claims complaint against appellee in the Steubenville Municipal Court. He claimed that on February 1, 2008, appellee tried to knock a pole over that belonged to appellant and that appellee later deliberately ran into appellant’s vehicle with a truck. Appellant sought $1,300 in damages.
¶{3} On March 20, 2009, a trial was conducted before a magistrate, who was unconvinced by appellant’s evidence. Appellant filed a timely objection from the magistrate’s decision, stating merely that a hearing had been held, that he objected to the magistrate’s decision, and that he wanted the case heard by the judge. Appellant did not seek a transcript of proceedings nor did he file an affidavit in lieu of a transcript in support of his objection.
¶{4} On April 8, 2009, the trial court overruled appellant’s objection. The court explained that appellant failed to object with specificity. Appellant filed timely notice of appeal to this court.
¶{5} In responding to this court’s procedural requests, appellant complained that the magistrate apparently does not record its proceedings.1 He attempted to
provide this court with a brief document reiterating the facts and his evidence, which was apparently filed under
ASSIGNMENT OF ERROR
¶{6} Appellant’s sole assignment of error contends that the trial court “did not apply enough weight to my evidence and therefore the case must be reverse[d].” Factually, appellant states that appellee deliberately ran his truck into appellant’s car because he did not want appellant’s car there. Since he saw appellee trying to knock his pole over with a truck, he assumes it was appellee who damaged his vehicle.
¶{7} Appellate review of the manifest weight of the evidence in a civil case is much more deferential to the trial court than in a criminal case. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶26. The civil manifest weight of the evidence standard provides that judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. Id. at ¶24, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, syllabus.
¶{8} The reviewing court is obliged to presume that the findings of the trier of fact are correct. Id., citing Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80-81. This presumption arises in part because the fact-finder occupies the best position to watch the witnesses and observe their demeanor, gestures, and voice inflections and to utilize these observations in weighing credibility. Id., citing Seasons Coal, 10 Ohio St.3d at 80.
¶{10} Nevertheless, we cannot even review the weight of the evidence here.
¶{11} In addition, there are procedural problems below which preclude this court from viewing a statement of the evidence or even a full transcript if one had been presented. Where a magistrate is utilized, the procedure must be in accordance with
¶{13} Thus, the trial court could not review the magistrate’s weighing of the factual evidence. See Brown, 2005-Ohio-6416, ¶17, 32. This problem carries over into the appeal to this court as well for various reasons. See id. Cf. Sonoga v. Trumbull Cty. Child. Support Enf. Agency, 11th Dist. No. 2004-T-0110, 2005-Ohio-3616, ¶23 (where appellant filed an affidavit of evidence with the trial court and indicated that the magistrate’s hearing was not recorded); All Occasion Limousine v. HMP Events, 2004-Ohio-5116, ¶7 (where appellant filed detailed objections including the magistrate’s failure to record the proceedings and then submitted an affidavit of evidence to the trial court).
¶{14} Specifically, where the objecting party fails to provide the trial court with the transcript of the proceedings before the magistrate, the appellate court is precluded from considering the transcript of the magistrate’s hearing or the alternative affidavit of evidence submitted with the appellate record. See State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730; Petty v. Equitable Prod. & Eastern States Oil & Gas, Inc., 7th Dist. No. 05MA80, 2006-Ohio-887, ¶19, 22 (if no transcript has been presented to the trial court for ruling on the objections from the magistrate’s decision, then no transcript can be presented in appellate court). See, also, State v. Ishmail (1978), 54 Ohio St.2d 402, ¶1 of syllabus (“A reviewing court cannot add matter to the record before it, which was not a part of the trial court’s proceedings, and then decide the appeal on the basis of the new matter.”).
¶{15} In this event, both the trial court and the appellate court are bound by the magistrate’s factual findings. Petty 7th Dist. No., 05MA80 at ¶23.2 Thus, we cannot review factual issues such as the weight of the evidence where this issue was never
¶{16} As the trial court pointed out, there is another problem with appellant’s compliance with
¶{17} Appellant’s “objection” does not complain about the failure to record the magistrate’s proceedings. Thus, we cannot review whether the proceedings were recorded and whether they were required to be recorded where this issue was not raised to the trial court in the first instance. See Selby v. Selby, 7th Dist. No. 06BE55, 2007-Ohio-6700, ¶3-4, 12 (the failure to use an affidavit of evidence in objecting to the trial court is deemed waiver of any error regarding the lack of a transcript); Bell v. Bell (June 24, 1998), 9th Dist. No. 2680-M (appellant’s failure to use the alternative method of an affidavit of evidence constitutes waiver, and the lack of a recording before a magistrate is not a plain error of the trial court). See, also, Wooley v. Meluch, 2009-Ohio-449, ¶10-13.
¶{18} In fact, the document said to be an objection does not state any grounds at all for objecting. Instead, it merely sought a hearing before the trial court. This is not an actual objection. Rather, it is merely part of a remedy, the propriety of which was not alleged by appellant in any event as he did not allude to additional evidence. See
¶{19} Thus, the only obligation of the trial court was essentially a plain error review of the face of the magistrate’s decision. See
¶{20} For the foregoing reasons, the judgment of the trial court is hereby affirmed.
Donofrio, J., concurs.
Waite, J., concurs.