Kilroy v. B.H. Lakeshore Co.

676 N.E.2d 171, 111 Ohio App. 3d 357

• Court: Ohio Court of Appeals
• Decided: May 28, 1996
• Docket: No. 69391.
• Status: Published

Opinions

O’Donnell, Judge.

Martin G. Kilroy, pro se, appeals a $2,250 judgment of the Euclid Municipal Court against him in favor of B.H. Lakeshore Company, the landlord, on its claims for leasehold damages after Kilroy filed suit to recover his $750 security deposit.

This is the second time the parties have litigated issues relating to this lease. On March 3, 1994, Lakeshore sued Kilroy for unpaid rent which Kilroy withheld because Lakeshore failed to make repairs to the premises. The trial court resolved that case when the parties signed an agreed judgment entry dated July 11, 1994 which provided for a payment schedule for the rent due to Lakeshore, a mutual release of damages to the premises as of the date of the judgment entry, and the termination of the lease on September 30, 1994. Neither party appealed from that judgment.

In this action, Kilroy sued Lakeshore on February 13,1995, to recover his $750 security deposit. In response, Lakeshore counterclaimed for damages to the property which it alleged had occurred subsequent to the resolution of the first case.

This matter was heard by a referee, who, after a hearing, made no specific findings but recommended judgment in favor of Kilroy on the security deposit claim in the sum of $750 and in favor of Lakeshore on its counterclaim in the sum of $2,250 and attached twenty-five exhibits in support thereof. Kilroy objected to that recommendation, but never filed an affidavit or transcript with the trial court.

On June 28, 1995, the trial judge approved and confirmed the referee’s report and entered its own judgment in accord with the recommendation. Kilroy now timely appeals, assigning five errors for our review.

I

The first assignment of error states:

“The trial court erred in adopting the report of the referee where the referee failed to support his recommendation with a report of the facts.”

Kilroy complains that the referee failed to make findings of fact in his report about the evidence presented at hearing and therefore the court erred in adopting his report.

Lakeshore suggests that Kilroy failed to submit a transcript or an affidavit in support of his objections to the referee report as provided by Civ.R. 53(E)(6) and hence failed to make a proper objection to the referee’s report.

Thus, the issue presented for our review is whether the trial court erred in adopting the report of the referee.

This case presents for our review two competing deficiencies in the handling of this matter in the municipal court, one concerning the report of the referee and the other concerning the manner in which appellant presented objections for review.

Civ.R. 53E(1) states concerning the referee’s report:

“The referee shall prepare a report upon the matters submitted by the order of reference.”

Further, concerning the duty of a referee, the court in Garcia v. Tillack (1983), 9 Ohio App.3d 222, 9 OBR 372, 459 N.E.2d 918, stated:

“Civil Rule 53 requires the referee to prepare a report which contains such factual information as may be necessary to support the findings and recommendations made. The trial judge is then required to review the report and make an independent analysis of the underlying facts involved in the dispute.”

And, finally, Bedard v. Lockbourne (1990), 69 Ohio App.3d 452, 590 N.E.2d 1327, the court affirmed the judgment of a trial court which adopted a referee’s report and stated:

“The referee’s report was not ideally prepared but it contained the essential findings and conclusions.”

Here, the referee held a hearing and prepared a report which did not contain any specific findings, but did make a recommendation to the court supported by twenty-five attached exhibits.

Kilroy filed objections to the referee’s recommendation, but failed to provide a transcript or affidavit in support of his' position. Thus, at the time the trial court considered the recommendation of the referee, the only evidence before the court was that contained in the report.

Civ.R. 53(E)(6) states:

“ * * * The court may adopt any finding of fact in the referee’s report without further consideration unless the party who objects to that finding supports that objection with a copy of all relevant portions of the transcript from the referee’s hearing or an affidavit about evidence submitted to the referee if no transcript is available.”

The issue presented then becomes whether Kilroy’s failure to present evidence to the trial judge precluded appellate review.

In Normandy Place Assoc. v. Beyer (1982), 2 Ohio St.3d 102, 2 OBR 653, 443 N.E.2d 161, the court stated in its syllabus:

“The filing of a Civ.R. 53(E) objection to a referee’s report is not a prerequisite for appellate review of a finding or recommendation made by a referee and adopted by a trial court.”

Further, in Proctor v. Proctor (1988), 48 Ohio App.3d 55, 548 N.E.2d 287, the court there held that the mere failure to submit a transcript or affidavit in support of an otherwise properly made objection to a referee report does not preclude appellate review but in the absence of either, the review is limited to whether the trial court abused its discretion.

Finally, in Purpura v. Purpura (1986), 33 Ohio App.3d 237, 515 N.E.2d 27, our court in considering a similar issue, stated at 239, 515 N.E.2d at 29:

“Although the wife objected to the referee’s report, she provided no transcript of the referee’s hearing or other evidentiary material to contest the referee’s findings. Consequently, the trial court could properly adopt the referee’s factual findings without further consideration. Civ.R. 53(E)(6).”

Our review in this case then concerns the propriety of the trial court in approving the recommendation of the referee, which was supported by twenty-five exhibits, where the appellant has objected but not filed a transcript or affidavit to contravene the recommendation. In accordance with Purpura and Civ.R. 53, we believe that in this instance, where the trial court had the opportunity to review the exhibits, the court did not err or abuse its discretion in approving the recommendation despite the lack of specific factual finding by the referee. Accordingly, this assignment of error is overruled.

Assignments of error two, three, and four share a basis in law and fact and therefore will be treated together. They state as follows:

ii

“Pursuant to the doctrine of res judicata, the trial court erred in apparently awarding damages for a cracked window since the landlord had waived damages in a previous settlement adopted by the court between the parties.”

III

“If the trial court awarded damages for the cracked window, the trial court erred because the landlord is liable for such damage by the terms of the written lease.”

IV

“The trial court erred in refusing the plaintiff tenant the opportunity to present evidence against the landlord’s counterclaim after the landlord rested his case-in-chief.”

Kilroy believes that the lower court judgment includes damages for a cracked window, which he maintains is res judicata because it was decided in the first case, and further complains that the trial court denied him the opportunity to present evidence in response to Lakeshore’s counterclaim for damages.

Lakeshore urges affirmance of the trial court’s judgment, asserting that res judicata does not apply in this case and that Kilroy failed to preserve these objections for appeal.

The issue presented by these assignments of error concerns whether the trial court erred when it approved and confirmed the report of the referee.

Our review of these alleged errors is governed the Ohio Rules of Appellate Procedure, which place the burden upon an appellant to evidence error on appeal. Specifically, App.R. 9(B) states:

“If there is no officially appointed reporter, App.R. 9(C) or 9(D) may be utilized. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, the appellant shall include in the record a transcript of all evidence relevant to the findings or conclusion. * * *” See, also, Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 19, 520 N.E.2d 564, 565:

“Upon appeal of an adverse judgment, it is the duty of the appellant to ensure that the record, or whatever portions thereof are necessary for the determination of the appeal, are filed with the court in which he seeks review.”

Further, we are mindful of Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 15 O.O.3d 218, 219-220, 400 N.E.2d 384, 385, where the court stated:

“The duty to provide a transcript for appellate review falls upon the appellant. This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d 162 [7 O.O.3d 243, 372 N.E.2d 1355]. This principle is recognized in App.R. 9(B), which provides, in part, that ‘ * * * the appellant shall in writing order from the reporter a complete transcript or a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record * * When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume validity of the lower court’s proceedings, and affirm.”

In this case, Kilroy failed to provide our court with a verbatim transcript of the proceedings below or to comply with App.R. 9(C) or 9(D), which allow for a statement of evidence or proceedings when a verbatim transcript is not available.

Since it is the duty of an appellant to ensure that the record is filed with the court in which he seeks review and since Kilroy has failed in this regard, he cannot prevail on these assignments of error.

Accordingly, we are constrained to follow the directives of App.R. 12(A)(2), which states:

“The court may disregard an assignment of error presented for review if the party raising if fails to identify in the record the error on which the assignment of error is based * *

Here, we have no independent basis upon which to review these claims. In accordance with App.R. 12, we shall disregard these assignments of error.

V

Kilroy’s fifth assignment of error states:

“The court below erred in referring the case to a referee. The referee erred in failing to record the proceedings.”

Kilroy complains the trial court denied him the right to a jury trial by referring this matter to a referee. In support of his position, he cites Civ.R. 53, which provides that a court may refer a case to a referee where the parties are not entitled to a trial by jury or the parties mutually agree. Kilroy complains that he did not give up his right and that he is entitled to a jury trial in this instance.

Lakeshore contends that the trial court did not err in referring this matter to a referee because Kilroy waived his right to jury trial by not requesting a jury at the time he filed his complaint as required by Civ.R. 38.

The issue presented for our review is whether the trial court committed reversible error in referring the case to a referee if Kilroy was entitled to a trial by jury in this matter.

While Kilroy claims entitlement to trial by jury, as a pro se litigant he is presumed to have knowledge of the law and of correct legal procedure and is held to the same standard as all other litigants. He cannot expect or demand special treatment from the judge, who is to sit as impartial arbiter.

In this instance, Civ.R. 38(B) provides:

“Demand. Any party may demand a trial by jury on any issue triable of right by a jury by serving upon the other parties a demand therefor at any time after the commencement of the action and not later than fourteen days after the service of the last pleading directed to such issue. Such a demand shall be in writing and may be indorsed upon the pleading. * * *”

And Civ.R. 38(D) provides:

“Waiver. The failure of a party to serve a 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.

The record before us reflects that Kilroy failed to demand a jury and therefore did not comply with the directives of Civ.R. 38. Hence, by application of Civ.R. 38, the trial court properly deemed that right waived.

Finally, Kilroy complains that the referee should have recorded the proceedings conducted in this instance.

In White v. White (1977), 50 Ohio App.2d 263, 263, 4 O.O.3d 225, 225, 362 N.E.2d 1013, 1015, our court stated that Civ.R. 53(C) places an affirmative duty upon a party who wants a court reporter to record the evidence at a hearing before a referee to file a written motion requesting a court reporter to make a record of the evidence.

The record before us reflects that Kilroy failed to affirmatively request a record as required by Civ.R. 53(C) and, hence, he waived his right in this regard.

Accordingly, we find no merit to Kilroy’s arguments in this assignment of error and therefore find that the trial court did not err in having the matter heard by a referee or by not recording the proceedings. Hence, this assigned error is overruled.

In conformity with the analysis herein, the judgment of the trial court is affirmed.

Judgment affirmed.

Dyke, P.J., concurs. McMonagle, J., concurs in part and dissents in part.