Garrett v. Jackson

2024 Ohio 2902

• Court: Ohio Court of Appeals
• Decided: August 1, 2024
• Docket: 113016
• Status: Published

Opinion

[Cite as Garrett v. Jackson, 2024-Ohio-2902.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

GIFTED A. GARRETT, :

Plaintiff-Appellee, : No. 113016 v. :

DEREK JACKSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: August 1, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-21-956750

Appearances:

Gifted A. Garrett, pro se.

Derek Jackson, pro se.

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Derek Jackson (“Jackson”), pro se, appeals a

judgment awarding plaintiff-appellee, Gifted A. Garrett (“Garrett”), damages in the

amount of $36,530.26, plus court costs. Jackson claims the following errors:

1. The trial court lacks evidence of why the appellant couldn’t testify. Which [sic] is consistent with [United States] v [Pennycooke], 65 F.3d 9 (3rd Circ.1995)[.] 2. Constitution was ratified on December 15, 1971. It protects the right for citizens to have a jury trial. The trial court took the appellant’s right to have jury trial. Appellant was aware that the trial judge had dispensed a lien on his property around 12/6/2021. By this notion alone[,] appellant would never receive a fair or just verdict.

3. The trial court lacks evidence where the trial court was given an unsigned lease to dispense a lien on Appellant’s property. Appellant knowingly submitted to the court a fraudulent document.

4. The appellant was barred from introducing evidence that would have shown appellant suffered emotionally and economically. Please refer to case law Holmes v. South Carolina 54745 [sic].

5. The trial judge instructed the appellee to provide receipts to appellant in a timely manner prior to trial. The appellee provided the receipts the day of trial and this action prevented the appellant’s attorney time to research and investigate the documents. This action also denies the appellant the right to present a defense. Please refer to case law Ferensic v. Birkett, 501 F.3d 469 (6th Cir.2007).

We reverse the trial court’s judgment and remand the case to the trial

court for a new hearing on damages.

I. Facts and Procedural History

In May 2020, Garrett and Jackson entered into a lease agreement that

allowed Garrett to lease two units in a building owned by Jackson on Kinsman

Avenue in Cleveland (“the property”). Garrett claims to have invested money to

renovate and improve the units for use as a restaurant and a salon. Pursuant to the

terms of the lease, he also paid a security deposit and rent until October 2021, when

the parties’ relationship disintegrated, and Jackson allegedly interfered with

Garrett’s use of the property.

In December 2021 Garrett filed suit against Jackson, asserting claims

for breach of the covenant of quiet enjoyment, tortious interference with a business interest, civil damages for a criminal act, unjust enrichment, and injunctive relief.

Garrett alleged that Jackson constructively evicted him from the property by

changing the locks to the units and turning off the utilities. Garrett further alleged

that Jackson physically threatened him with a gun and that Jackson was

subsequently charged with aggravated menacing and disrupting a public service

following an incident at the property. Garrett alleged that he was unable to operate

his businesses due to Jackson’s actions and that he suffered damages as a result.

After obtaining service on Jackson and after Jackson, pro se, filed an

answer, Garrett served Jackson with discovery requests including requests for

admissions. In one of the requests, Garrett asked Jackson to admit that the parties

had a validly executed lease agreement. Jackson failed to file answers to the

admissions, and Garrett filed a partial motion for summary judgment based on the

admissions being deemed admitted pursuant to Civ.R. 36(A). Two months later, the

trial court granted the motion for summary judgment as unopposed. The trial court

concluded, based on the arguments and evidence presented, that Jackson breached

the parties’ lease agreement and was liable for damages on Garrett’s claims.

Jackson subsequently obtained counsel, who entered an appearance.

His newly retained counsel filed a motion for relief from judgment, arguing that

Jackson’s failure to file a brief in opposition to the motion for summary judgment

was excusable due to his lack of legal training, that the motion was timely filed, and

that the lack of a signed lease constituted a meritorious defense. The trial court

denied the motion, and the court later conducted a hearing on damages. Garrett testified at the hearing that he gave Jackson a $5,000 check plus

$1,000 in cash for a security deposit prior to taking possession of the property in

May 2020. He also stated that he paid $8,000 to have the windows tinted in the

restaurant and for a mural to be painted on an exterior wall; $3,000 to install new

floors in the salon; $1,940 to construct an interior wall; $6,926 for a point-of-sale-

credit-card service; $3,680 to construct two reception desks; $1,720 for decals and

signs; $2,020 for electrical work; $2,720 to paint the salon; and $400 to install an

MP3 player and speakers. (Tr. 14, 18, 30-32, 40-42, and 50-55.) He also purchased

a convection oven for $1,356, and a refrigerator for $2,194. Garrett stated that he

paid $4,954.80 for an alarm system and that he purchased and installed nine

booths, a security system, and other equipment.

Garrett’s salon and restaurant opened for business in May 2021. In the

fall of 2021, Jackson had a disagreement with a hair stylist, who was renting a chair

in Garrett’s salon. According to Garrett, Jackson began sabotaging his businesses

in October 2021, by turning off the utilities to the property. Garrett claims he was

unable to properly run his businesses without electricity and water, but he

nevertheless continued paying $1,500 per month in rent. Jackson later filed an

eviction action against Garrett in the Cleveland Municipal Court, and the case was

resolved by an agreed judgment entry wherein Garrett agreed to vacate the property

in January 2022. (Tr. 114.)

Garrett took most of his equipment and other items that were not nailed

down and moved them to a new location down the road. He claimed, however, that some of his property was damaged by Jackson. Garrett testified about the damage

to his property and the cost of the movers. He presented receipts and bank

statements to corroborate his testimony. The parties disputed who caused the

damage, and Jackson claimed that Garrett’s receipts were fraudulent. At the close

of his case, Garrett requested damages in the amount of $147,775.96. (Tr. 79.)

After hearing the evidence, the trial court awarded damages in the

amount of $28,030.26. Pursuant to a provision in the lease agreement, the court

also awarded attorney fees in the amount of $8,500. In sum, the court awarded

judgment in favor of Garrett and against Jackson in the amount of $36,530.26, plus

court costs. Jackson now appeals the trial court’s judgment.

II. Law and Analysis

A. Right to Testify

In the first assignment of error, Jackson argues the trial court erred by

refusing to allow him to testify in rebuttal to Garrett’s testimony. In the fourth

assignment of error, Jackson argues the trial court erred by refusing to allow him to

testify as to how Garrett’s actions caused him to suffer emotionally and

economically. In both assignments of error, Jackson argues the trial court erred in

refusing to allow him to testify.

Pursuant to Evid.R. 103(A)(2), a party may not predicate error on the

exclusion of evidence unless two conditions are met: (1) the exclusion of such

evidence affected a substantial right of the party, and (2) the substance of the

excluded evidence was made known to the court by proffer or was apparent from the context within which questions were asked. State v. Gilmore, 28 Ohio St.3d 190,

(1986), syllabus; Hallisy v. Hallisy, 2023-Ohio-2923, ¶ 20 (11th Dist.), citing State

v. Conway, 2006-Ohio-791, ¶ 113; Evid.R. 103(A)(2).

Due process is a substantial right. Thomasson v. Thomasson, 2018-

Ohio-2417, ¶ 12-21. “A fundamental requirement of due process is notice and an

opportunity to be heard.” In re R.M., 2024-Ohio-1885, ¶ 19 (8th Dist.). The trial

court’s refusal to allow Jackson to testify affected a substantial right because it

deprived him of his right to be heard in his own defense.

Jackson did not proffer the evidence he would have presented if he

had been permitted to testify, but the substance of the excluded testimony was

apparent from the context within which questions were asked of Garrett. Jackson

claimed throughout the damages hearing that Garrett presented fraudulent receipts

in support of his claim for damages. Garrett was the only witness to testify at the

hearing, and his credibility was questionable. For example, when Garrett was asked

if he had any receipts to prove his gross income from the restaurant before Jackson

allegedly sabotaged it, he claimed that neither the point-of-sale-service company

nor the bank would provide documentation to him. He stated:

A: What happened was I was trying to get in contact with them. They’re not sharing or cooperating with me in no type of way whatsoever. The account that I had went through Key Bank was closed as well and they have no documentation for me either. That’s why I presented this documentation to my lawyer just ─

Q: So I wanted to ask about that. All the documents that we have talked about, all the exhibits that you have identified, those are documents that you have provided to your attorney, correct? A: Correct.

Q: And you were asked several times about you didn’t doctor them, or change them, or alter them in any way, correct?

A: Yes, sir.

(Tr. 88-89.)

Thereafter, defense counsel questioned Garrett about his lengthy

criminal history involving crimes of forgery, tampering with evidence, and misusing

a credit card. (Tr. 90-93.) To confuse matters further, Garrett testified that he paid

restaurant expenses with money from his separate daycare business. (Tr. 95.) He

also admitted that he paid some bills with cash and, therefore, did not have bank

records to substantiate those claims. (Tr. 97-98.) And there was evidence that he

submitted two invoices for the same item and may have been seeking double

recovery for that item. (Tr. 102.)

Jackson’s trial counsel asserted that Garrett’s documentation was

fraudulent and that Jackson intended to testify regarding Garrett’s fraud. The trial

court refused to allow Jackson to testify because it was a damages-only hearing, and

Jackson’s lawyer had an opportunity to cross-examine Garrett. (Tr. 124.) However,

cross-examination is limited to the scope of Garrett’s responses. Had Jackson been

given an opportunity to testify in his own defense, he could have rebutted Garrett’s

testimony and provided additional information with which to evaluate the

credibility of Garrett’s damages. Therefore, the trial court’s refusal to allow Jackson

to testify about Garrett’s alleged damages prejudiced Jackson’s defense. However, Jackson did not present a counterclaim for damages.

Therefore, the court’s refusal to allow Jackson to testify about his alleged emotional

and economic harm did not violate a substantial right because Jackson did not have

any claims for emotional or economic harm pending before the court.

Accordingly, the first assignment of error is sustained and the fourth

assignment of error is overruled.

B. Jury Trial

In the second assignment of error, Jackson argues the trial court

deprived him of his right to a jury trial because the damages hearing was tried to the

court instead of a jury. However, the right to a jury trial is not automatic. Soler v.

Evans, St. Clair & Kelsey, 94 Ohio St.3d 432 (2002). Civ.R. 38 governs the right to

a jury trial in civil cases and states, in relevant part, that “[t]he failure of a party to

serve a [jury] demand as required by this rule and to file it as required by Rule 5(D)

constitutes a waiver by him of trial by jury.” Civ.R. 38(D).

Jackson did not serve a jury demand as provided by the Ohio Rules of

Civil Procedure. Jackson filed a pro se answer using a form provided by the common

pleas court. The form includes an option to request a jury by checking the applicable

box in the caption, but Jackson left the box unmarked. By neglecting to demand a

jury, Jackson waived his right to a jury trial. The fact that Jackson represented

himself pro se does not change that fact since “‘[p]ro se civil litigants are bound by

the same rules and procedures as those litigants who retain counsel.’” Heller v. Ohio Dept. of Jobs & Family Servs., 2010-Ohio-517, ¶ 18 (8th Dist.), quoting Meyers v.

First Natl. Bank, 3 Ohio App.3d 209, 210 (1st Dist.1981).

Moreover, a lawyer entered an appearance on Jackson’s behalf after

the answer was filed but before the damages hearing. The lawyer did not seek to

amend the answer or otherwise request a jury trial. Therefore, the trial court did not

deprive Jackson of a right to a jury trial because he waived the right by failing to

demand a jury.

The second assignment of error is overruled.

C. Unsigned Lease

In the third assignment of error, Jackson argues Garrett failed to

present sufficient evidence of damages because his claims were based on an

unsigned lease agreement. He contends that without a signed lease, Garrett could

not prove damages resulting from a breach of the lease.

An unsigned copy of the lease was attached to the complaint and

presented at the damages hearing. The attorney who prepared the lease averred in

an affidavit attached to Garrett’s partial motion for summary judgment that it was a

true and accurate copy of the lease he prepared for the parties. Garrett averred in a

separate affidavit that the parties signed a copy of the lease in the presence of a

notary, who notarized it. Moreover, Garrett asked Jackson to admit that he

breached the lease agreement in his requests for admissions. Because Jackson failed

to respond to the request for admissions, the fact that Jackson breached the lease

was deemed admitted. Therefore, the trial court had conclusive evidence that Jackson breached the lease agreement. Accordingly, the third assignment of error

is overruled.

D. Last-Minute Receipts

Finally, in the fifth assignment of error, Jackson argues he was

prejudiced by Garrett’s failure to produce copies of the receipts he intended to

introduce as evidence in a timely manner. He contends that because they were

produced on the day of the hearing, his trial counsel did not have sufficient time to

research and investigate the documents.

Jackson cites Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007), in

support of his argument. However, he does not cite to any part of the record, as

required by App.R. 16(A)(7), to support his claim that Garrett failed to produce the

receipts in a timely manner.

In Ferensic, a federal district court granted a criminal defendant

habeas relief on grounds that his Sixth Amendment rights were violated when a

court refused to allow his expert to testify at trial. The court excluded the expert’s

testimony because the defendant failed to produce his expert’s report by the court’s

deadline. In affirming the grant of habeas relief, the Sixth Circuit held that the

defense expert should have been allowed to testify because there were less severe

sanctions available, and the exclusion of the expert testimony deprived the

defendant of his Sixth Amendment rights.

Ferensic is distinguishable from the instant case because it involved a

criminal’s Sixth Amendment rights, and this case involves a civil matter. It also fails to support Jackson’s argument because it holds that the expert should have been

allowed to testify despite the defense’s failure to produce the expert report in a

timely manner.

The appellant bears the burden of demonstrating error on appeal.

Taylor-Stephens v. Rite Aid of Ohio, 2018-Ohio-4714, ¶ 121 (8th Dist.). Appellate

courts are not advocates. Id. Therefore, appellate courts “‘cannot and will not

search the record in order to make arguments on appellant[’s] behalf.’” Id., quoting

Helman v. EPL Prolong, Inc., 139 Ohio App.3d 231, 240 (7th Dist. 2000). Where an

appellant fails to comply with App.R. 16(A)(7) by failing to cite to any portions of the

record that he believes support his argument, the reviewing court may disregard the

assignment of error. Id., citing Young v. Kaufman, 2017-Ohio-9015, ¶ 44 (8th

Dist.), citing App.R. 12(A)(2). These rules apply even when the appellant is a pro se

litigant because pro se litigants are bound by the same rules as litigants who are

represented by counsel. Nunn v. Mitchell, 2023-Ohio-2484, ¶ 7 (8th Dist.) (Pro se

appellant’s assigned errors overruled where pro se appellant failed to comply with

App.R. 12 and 16.).

Jackson failed to support his argument with citations to relevant

portions of the record demonstrating that he objected to Garrett’s failure to produce

the receipts in a timely manner or that the issue was otherwise raised in the trial

court. In our review of the transcript, we found no objections made during the trial

because of the untimely production of the receipts. Moreover, many, if not all, of

Garrett’s receipts and bank records were attached to the motion for summary judgment that was filed months before the damages hearing. Therefore, Jackson’s

argument lacks merit.

The fifth assignment of error is overruled.

Judgment reversed. Case remanded to the trial court to allow Jackson

to testify at a new hearing on damages.

It is ordered that appellant recover from appellee 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

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., and SEAN C. GALLAGHER, J., CONCUR