[Cite as Krista v. Thompson, 2025-Ohio-5566.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
CRIS KRISTA,1 : : Plaintiff-Appellant, : Case No. 25CA1 : v. : : TERRY THOMPSON, : DECISION AND JUDGMENT : ENTRY Defendant-Appellee. : : RELEASED 12/10/25 _____________________________________________________________ APPEARANCES:
Amanda R. Morris, Morris Law Firm, LLC, Lancaster, Ohio for Plaintiff-Appellant.
John Lavelle, Lavelle & Rittenhouse, Athens, Ohio for Defendants-Appellees.2
Hess, J.
{¶1} Cris Krista appeals the judgment following a bench trial of the Athens
County Court of Common Pleas dismissing Krista’s claims due to failure of proof
and granting a declaratory judgment to Thompson finding that he is not in breach
of contract and that Krista is not entitled to any further relief. Krista raises four
assignments of error: (1) the trial court erred in allowing his counsel to withdraw
the morning of trial; (2) the trial court erred by dismissing Krista’s claims without
proper notice; (3) the trial court lacked jurisdiction to render a declaratory judgment
because certain individuals were not joined as parties; and (4) the trial court’s
judgment granting Thompson’s declaratory judgment lacked sufficient evidence.
1 Appellant’s name has appeared in various forms throughout the record as Hisham Cris Kresta,
Hesham Krista, Cris D. Crista, and Chris Crista. We use the name and spelling that appears on the trial court’s entry. 2 Karen Thompson was added to the lawsuit by amended complaint and is represented along
with her husband in this appeal. Hocking App. No. 25CA1 2
{¶2} The Thompsons argue that Krista’s argument concerning his trial
counsel’s withdrawal ignores the fact that Krista’s trial counsel appeared for trial
as scheduled that morning and that it was Krista himself who failed to show up or
bring any documents to support his claims. Krista’s trial counsel’s statements in
his motion to withdraw on the morning of trial showed that Krista had a history of
failing to respond to, provide documents to, or meet with his counsel for several
months before the trial date. The Thompsons also argue that the trial court
complied with any notice requirements under Civ.R. 41(B) because Krista’s trial
counsel and the trial court discussed at the start of the trial the ramifications of
Krista’s failure to show up that morning and the trial court provided adequate notice
to Krista’s trial counsel that Krista’s failure to appear and present evidence would
result in the dismissal of his claims. Next, the Thompsons argue that Krista’s
contentions that the trial court lacked jurisdiction to grant a declaratory judgment
to the Thompsons is based on a false premise – he incorrectly believes that Karen
Thompson was not made a party when, in fact, she was. The Thompsons contend
that the record shows that the trial court granted Krista’s motion to file an amended
complaint to add Karen Thompson, modified the case management schedule to
reflect this at Krista’s request, and that Karen Thompson subsequently appeared
and filed an answer. Finally, the Thompsons argue that Krista has waived any
evidentiary objections related to their proof of their counterclaim by failing to make
any objections during the trial.
{¶3} We find that the trial court did not abuse its discretion in allowing
Krista’s counsel to withdraw or in dismissing his claims due to his failure to present Hocking App. No. 25CA1 3
proof to support them. We also find that the trial court had jurisdiction to issue a
declaratory judgment and that the Thompsons presented sufficient evidence to
support the trial court’s judgment. We overrule Krista’s assignments of error and
affirm the trial court’s judgment.
I. FACTS AND PROCEDURAL BACKGROUND
{¶4} In November 2019, Cris Krista and Terry Thompson entered into a
real estate contract in which Krista would purchase two tracts of land in Hocking
County from Thompson for $575,000.00. Krista was to pay $1,000 in equal monthly
installments beginning December 1, 2019, with the full balance of the purchase
price due no later than December 1, 2021. For reasons the parties dispute, the full
balance was not paid by Krista on December 1, 2021. On December 9, 2021,
Thompson’s attorney sent a letter to Krista’s attorney informing Krista that
Thompson was declaring the contract “expired and of no further force or effect.”
The letter stated that Thompson was unable to extend the closing date by more
than the one-week extension previously granted to Krista on December 1, 2021.
{¶5} Eight days later, on December 17, 2021, Krista filed a complaint
against Thompson for specific performance, breach of contract, and damages.
Thompson answered and filed a counterclaim for declaratory judgment that the
contract is void by its terms because Krista failed to perform. Thompson also
included a counterclaim for slander of title, which he later voluntarily dismissed. As
the case progressed, Thompson filed a motion for partial summary judgment,
arguing that Thompson’s wife, Karen, was not a party to the lawsuit and therefore
Krista could not be granted specific performance that he transfer the deed as his Hocking App. No. 25CA1 4
wife had a dower interest that would need released. The trial court granted
Thompson’s motion.
{¶6} In response, Krista filed a motion to file an amended complaint to add
Karen Thompson to the case. Although the trial court’s entry granting Krista leave
to file an amended complaint is missing from the record, subsequent filings by both
parties indicate that the trial court issued an entry granting it. For example,
because the trial court granted his motion to file an amended complaint, Krista filed
a motion to vacate trial dates and issue a modified case management schedule
which stated, “Now comes plaintiff, by and through counsel, and moves the Court
vacate the currently scheduled trial dates following the judgment entry granting
leave to file plaintiff’s first amended complaint . . . .” (Emphasis added.) In
response, the trial court issued an entry granting that motion stating, “Upon motion
of Plaintiff, and it appearing that said motion should be granted, it is hereby
ORDERED, ADJUDGED, AND DECREED that the trial currently scheduled for
March 18, 19 and 2024, be and hereby is, vacated with a new scheduling order,
including trial dates, to be scheduled by separate order.” Shortly thereafter Karen
and Terry Thompson filed an answer and counterclaim to Krista’s first amended
complaint. Karen did not raise failure of service as a defense or contend that the
amended complaint was procedurally invalid under Civ.R. 15.
{¶7} The trial court set trial dates for the end of August 2024. However in
mid-August 2024, approximately two weeks prior to the start of trial, Krista asked
for a continuance because he was traveling out of the country to attend to family
matters. The Thompsons opposed the continuance on the grounds that the trial Hocking App. No. 25CA1 5
date had already been continued three times, was originally supposed to take
place in December 2022, and Krista was simply trying to delay a matter for which
he was never going to be willing, ready, or able to proceed. The trial court granted
the continuance and set the trial dates for January 29 through 31, 2025.
{¶8} On January 24, 2025, five days before trial was set to commence,
Krista’s trial counsel filed a motion to withdraw. In the motion, Krista’s trial counsel
explained in detail the problems he experienced communicating with, establishing
meetings with, and obtaining documents from Krista. Trial counsel explained that
he had been discussing with Krista the need for certain necessary documents
since May 2023, but Krista was never forthcoming with them. Trial counsel
scheduled a trial preparation meeting with Krista for January 9, 2025 at which
Krista was to bring the necessary documents. However, Krista moved that meeting
to January 14 and then called January 13 to move the January 14 meeting again.
Krista promised to have the documents delivered to counsel by end of day January
14, or the following morning on January 15, at the latest, with an in-person meeting
for January 22. However, Krista did not send the documents by January 15, and
by January 20 trial counsel’s attempts to reach Krista were not returned. Trial
counsel repeatedly reached out to Krista January 20, 21, and 22 but Krista did not
respond. Trial counsel learned from a business associate of Krista that he had not
returned from being out of state and would not be back in Ohio until Friday January
24, 2025. Krista’s business associate assured trial counsel that trial counsel would
receive the documents on January 22, but the documents were never sent. Finally,
with the trial date approaching, trial counsel notified Krista by text message at 8:15 Hocking App. No. 25CA1 6
a.m. on January 23, 2025, that if Krista did not contact him and send him the
necessary documents by the end of the day, trial counsel would file a request to
withdraw. Again, Krista failed to respond and neither Krista nor his business
associate provided the documents. Trial counsel informed the trial court that Krista
was informed of the trial date both by notice from the court and by numerous
conversations trial counsel had with Krista.
{¶9} On the morning of the first day of trial, Krista’s trial counsel was
present, as were Terry Thompson and the Thompsons’ attorney. The parties
waited 15 minutes and then went on the record to state that, while Krista’s trial
counsel was present, Krista was not. The trial court asked Krista’s trial counsel if
he had any indication of Krista’s whereabouts. Trial counsel explained that he had
emailed Krista a copy of the motion to withdraw on January 23 and received no
response from Krista and no communications from him since. Trial counsel had
spoken to Krista’s business associate the day before (January 28) and was told
“that she spoke to Cris’s [Krista] sister and Cris’s sister speculated that Cris didn’t
intend to return to Ohio for this. And when I say return to Ohio, it was news to me
that he was not in Ohio over the last couple of weeks.”
{¶10} The trial court asked Krista’s trial counsel to address the motion to
withdraw and trial counsel stated that a key element of proof that he explained to
Krista would be needed is evidence that Krista “was ready, willing and able to
consummate the transaction at the time that it should have closed.” Trial counsel
explained repeatedly to Krista over the last couple of years during the pendency
of the lawsuit that he needed proof that Krista had the funds to close. Krista “first Hocking App. No. 25CA1 7
represented that he was going to get the documents to me and then stopped
responding to me.” Trial counsel explained that he interpreted Krista’s failure to
communicate “to mean that he didn’t intend to meaningfully participate in these
proceedings, which is why I filed a motion for leave to withdraw. He was on notice
that I was going to do that. I served him with a copy of that. He’s obviously not here
today and I can’t proceed without him, so I’d ask the Court to grant the motion.
Obviously, his failure to appear would - - would justify the Court to take appropriate
action as to his claims.”
{¶11} After trial counsel acknowledged that his clients “failure to appear
would justify the Court to take appropriate action to his claims” (i.e., dismiss them
for failure to prosecute), the trial court likewise acknowledged this outcome, “[Y]ou
outlined what inevitably will be happening with this case if you withdraw. Are you -
- it is your intention, because your client is not here to help you navigate this, to
withdraw today. Is that your request for today as well?” To which trial counsel
responded affirmatively. The trial court granted the motion to withdraw, “The Court
will grant your request to withdraw as counsel for Mr. Krista citing lack of
communication and the fact that your client himself has failed to appear, therefore
not being able to assist you in prosecution of this claim.”
{¶12} The Thompsons proceeded on their counterclaim for declaratory
judgment that the real estate contract was not enforceable. The trial court stated
that as far as that claim goes, “I would just need a prima facie case, a little bit of
evidence to make a finding. So I’ll allow you to do that at this point in time.” Hocking App. No. 25CA1 8
{¶13} Thompsons’ trial counsel submitted 11 trial exhibits: the real estate
contract (which was also attached to Krista’s complaint), Thompson’s payment
ledger, a copy of a check received by Thompson and tender by Krista’s business
associate, text messages between Thompson and Krista, Thompson’s calendar
entries of meetings between Thompson and Krista, a transcribed recording of one
of their meetings, emails between Thompson and Krista’s attorneys regarding the
tentative December 2021 closing, the December 9, 2021 letter from Thompson’s
attorney deeming the contract of no further force and effect, a copy of Krista’s Ohio
identification card, and the real estate deed to the property.
{¶14} Terry Thompson took the stand and testified that what his attorney
had stated while explaining the various trial exhibits was true and was also his
testimony about what had transpired. Thompson testified that Krista never
contacted Thomspon with a location for the closing and never presented any funds
for the transaction even though Krista told Thompson he was going to pay cash
for the property. Thompson testified that Krista asked Thompson to go overseas
with him and bring back the cash in a bag but Thomspon was not willing to travel
to Europe and return with a bag filled with “$ .5 million in cash.” Thompson testified
that Krista never showed him any proof that Krista had the money to close on the
deal, nor did he ever explain to Thompson where he was going to get the funds.
Thompson then testified that the 11 trial exhibits were true and accurate copies of
the originals. Thompson further testified that he extended the closing date once
from December 1, 2021 to December 8, 2021 and that there was no closing on
either date and no further verbal or written extensions given by him to Krista. Hocking App. No. 25CA1 9
{¶15} Travis Thompson testified that he was Terry Thompson’s son and he
accompanied his father to a meeting with Krista in November 2021 as the closing
date approached and during that meeting Terry Thompson repeatedly reminded
Krista that the December 1, 2021 closing date was coming up and that everything
needed to be done by then in accordance with the contract. Travis testified that
Krista assured them that there “shouldn’t be a problem. No problem. Nothing to
worry about. Everything was going to be taken care of.” Travis testified that he was
never aware that any closing ever occurred. Travis testified that his father told
Krista that Thompson might do the transaction as a “1031 situation” but that it was
nothing Krista needed to worry about on his end. Travis testified that Krista never
responded or presented the funds and they heard no more from him until the
lawsuit. Travis testified that his father incurred legal expenses because of the
breach in an amount in excess of $24,000.
{¶16} The trial court dismissed Krista’s claims “due to failure of proof.” The
court found that Krista failed to fulfill the conditions by failing to tender the balance
of the purchase price as timely extended, declared that Terry Thompson was not
in breach of the contract, and that Krista was not entitled to any further relief. The
trial court further stated that all payments made by Krista prior to his breach were
the exclusive property of Terry Thompson. By separate entry, the trial court
granted Krista’s trial counsel’s motion to withdraw.
II. ASSIGNMENTS OF ERROR
{¶17} Krista raises the following assignments of error:
1. The Trial Court erred in allowing Counsel to withdraw the morning of trial without inquiring as to whether Plaintiff-Appellant Hocking App. No. 25CA1 10
would be prejudiced by the withdraw and without allowing Plaintiff- Appellant to respond.
2. The Trial Court erred by dismissing Plaintiff-Appellant’s complaint without the proper notice as required by Ohio Civil Rule 41.
3. The Trial Court erred in determining that there was subject matter jurisdiction to render a declaratory judgment.
4. The Trial Court erred in determining that there was competent, credible, and sufficient evidence to issue a declaratory judgment, or otherwise decide the case on the merits.
III. LEGAL ANALYSIS
A. Withdrawal of Counsel
{¶18} Krista contends that the trial court erred in allowing his counsel to
withdraw the morning of trial without taking any action to ensure that Krista would
not be prejudiced by the withdrawal and without allowing Krista to respond.
1. Standard of Review
{¶19} We review a trial court's decision on a motion to withdraw as counsel
under the abuse of discretion standard. State v. Miller, 2001-Ohio-2635, * 3 (4th
Dist.). “Accordingly, we will not reverse the decision of the trial court unless it is
arbitrary, unreasonable, or unconscionable.” Id.; Ark Advanced Remediation, LLC
v. Watson, 2024-Ohio-2874, ¶ 21 (4th Dist.).
2. Legal Analysis
{¶20} Krista’s argument that he was not given an opportunity to respond to
his counsel’s motion to withdraw and was prejudiced by counsel doing so ignores
the salient fact that it was Krista who did not show up that morning for trial and who
ceased all meaningful communications with his counsel. The cases Krista cites are Hocking App. No. 25CA1 11
distinguishable on that basis. Citibank, N.A. v. Katz, 2013-Ohio-1041, ¶ 35 (8th
Dist.) (Katz was present at the hearing when counsel moved to withdraw); Bennett
v. Bennett, 86 Ohio App.3d 343, 346 (8th Dist. 1993) (Bennett was present at the
hearing and was required to represent himself); Wilson v. Wilson, 2003-Ohio-4474,
¶ 3 (3d Dist.) (Cassie Wilson appeared for trial and was required to represent
herself).
{¶21} Here trial counsel gave a full and detailed explanation about the
circumstances under which he had no option but to withdraw and stated on the
record that he provided a copy of the motion to Krista six days earlier and had
heard nothing back from Krista. Krista did not respond to the motion prior to trial
and he did not appear at trial to oppose it or seek a continuance. The trial court
engaged in a meaningful colloquy with trial counsel and trial counsel discussed the
ramifications to Krista’s case by Krista’s failure to appear, to communicate, and to
provide counsel any documents or testimonial evidence to prove Krista’s claims.
Krista cannot show how the trial court’s grant of his counsel’s motion to withdraw
could have possibly resulted in any prejudice. It was Krista who had failed to
appear at trial. Had the trial court denied the motion, the outcome would have been
the same – without Krista present, trial counsel would have sat at counsel table
with no evidence or witnesses to prosecute Krista’s claims. Counsel’s presence or
absence made no impact on the outcome on the trial therefore the withdrawal did
not prejudice Krista.
{¶22} We find no support in the record for Krista’s assertion that he was
prejudiced because of his counsel's withdrawal or that he was deprived of an Hocking App. No. 25CA1 12
opportunity to respond. Accordingly, the trial court did not abuse its discretion in
granting Krista's counsel's motion to withdraw. We overrule Krista's first
assignment of error.
B. The Dismissal of Krista’s Claims
{¶23} Krista contends that the trial court could not dismiss his claims due
to his failure to present proof in support of them without giving him notice under
Civ.R. 41(B)(1).
{¶24} The decision to dismiss a complaint for failure to prosecute is within
the sound discretion of the trial court, and an appellate court's review of such
a dismissal is confined solely to the question of whether the trial court abused its
discretion. Pembaur v. Leis, 1 Ohio St.3d 89, 91 (1982). The term “abuse of
discretion” as it applies to a dismissal with prejudice for lack of prosecution “implies
an unreasonable, arbitrary or unconscionable attitude on the part of the court in
granting such motion.” Id.; Jones v. Hartranft, 78 Ohio St.3d 368, 371 (1997).
Dismissals with prejudice are subject to heightened scrutiny. Williams v. Metro,
2020-Ohio-3515, ¶ 23 (1st Dist.).
{¶25} First, we question whether Civ.R. 41(B)(1), which governs dismissals
for failure to prosecute, is the proper framework under the record before us.
Instead, Civ.R. 41(B)(2) governs dismissals for the failure of plaintiff to present
sufficient evidence at a bench trial:
(2) Dismissal; Non-Jury Action. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the Hocking App. No. 25CA1 13
plaintiff's evidence, the defendant, . . . may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff . . . .
{¶26} Here, Krista’s trial counsel appeared for trial. When the trial
commenced, Krista’s counsel stated that he did not have evidence to support
Krista’s claims because Krista was not present to testify or to present documents.
Following Krista’s failure to present evidence on his claims, Thompsons’ counsel
moved to dismiss Krista’s claims and the trial court granted it, not “for failure to
prosecute” but “due to a failure of proof.” Therefore, it appears from the record that
the dismissal was made pursuant to Civ.R. 41(B)(2), which contains no notice
requirement, rather than Civ.R. 41(B)(1). We could overrule Krista’s assignment of
error on this basis alone.
{¶27} Nevertheless, assuming Civ.R. 41(B)(1) applies, we find that the
legal authority Krista relies upon is distinguishable. To support his argument that
the notice requirement in Civ.R. 41(B)(1) is essential, Krista cites Allstate
Insurance Co. v. Rule, 64 Ohio St.2d 67 (1980), which involved a trial at which
plaintiff, plaintiff’s counsel, several of the defendants’ counsel, and a defendant did
not appear due to “severe weather conditions in southern Ohio.” Id. at 68. The trial
court proceeded forward with the trial despite the number of absences. The
Supreme Court of Ohio held that the trial court could only order a Civ.R. 41(B)(1)
dismissal or grant a continuance, but it could not proceed to trial without the plaintiff
and plaintiff’s counsel present. Contrary to Krista’s contention, Alllstate does not
discuss the notice requirement under Civ.R. 41(B)(1), because the trial court did
not invoke that rule. Additionally, courts have distinguished Allstate on the basis Hocking App. No. 25CA1 14
that neither the plaintiff nor his counsel was present for trial in Allstate. See Nance
v. Nance, 1996 WL 104741, (Mar. 6, 1996 4th Dist.) (Allstate is distinguishable
from cases where appellant’s counsel attended the trial); Riach v. Riach, 1989 WL
331136 (Mar. 29, 1989 2d Dist.) (Allstate not applicable where appellant’s counsel
attended the hearing).
{¶28} Additionally, Civ.R. 41(B)(1) requires that the trial court provide
notice “to the plaintiff’s counsel” prior to dismissing the claims for failure to
prosecute.
Generally, notice is a prerequisite to dismissal for failure to prosecute under Civ.R. 41(B)(1). Hence, “[i]t is error for the trial court to dismiss plaintiff's case without notice for failure to prosecute when plaintiff and his counsel fail to appear for trial on the assigned trial date * * *.” The purpose of notice is to “provide the party in default an opportunity to explain the default or to correct it, or to explain why the case should not be dismissed with prejudice.” Notice allows the dismissed party to explain the circumstances causing his or her nonappearance. (Citations omitted.) (Emphasis added.)
Logsdon v. Nichols, 72 Ohio St.3d 124, 128 (1995).
{¶29} Based on the discussion between Krista’s counsel and the trial court,
we find that the trial court provided Krista’s counsel with sufficient notice that it
would dismiss Krista’s claims and Krista’s counsel was given an opportunity to and
did explain the circumstances surrounding Krista’s nonappearance. Indeed,
Krista’s counsel was aware that such an outcome would be likely when he candidly
acknowledged, “Obviously, his failure to appear would - - would justify the Court to
take appropriate action as to his claims.” It would not have materially altered the
outcome of the case had the trial court mechanically recited the notice provision at
the conclusion of their colloquy. Hocking App. No. 25CA1 15
{¶30} We find no support in the record for Krista’s assertion that the trial
court erred in dismissing his claims without adequate notice. Thus, assuming the
dismissal was made pursuant to Civ.R. 41(B)(1) rather than (B)(2), the trial court
gave adequate notice and did not abuse its discretion in dismissing the Krista's
claims. We overrule Krista's second assignment of error.
C. Trial Court’s Jurisdiction to Render a Declaratory Judgment
{¶31} Krista contends that the trial court could not have granted the
Thompsons declaratory relief because it is not clear whether all necessary parties
were named. Krista argues that he is not sure he was granted permission to file
the amended complaint to make Karen Thompson a party, nor is he sure whether
he properly served Karen Thompson with it. If Karen Thompson was not a party,
then Krista argues that the judgment is void.
{¶32} We summarily reject Krista’s contention because we find that he was
granted permission to file the amended complaint, he filed it, and Karen Thompson
answered it without raising a failure of service defense. The trial court’s entry
granting Krista’s motion to file an amended complaint appears to have been
inadvertently omitted from the record. Based on the other relevant filings on the
docket by the parties and the trial court’s subsequent orders, it is undisputed that
the trial court granted the motion. Thus, we find that Karen Thompson was made
a party to the action.
{¶33} Moreover, even if we assume that the amended complaint was
improperly filed or deficient in service, this would be an error Krista created. Under
the invited-error doctrine, a party may not take advantage of an error that he Hocking App. No. 25CA1 16
himself invited or induced the trial court to make. In Ctr. Ridge Ganley, Inc. v. Stinn,
31 Ohio St.3d 310 (1987).
{¶34} We overrule Krista’s third assignment of error.
D. The Sufficiency of the Evidence for the Declaratory Judgment
{¶35} Krista contends that there was not sufficient evidence for the trial
court’s finding that Thompson was not in breach of the contract and that Krista is
not entitled to any further relief. Specifically, he argues that there was not sufficient
evidence to support the trial court’s finding that Thompson was not in breach of the
contract. He also argues that the exhibits were not properly authenticated or
admitted.
{¶36} The abuse-of-discretion standard applies to the review of a trial
court's holding regarding whether a declaratory judgment action is justiciable; once
a trial court determines that a matter is appropriate for declaratory judgment, its
holdings regarding questions of law are reviewed on a de novo basis. Arnott v.
Arnott, 2012-Ohio-3208, ¶ 13.
{¶37} In reviewing Krista’s challenges to the trial court’s evidentiary
rulings:
Decisions involving the admissibility of evidence are reviewed under an abuse-of-discretion standard of review. Thus, an appellate court will not disturb a trial court's ruling regarding the admissibility of evidence absent a clear showing of an abuse of discretion with attendant material prejudice to defendant. When, however, an appellant alleges that a trial court's evidentiary ruling was “ ‘based on an erroneous standard or a misconstruction of the law,’ ” an appellate court reviews the trial court's evidentiary ruling using a de novo standard of review. (Citations omitted.) Hocking App. No. 25CA1 17
State v. Wright, 2017-Ohio-9041, ¶ 24-25 (4th Dist.).
{¶38} “To prove a breach of contract claim, a plaintiff generally must show
the existence of a contract, performance by the plaintiff, a breach by the defendant,
and damage or loss to the plaintiff.” Alexander Local School Dist. Bd. of Education
v. Village of Albany, 2017-Ohio-8704, ¶ 28 (4th Dist.), citing McCamon–Hunt Ins.
Agency, Inc. v. Med. Mut. Of Ohio, 2003-Ohio-1221, ¶ 10 (7th Dist.). We find the
Thompsons presented sufficient evidence for the trial court to issue a declaratory
judgment that Terry Thompson was not in breach of the real estate contract. The
existence and terms of the contract were not in dispute and a copy was attached
to Krista’s complaint. Thompson testified that Krista did not perform his duties to
set up a closing date for the real estate transfer or tender the funds for the
transaction. Because Krista did not set up a closing date or tender the funds,
Thompson’s duty to transfer the deed was never triggered. Thompson’s son
testified that his father suffered damages of at least $24,000 in legal fees
associated with Krista’s breach. Based on our review of the evidence presented at
trial, we find that the Thompsons presented sufficient evidence to establish that
Terry Thompson was not in breach of the contract. The trial court did not err in
issuing the declaratory judgment.
{¶39} As for Krista’s contention that the exhibits were not properly
authenticated, we find that he has waived this argument by failing to raise it at the
trial court level. Courts have long held “the fundamental rule is that an appellate
court will not consider any error which could have been brought to the trial court's Hocking App. No. 25CA1 18
attention, and hence avoided or otherwise corrected.” Schade v. Carnegie Body
Co., 70 Ohio St.2d 207, 210 (1982).
{¶40} Moreover, we find no basis to apply the plain error standard of review
to this civil action. A “plain error” is obvious and prejudicial although neither
objected to nor affirmatively waived which, if permitted, would have a material
adverse effect on the character and public confidence in judicial proceedings. Id.
at 209. “[I]n appeals of civil cases, the plain error doctrine is not favored and may
be applied only in the extremely rare case involving exceptional circumstances
where error, to which no objection was made at the trial court, seriously affects the
basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.” Goldfuss v.
Davidson, 79 Ohio St.3d 116, 122–23 (1997).
{¶41} The real estate contact was attached to Krista’s complaint and its
authenticity undisputed. The calendar, payment ledger, and text messages were
all from the Thompsons’ personal records. The trial court asked Thompsons’
counsel to verify with Thompson that all the exhibits were true and accurate to the
best of his knowledge and Thompson reviewed them all and testified affirmatively
that they were. The trial court was satisfied with the authenticity of the exhibits and
admitted them without objection. “The authentication requirement contemplated by
Evid. R. 901(A) invokes a very low threshold
standard, requiring only sufficient foundational evidence for the trier of fact to
conclude that the item is what the proponent claims it to be.” State v. Stephen, Hocking App. No. 25CA1 19
2025-Ohio-693, ¶ 28 (5th Dist.), citing Weisbecker v. Weisbecker, 2006-Ohio-
5840, ¶ 22 (12th Dist.).
{¶42} We overrule Krista’s fourth assignment of error.
IV. CONCLUSION
{¶43} We overrule appellant’s assignments of error and affirm the
judgment of the trial court.
JUDGMENT AFFIRMED Hocking App. No. 25CA1 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Costs to be paid by appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County 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.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court,
__________________________________ Michael D. Hess Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.