Merrett v. Lowe

2011 Ohio 1413

• Court: Ohio Court of Appeals
• Decided: March 25, 2011
• Docket: 23747
• Status: Published

Opinion

[Cite as Merrett v. Lowe, 2011-Ohio-1413.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

MICHELLE MERRETT :

Plaintiff-Appellant : C.A. CASE NO. 23747

vs. : T.C. CASE NO. 09CVI802

CARRIE LOWE, et al. : (Civil Appeal from County Court) Defendant-Appellees :

. . . . . . . . .

O P I N I O N

Rendered on the 25th day of March, 2011.

Michelle Merrett, 6413 Zoellners Place, Hamilton, OH 45011 Plaintiff-Appellant, Pro Se

Carrie Lowe, 6221 Hemingway Road, Huber Heights, OH 45424 Defendant-Appellee, Pro Se

GRADY, P.J.:

{¶ 1} On July 9, 2009, Plaintiff, Michelle Merrett, commenced

a small claims action against Defendants, Carrie Lowe and Jevan

Lowe, seeking a judgment in the total amount of $1,422.72 for unpaid

rent and a water bill due and owing by the Lowes pursuant to their

lease agreement with Merrett. (Dkt. 1).

{¶ 2} On October 13, 2009, the trial court entered a final 2

judgment (Dkt. 14). The judgment states that the matter was heard

by the court on August 17, 2009, and that after due consideration

the court finds Plaintiffs’ claim not well taken, and therefore

the court enters judgment for the Lowes on Merrett’s claim for

relief.

{¶ 3} Merritt filed a timely notice of appeal from the trial

court’s final judgment of October 13, 2009 (Dkt. 15). On that

same date, Merrett asked the court to “file the transcript of the

proceedings and all exhibits from the trial held herein on August

17, 2009.” (Dkt. 16).

{¶ 4} App.R. 9(B) provides that the appellant shall order a

complete transcript of the proceedings which the appellant

considers necessary for the appeal. App.R. 9(A) provides that

a video recording of the proceedings constitute the transcript

of proceedings, and need not be transcribed into written form by

the court. That rule further states: “When the transcript of the

proceedings is in the video(tape) medium, counsel shall type or

print those portions of such transcript necessary for the court

to determine the questions presented, certify their accuracy, and

append such copy of the portions of the transcript to their briefs.”

{¶ 5} On February 5, 2010, the trial court filed a video

transcript of the trial proceedings. No printed or written

transcription of the video transcript has been filed. 3

{¶ 6} Merrett argues in a “Show Cause Motion For New Trial”

she filed on July 16, 2010, that the video transcript the court

filed “was edited, thereby preventing Appellant from providing

an accurate written transcript of the trial proceeding.” When

no report of the evidence was made or no transcript is available,

App.R. 9(C) authorizes a party to serve a statement of evidence

and proceedings on the adverse party, and for the court to settle

any differences between the parties on the matter and file the

statement for the record of the appeal. There is no indication

that Merrett did so. Merrett’s motion is therefore not well-taken,

and is overruled.

{¶ 7} Plaintiff-Appellant Merrett argues in her brief that

the trial court erred by not considering evidence Merrett

introduced at the August 17, 2009 trial, and by not allowing Merrett

to rebut arguments made by the Lowes at the trial.

{¶ 8} Merrett’s contentions challenge the final judgment the

trial court entered on its findings of fact. In the absence of

the written or printed transcription that App.R. 9(A) requires,

the trial court’s findings are conclusive as to facts of the case.

Lumberman’s Mutual Insurance Co. v. Noble Trucking Co. (1961),

115 Ohio App. 384. In that event, the presumption of the regularity

of the proceedings and the validity of the judgment of the trial

court prevails, and the reviewing court may not challenge the 4

findings of the trial court. Beach v. Sweeney (1958), 167 Ohio

St. 477.

{¶ 9} Merrett also argues that the trial court erred in not

considering additional bona fide evidence documenting Merrett’s

claim for relief. Merrett does not identify what that evidence

is. We note that on October 6, 2009, the clerk returned to Merrett

an envelope containing documents and photographs that Merrett had

filed on August 28, 2009. The letter from the clerk explains that

“[t]he court cannot consider this documentation as evidence after

the Trial has taken place. The trial was held on August 17, 2009.”

(Dkt. 17).

{¶ 10} A party must offer such evidence as the party wishes

the court to consider at the trial of the case. If additional

evidence is to thereafter be submitted, the party must obtain leave

of court to do that. It appears that Merrett did not obtain leave

of court to offer additional evidence for the record that she asked

the court to consider after the trial had concluded. We find no

abuse of discretion in the trial court’s refusal to consider the

additional evidence Merrett filed on August 28, 2009, following

the trial that was held on August 17, 2009.

{¶ 11} Merrett’s assignments of error are overruled. The

judgment of the trial court will be affirmed. 5

FAIN, J. And HALL, J., concur.

Copies mailed to:

Michelle Merrett Carrie Lowe Hon. Adele M. Riley