Finn v. Rutherford

2026 Ohio 760

• Court: Ohio Court of Appeals
• Decided: March 6, 2026
• Docket: L-25-00221
• Status: Published

Opinion

[Cite as Finn v. Rutherford, 2026-Ohio-760.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Michael Finn Court of Appeals No. L-25-00221

Appellee Trial Court No. CVG-25-13679

v.

Ramona Rutherford DECISION AND JUDGMENT

Appellant Decided: March 6, 2026

*****

Douglas A. Wilkins, for appellee.

Ramona Rutherford, pro se.

***** OSOWIK, P.J.

{¶ 1} This is an appeal from a judgment of the Toledo Municipal Court in Case No.

CVG-25-13679.

{¶ 2} Appellant, Ramona Rutherford, was a tenant of appellee, Michael Finn,

under a written lease agreement. On August 13, 2025, appellee filed a landlord's

complaint in the trial court alleging breach of the rental agreement as a result of

nonpayment of rent by the appellant. {¶ 3} On August 19, 2025, the Clerk issued a summons and complaint to appellant

by ordinary mail with a certificate of mailing. On that same date, the record also

establishes service by the court bailiff with the following entry:

Bailiff filed return of service as follows: Summons and complaint issued for defendant, RAMONA RUTHERFORD, posted on the door at 1020 N SUPERIOR #1 TOLEDO, OH 43604 on 08/19/2025. Bailiff unable to find anyone at said address. Electronic entry by BAILIFF KEEL.

{¶ 4} The record also shows that appellant filed an answer setting forth general

denials of the existence of a “valid and enforceable contract between the parties.”

{¶ 5} A hearing was held on August 28, 2025, before a magistrate. The record

establishes that both appellant and appellee were present when the case was called.

{¶ 6} At the conclusion of that hearing, the magistrate made a decision finding that

(1) Rutherford was in default under a written lease since August 1, 2025, (2) notice to

vacate was lawfully given, (3) and further ordered judgment for Finn for possession of

the premises. The magistrate’s order was filed August 29, 2025.

{¶ 7} The transcript of that proceeding is not part of the record before us. Neither

party to this appeal filed a praecipe with the Clerk directing the preparation and inclusion

of the transcript with this appeal.

{¶ 8} The trial court record also indicates that neither party filed objections to the

magistrate’s decision and findings. The trial court adopted the decision of the magistrate.

Assignments of Error

{¶ 9} Appellant asserts three assignments of error for our review.

2. Assignment of Error No. 1

The trial court erred and violated Appellant's due-process rights by entering judgment for possession where service of the eviction action and related notices was not properly made upon Appellant, but instead was left on the property and never actually received by Appellant. Assignment of Error No. 2 The trial court erred by failing to apply and enforce Toledo's "Pay to Stay" tenant- protection ordinance, despite Appellant's efforts and ability to pay the rent, fees, or bond amounts required to cure any alleged nonpayment and avoid eviction.

Assignment of Error No. 3

The trial court erred in granting judgment for possession and permitting a writ to issue where Appellee had made a verbal agreement with Appellant permitting her continued occupancy of the premises, and Appellant relied on that agreement to her detriment. Analysis

Failure to file objections to the Magistrate’s Decision and Findings

{¶ 10} As we have noted, neither party filed any objections to the decision and

findings made by the magistrate following the August 28, 2025 hearing. Civ.R.

53(D)(3)(b)(iv) provides that except for a claim of plain error, a party shall not assign as

error on appeal the court's adoption of any factual finding or legal conclusion whether or

not specifically designated as a finding of fact or conclusion of law under Civ.R.

53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by

Civ. R. 53(D)(3)(b). The failure to make a timely and specific objection to a magistrate's

report, as required under the rule, results in a waiver of claimed error by the trial court in

adopting a magistrate's findings of fact or conclusions of law. Foos v. Foos, 2009-Ohio-

3398, ¶ 14-22 (6th Dist.), citing Slough v. Slough, 2009–Ohio–1746, ¶ 26 (6th Dist.); Burns

3. v. Burns, 2008–Ohio–2483, ¶ 15 (6th Dist.); Crites v. Crites, 2004–Ohio–6162, ¶ 37 (6th

Dist.).

{¶ 11} We view appellant's assignments of error as challenges to both the

magistrate's decision and findings of fact. Accordingly, appellant's claims in this appeal are

deemed waived, absent a showing of plain error. However, plain error review is limited to

situations in which the error rises to the level of challenging the legitimacy of the

underlying judicial process itself. Goldfuss v. Davidson, 79 Ohio St.3d 116, 122 (1997).

{¶ 12} However, Rutherford has not argued, much less demonstrated, plain error in

this case. As such, we decline to construct such an argument on behalf of appellant and we

need not undertake a plain error analysis. Quehl v. Roberts, 2025-Ohio-4742 ¶ 15 (1st

Dist.); State v. Hager, 2019-Ohio-4544 ¶ 28 (5th Dist.); Dhillon v. Dhillon 2024-Ohio-

3022, ¶ 15 (8th Dist.); In re:A.N. 2009-Ohio-3167, ¶ 10 (9th Dist.).

{¶ 13} Nevertheless, even if we were to consider the service of process issue raised

in this appeal, we would find no plain error. We held long ago that service of process for

FED actions filed in Toledo Municipal Court are governed by the Rules of the Toledo

Municipal. G.K.G. Builders, Inc. v. Burgess, 2014-Ohio-2431, ¶ 9-10 (6th Dist.). Local

Rule 5 Forcible Entry and Detainer (D)(3)(b) deems service as being complete upon

leaving a copy of the summons and complaint at the usual place of residence of the person

to be served. Rutherford does not dispute that a copy of the summons and complaint was

posted on the door of the rental unit. Rather, she argues that service of process failed

because she was not personally served. Our review of the record does not show that this is

4. an extremely rare case where reversal is warranted to avoid a manifest miscarriage of

justice.

Absence of a Transcript

{¶ 14} Rutherford’s appeal is also seriously hampered by her failure to submit a

copy of the transcript of the underlying proceedings to this court. Appellant has not filed a

praecipe to the Clerk to prepare a transcript of the proceedings. It is appellant's duty to

ensure that the record contains all that is necessary for the reviewing court to determine the

appeal. Camp-Out, Inc. v. Adkins, 2007-Ohio-447 ¶20 (6Dist.),

{¶ 15} Where an authenticated transcript of proceedings in the trial court is

necessary to exemplify the facts which determined the issues presented there, its absence

requires a reviewing court to dismiss the appeal, or to affirm the judgment of the court

from which the appeal is taken. Id., citing Ford v. Ideal Aluminum, 7 Ohio St.2d 9

(1966).

{¶ 16} Appellant’s second and third assignments of error raise both factual and

legal issues concerning “Toledo’s Pay to Stay” ordinance and whether there was a verbal

agreement between the parties concerning payment and possession. Without a transcript,

as a reviewing court, we are simply unable to evaluate the merits of appellant's arguments

in this matter. See State ex rel. Montgomery v. R & D Chem. Co., 72 Ohio St.3d 202,

204(1995).

Conclusion

5. {¶ 17} On consideration whereof, the judgment of the Toledo Municipal Court is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24(A)(4).

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, P.J. JUDGE

Christine E. Mayle, J. JUDGE

Myron C. Duhart, J. CONCUR. JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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