CHARLES O. MANNINEN v. VICTORIA ALVAREZ d.b.a. VICTORIA‘S STUDIO & GALLERY
CASE NO. CA2013-06-106
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
1/13/2014
[Cite as Manninen v. Alvarez, 2014-Ohio-75.]
M. POWELL, J.
APPEAL FROM BUTLER COUNTY AREA III COURT Case No. CVI200174
Joseph R. Matejkovic, 8050 Beckett Center Drive, West Chester, Ohio 45069-5018, for defendant-appellee
M. POWELL, J.
{¶ 1} Plaintiff-appellant, Charles Mаnninen, appeals a decision of the Butler County Area III Court denying his motion for attorney fees. For the reasons set forth below, we reverse the judgment of the trial court and remand the matter for further proceedings
{¶ 2} On February 10, 2012, Manninen filed a small claims action against defendant-appellee, Victoria Alvarez, for the recovery of a $600 security deposit Manninen paid to lease an apartment from Alvarez. Manninen claimed, pursuant to
{¶ 3} On December 13, 2012, Manninen moved for an order awarding attorney fees. Attached to the motion was the affidavit of Dwight Packard II, as well аs attachments of billing records (the “Packard Affidavit“). Packard averred that, in his capacity as a partner at the law firm representing Manninen, he could verify that Joshua Morrow had been Manninen‘s attorney, that Manninen had inсurred reasonable fees based upon Morrow‘s services, and that the billing records attached to the affidavit reflected the charges owed by Manninen.
{¶ 4} On December 20, 2012, the trial court scheduled a “hearing for attorney‘s fees” for January 16, 2013. A magistrate presided over the hearing and ultimately denied Manninen‘s motion, finding: (1) attorney fees are “optional” under
{¶ 5} Manninen timely objected to the magistrate‘s decision, arguing attorney fees аre mandatory under
{¶ 6} On May 24, 2013, the trial court sustained in part and overruled in part Manninen‘s objections to the magistrate‘s decision. The trial court found that an award of attorney fees is mandаtory under
{¶ 7} Manninen appeals the trial court‘s decision, raising four assignments of error:
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF MANNINEN BY CONSIDERING “POTENTIAL” EVIDENCE THAT WAS NOT PROPERLY BEFORE THE COURT.
{¶ 10} Assignment of Error No. 2:
{¶ 11} THE [TRIAL] COURT ERRED TO THE PREJUDICE OF MANNINEN BY
{¶ 12} Assignment of Error No. 3:
{¶ 13} THE [TRIAL] COURT ERRED TO THE PREJUDICE OF MANNINEN BY CONSIDERING OPPOSING COUNSEL‘S RHETORIC AS CONFLICTING EVIDENCE.
{¶ 14} Assignment of Error No. 4:
{¶ 15} THE [TRIAL] COURT ERRED TO THE PREJUDICE OF MANNINEN TO THE EXTENT THAT ITS DECISION DENYING FEES WAS BASED UPON A LACK OF TRANSCRIPT IN RECORD (SIC).
{¶ 16} In his four assignments of error, Manninen argues the trial court improperly denied his motion for attorney fees because (1) the only evidence presented to the trial court wаs the Packard Affidavit; (2) Alvarez produced no contradictory evidence to the Packard Affidavit; and (3) an evidentiary hearing was not necessary in order for the trial court to award attorney fees. Manninen further contends he was not required to provide a copy of the transcript of the January 16, 2013 hearing to the trial court because his arguments relate to the magistrate‘s legal conclusions and do not involve questions of fact.
{¶ 17} The Ohio Supreme Court has held, “[u]nder
{¶ 18} Manninen had the burden of presenting evidence that the trial court could rely upon when awarding reasonable attorney fees. Alvarez argues the Paсkard Affidavit is inadmissible because it was not qualified pursuant to any exception to the hearsay rule under
{¶ 19} We note initially that Alvarez‘s argument that the Packard Affidavit was inadmissible hearsay and the trial court‘s reliance on Young are in error. In Young, the trial court awarded attorney fеes based solely upon a claim for attorney fees contained within a post-trial brief. Id. at *1. The Tenth District observed that an affidavit as to attorney fees may be considered, but “in the case of conflicting evidence * * * аn evidentiary hearing [is] required to resolve the issue.” Id. at *4. Young has no application to the instant matter. The Tenth District‘s holding in Young must be construed within the context of the procedural posture it presented to the court of appeals. Young was an appeal of a case from the municipal court‘s regular civil docket. Id. at *1. Therefore, the proceeding was subject to the
{¶ 20} We turn now to the trial court‘s ruling that the absence of a transcript of the magistrate hearing on attorney fees prevents review of the magistrate‘s denial of attorney fees.
{¶ 21}
An objection to а factual finding, whether or not specifically designated as a finding of fact under
Civ.R. 53(D)(3)(a)(ii) , shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding or an affidavit of that evidence if a trаnscript is not available.
(Emphasis added.)4 Upon objecting to the magistrate‘s denial of his motion for attorney fees, Manninen should have filed a transcript of the January 16, 2013 hearing. As a transcript was not provided, the trial court‘s independеnt review of the record was limited to an examination of the magistrate‘s conclusions of law and recommendations in light of any accompanying findings of fact. See Singh v. Wadhwa, 12th Dist. Warren No. CA2013-02-009, 2013-Ohio-3997, ¶ 19 (holding that where a transcript has not been filed, “the trial court is limited to examining only the magistrate‘s conclusions of law and recommendations and has the discretion to adopt the factual findings of the magistrate“); In re Estate of Haas, 10th Dist. Franklin No. 07AP-512, 2007-Ohio-7011, ¶ 23 (“[A]lthough a trial court is required to undertake an independent review when ruling on objections pursuant to
{¶ 22} In this case, the magistrate‘s February 6, 2013 decision noted that, at the January 16, 2013 hearing on Manninen‘s motion for attorney fees, “there was no evidence.” Normally, the failure to file a transcript of the magistrate‘s hearing would be fatal to an objection to the magistrate‘s factual findings, as it would prevent a trial court‘s independent review of the evidence. Sеe
{¶ 23} The trial court‘s decision and entry overruling Manninen‘s objection relating to the denial of attorney fees focuses on what other evidence Manninen may have presented besides the Packard Affidavit to support an awаrd of attorney fees. However, the magistrate‘s decision provided there was “no evidence” presented at the January 16, 2013 hearing on attorney fees. Alvarez‘s memorandum opposing Manninen‘s objection to the mаgistrate‘s decision discloses she presented no evidence in opposition to the motion for attorney‘s fees and she concedes this in her brief. Therefore, there was no additional evidence presented at the hearing for the trial court to review.
{¶ 24} As stated, the rules of evidence are inapplicable to this small claims proceeding. Therefore, an informal presentation of evidence is permissible and the Pаckard Affidavit attached to Manninen‘s motion for attorney fees was competent evidence. The trial court noted the Packard Affidavit was before the court but refused to consider it on the basis
{¶ 25} Accordingly, the matter is reversed and remanded to the trial court for consideration of thе Packard Affidavit. The trial court must determine whether there is sufficient evidence to support an award of attorney fees and, if so, in what amount is reasonable.
{¶ 26} Judgment reversed and remanded.
HENDRICKSON, P.J., and S. POWELL, J., concur.