[Cite as Petrovich v. Auto Repair, Inc., 2017-Ohio-8731.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105216
ALEKSANDR PETROVICH PLAINTIFF-APPELLANT
vs.
AUTO REPAIR, INC. DEFENDANT-APPELLEE
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Berea Municipal Court Case No. 2016 CVI 01650
BEFORE: Keough, A.J., Celebrezze, J., and Jones, J.
RELEASED AND JOURNALIZED: November 30, 2017 APPELLANT
Aleksandr Petrovich, pro se 6100 Laurent Drive, Apt. 422 Parma, Ohio 44129
ATTORNEYS FOR APPELLEE
Melanie R. Irvin Scott R. Heasley Colleen A. Mountcastle Gallagher Sharp Bulkley Building, Sixth Floor 1501 Euclid Avenue Cleveland, Ohio 44115 KATHLEEN ANN KEOUGH, A.J.:
{¶1} Plaintiff-appellant, Aleksandr Petrovich (“Petrovich”), appeals from the
municipal court’s judgment adopting the magistrate’s decision finding that Petrovich
failed to prove the allegations of his complaint by a preponderance of the evidence, and
entering judgment for defendant-appellee, Auto Repair, Inc. (“Auto Repair”). We
reverse and remand.
I. Background and Procedural History
{¶2} In August 2016, Petrovich filed a complaint against Auto Repair in the
small claims division of the municipal court. Petrovich alleged that on June 13, 2016, as
he was waiting in a left turn lane, one of Auto Repair’s towing trucks drove by and hit the
left rear view mirror on his car. Petrovich sought money damages for the property
damage to his vehicle, and reimbursement for rental car expenses and lost wages incurred
while he got his car fixed. On his complaint, Petrovich listed his address as 6100
Laurent Drive, #422 in Parma, Ohio.
{¶3} On October 5, 2016, the magistrate held a hearing at which the parties gave
testimony and presented evidence. Following the hearing, the magistrate entered a
decision finding that Petrovich “failed to prove by a preponderance of the evidence the
allegations in the complaint.” The decision noted that its opinion was based on the
“testimony and exhibits” but made no specific findings of fact.
{¶4} The record reflects that the municipal court sent a copy of the magistrate’s
decision to Petrovich at 3100 Laurent Drive, #422 in Parma. The envelope was returned to the municipal court on October 14, 2016, with a notation “No Such Number, Unable to
Forward.” The municipal court entered the return on its docket but apparently did
nothing to ensure that Petrovich received a copy of the magistrate’s decision. On
October 26, 2016, the trial court entered judgment that “no objection having been filed by
either party, the magistrate’s decision is hereby adopted as the order of the court.”
{¶5} On November 28, 2016, Petrovich filed a notice of appeal of the trial
court’s decision. The municipal court subsequently advised Petrovich that it was unable
to process his request for a DVD of the court hearing before the magistrate because “due
to technical problems, the hearings that took place on October 5, 2016 were not
recorded.” This court subsequently granted Petrovich’s motion to change the praecipe
from an App.R. 9(B) record (which requires a transcript of the trial court proceedings) to
an App.R. 9(C) statement of the evidence or proceedings.
{¶6} On February 7, 2017, Petrovich filed a statement of evidence to be settled
and approved by the municipal court pursuant to App.R. 9(C). Auto Repair filed
objections to the statement of evidence. On March 8, 2017, the magistrate entered a
decision finding that “appellant’s statement of evidence is not approved” because
appellant’s “attempt to transcribe the ‘actual testimony’ and what went on at the trial is
not correct.” The trial court subsequently issued a judgment affirming the magistrate’s
decision. This court then struck Petrovich’s App.R. 9(C) statement of the evidence
because it was not settled and approved by the trial court as required by App.R. 9(C).
II. Law and Analysis {¶7} In his first assignment of error, Petrovich contends that the trial court erred
in granting judgment to Auto Repair because he was denied an opportunity to object to
the magistrate’s decision. In his second assignment of error, Petrovich contends that the
trial court erred in finding that he failed to prove the allegations of his complaint by a
preponderance of the evidence.
{¶8} Civ.R. 53 governs proceedings before a magistrate and the trial court’s duties
in accepting or rejecting a magistrate’s rulings. A party has 14 days from the issuance of
a magistrate’s decision to file objections with the trial judge; the objections are to be
specific and state with particularity the grounds of objection. Civ.R. 53(D)(3)(b)(ii).
The party who objects to the magistrate’s factual findings has the duty to provide a
transcript of the evidence relevant to the findings to the trial court, or an affidavit of that
evidence. Civ.R. 53(D)(3)(b)(iii). Pursuant to Civ.R. 53(D)(3)(b)(iv), except for a
claim of plain error, a party that fails to object to the magistrate’s decision may not assign
as error on appeal the trial court’s adoption of any of the magistrate’s factual findings or
legal conclusions.
{¶9} Auto Repair argues that because Petrovich did not object to the magistrate’s
decision, he has waived all arguments on appeal except for plain error. It argues further
that because Petrovich is challenging the magistrate’s factual findings but did not file a
transcript or an affidavit of the evidence, this court should overrule Petrovich’s
assignments of error and affirm the trial court.
{¶10} The record clearly reflects, however, that Petrovich never received the magistrate’s decision. Although the municipal court sent the decision to Petrovich, it
mailed it to him at an address other than the one he gave the municipal court when he
filed his complaint. The record also reflects that as of October 14, 2016, the municipal
court was aware that Petrovich had not received the magistrate’s decision, but did nothing
to rectify its error and ensure that he received the decision in order to make timely
objections.
{¶11} Because Petrovich never objected to the magistrate’s decision, he never filed
in the trial court a transcript or an affidavit of the evidence that this court could review in
resolving his assignments of error. Petrovich attempted to remedy the lack of a transcript
by filing an App.R. 9(C) statement of the evidence and proceedings.
{¶12} An App.R. 9(C) statement was not appropriate, however, because Petrovich
never objected to the magistrate’s decision. Where a party fails to follow the procedures
set forth in Civ.R. 53(D)(3)(b)(iii) for objecting to a magistrate’s factual findings by
providing a transcript or affidavit of the evidence to the trial court, it may not later
provide an App.R. 9(C) statement to the appellate court in lieu of the transcript or
affidavit of evidence. This is because an appellate court cannot consider evidence that
the trial court did not have when it made its decision. State ex rel. Pallone v. Ohio Court
of Claims, 143 Ohio St.3d 493, 2015-Ohio-2003, 39 N.E.2d 1220, ¶ 11, citing Herbert v.
Herbert, 12th Dist. Butler No. CA2011-07-132, 2012-Ohio-2147, ¶ 13-15.1
Although we acknowledge that an App.R. 9(C) statement of evidence was not the 1
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[Cite as Petrovich v. Auto Repair, Inc., 2017-Ohio-8731.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105216
ALEKSANDR PETROVICH PLAINTIFF-APPELLANT
vs.
AUTO REPAIR, INC. DEFENDANT-APPELLEE
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Berea Municipal Court Case No. 2016 CVI 01650
BEFORE: Keough, A.J., Celebrezze, J., and Jones, J.
RELEASED AND JOURNALIZED: November 30, 2017 APPELLANT
Aleksandr Petrovich, pro se 6100 Laurent Drive, Apt. 422 Parma, Ohio 44129
ATTORNEYS FOR APPELLEE
Melanie R. Irvin Scott R. Heasley Colleen A. Mountcastle Gallagher Sharp Bulkley Building, Sixth Floor 1501 Euclid Avenue Cleveland, Ohio 44115 KATHLEEN ANN KEOUGH, A.J.:
{¶1} Plaintiff-appellant, Aleksandr Petrovich (“Petrovich”), appeals from the
municipal court’s judgment adopting the magistrate’s decision finding that Petrovich
failed to prove the allegations of his complaint by a preponderance of the evidence, and
entering judgment for defendant-appellee, Auto Repair, Inc. (“Auto Repair”). We
reverse and remand.
I. Background and Procedural History
{¶2} In August 2016, Petrovich filed a complaint against Auto Repair in the
small claims division of the municipal court. Petrovich alleged that on June 13, 2016, as
he was waiting in a left turn lane, one of Auto Repair’s towing trucks drove by and hit the
left rear view mirror on his car. Petrovich sought money damages for the property
damage to his vehicle, and reimbursement for rental car expenses and lost wages incurred
while he got his car fixed. On his complaint, Petrovich listed his address as 6100
Laurent Drive, #422 in Parma, Ohio.
{¶3} On October 5, 2016, the magistrate held a hearing at which the parties gave
testimony and presented evidence. Following the hearing, the magistrate entered a
decision finding that Petrovich “failed to prove by a preponderance of the evidence the
allegations in the complaint.” The decision noted that its opinion was based on the
“testimony and exhibits” but made no specific findings of fact.
{¶4} The record reflects that the municipal court sent a copy of the magistrate’s
decision to Petrovich at 3100 Laurent Drive, #422 in Parma. The envelope was returned to the municipal court on October 14, 2016, with a notation “No Such Number, Unable to
Forward.” The municipal court entered the return on its docket but apparently did
nothing to ensure that Petrovich received a copy of the magistrate’s decision. On
October 26, 2016, the trial court entered judgment that “no objection having been filed by
either party, the magistrate’s decision is hereby adopted as the order of the court.”
{¶5} On November 28, 2016, Petrovich filed a notice of appeal of the trial
court’s decision. The municipal court subsequently advised Petrovich that it was unable
to process his request for a DVD of the court hearing before the magistrate because “due
to technical problems, the hearings that took place on October 5, 2016 were not
recorded.” This court subsequently granted Petrovich’s motion to change the praecipe
from an App.R. 9(B) record (which requires a transcript of the trial court proceedings) to
an App.R. 9(C) statement of the evidence or proceedings.
{¶6} On February 7, 2017, Petrovich filed a statement of evidence to be settled
and approved by the municipal court pursuant to App.R. 9(C). Auto Repair filed
objections to the statement of evidence. On March 8, 2017, the magistrate entered a
decision finding that “appellant’s statement of evidence is not approved” because
appellant’s “attempt to transcribe the ‘actual testimony’ and what went on at the trial is
not correct.” The trial court subsequently issued a judgment affirming the magistrate’s
decision. This court then struck Petrovich’s App.R. 9(C) statement of the evidence
because it was not settled and approved by the trial court as required by App.R. 9(C).
II. Law and Analysis {¶7} In his first assignment of error, Petrovich contends that the trial court erred
in granting judgment to Auto Repair because he was denied an opportunity to object to
the magistrate’s decision. In his second assignment of error, Petrovich contends that the
trial court erred in finding that he failed to prove the allegations of his complaint by a
preponderance of the evidence.
{¶8} Civ.R. 53 governs proceedings before a magistrate and the trial court’s duties
in accepting or rejecting a magistrate’s rulings. A party has 14 days from the issuance of
a magistrate’s decision to file objections with the trial judge; the objections are to be
specific and state with particularity the grounds of objection. Civ.R. 53(D)(3)(b)(ii).
The party who objects to the magistrate’s factual findings has the duty to provide a
transcript of the evidence relevant to the findings to the trial court, or an affidavit of that
evidence. Civ.R. 53(D)(3)(b)(iii). Pursuant to Civ.R. 53(D)(3)(b)(iv), except for a
claim of plain error, a party that fails to object to the magistrate’s decision may not assign
as error on appeal the trial court’s adoption of any of the magistrate’s factual findings or
legal conclusions.
{¶9} Auto Repair argues that because Petrovich did not object to the magistrate’s
decision, he has waived all arguments on appeal except for plain error. It argues further
that because Petrovich is challenging the magistrate’s factual findings but did not file a
transcript or an affidavit of the evidence, this court should overrule Petrovich’s
assignments of error and affirm the trial court.
{¶10} The record clearly reflects, however, that Petrovich never received the magistrate’s decision. Although the municipal court sent the decision to Petrovich, it
mailed it to him at an address other than the one he gave the municipal court when he
filed his complaint. The record also reflects that as of October 14, 2016, the municipal
court was aware that Petrovich had not received the magistrate’s decision, but did nothing
to rectify its error and ensure that he received the decision in order to make timely
objections.
{¶11} Because Petrovich never objected to the magistrate’s decision, he never filed
in the trial court a transcript or an affidavit of the evidence that this court could review in
resolving his assignments of error. Petrovich attempted to remedy the lack of a transcript
by filing an App.R. 9(C) statement of the evidence and proceedings.
{¶12} An App.R. 9(C) statement was not appropriate, however, because Petrovich
never objected to the magistrate’s decision. Where a party fails to follow the procedures
set forth in Civ.R. 53(D)(3)(b)(iii) for objecting to a magistrate’s factual findings by
providing a transcript or affidavit of the evidence to the trial court, it may not later
provide an App.R. 9(C) statement to the appellate court in lieu of the transcript or
affidavit of evidence. This is because an appellate court cannot consider evidence that
the trial court did not have when it made its decision. State ex rel. Pallone v. Ohio Court
of Claims, 143 Ohio St.3d 493, 2015-Ohio-2003, 39 N.E.2d 1220, ¶ 11, citing Herbert v.
Herbert, 12th Dist. Butler No. CA2011-07-132, 2012-Ohio-2147, ¶ 13-15.1
Although we acknowledge that an App.R. 9(C) statement of evidence was not the 1
appropriate vehicle to establish the evidence in this case, we remind the trial court that when a proposed statement of the evidence is properly submitted pursuant to App.R. 9(C), and objections {¶13} We note that the magistrate’s decision made no factual findings; it merely
made a legal conclusion that Petrovich had failed to prove the allegations of his complaint
by a preponderance of the evidence. Thus, it would have been difficult for Petrovich to
object to any factual finding. But because he never received the magistrate’s decision, he
was never given the opportunity to either object to the decision or, as permitted by Civ.R.
53(D)(3)(a)(ii), to request within seven days after the issuance of the magistrate’s
decision that the magistrate issue findings of fact and conclusions of law that could form
the basis for his objection to the decision.
{¶14} We find the municipal court’s error in sending the magistrate’s decision to
an obviously incorrect address and, despite its knowledge that Petrovich had not received
the decision, its subsequent failure to ensure that Petrovich timely received the decision
so that he could exercise his rights under Civ.R. 53, to be a denial of Petrovich’s
procedural due process rights. Such denial prevented him from timely objecting to the
magistrate’s decision. Accordingly, we cannot, as Auto Repair urges, overrule
Petrovich’s assignments of error on the basis that he failed to object to the magistrate’s
decision and file an affidavit of the evidence in the trial court.
thereto are filed, the court may not merely refuse to approve the statement. “[I]t is the court’s function to decide what evidence was presented and, if necessary, to amend the proposed statement to conform to the evidence as [the court] found it to be.” Graphic Laminating, Inc. v. Creative Ents., Inc., 8th Dist. Cuyahoga No. 38030, 1978 Ohio App. LEXIS 8291, *12 (Dec. 7, 1978). In this case, Auto Repair objected to the substance of the proposed statement of evidence, but the magistrate entered a decision merely stating that the proposed App.R. 9(C) statement was “not approved.” The trial court affirmed the magistrate’s decision. Such a decision is error; the court must settle and approve the statement of the proceedings if any objections thereto are posed. Id.; see also Joiner v. Illuminating Co., 55 Ohio App.2d 187, 196, 380 N.E.2d 361 (8th Dist.1978). {¶15} The decision of the trial court affirming the magistrate’s decision is
therefore reversed, and the matter is remanded. Within seven days of the date of this
decision, Petrovich may file a request that the magistrate issue findings of fact and
conclusions of law. See Civ.R. 53(D)(3)(b)(ii). He may file objections to the
magistrate’s decision within 14 days after the magistrate’s findings of facts and
conclusions of law are filed. See Civ.R. 53(D)(3)(b)(iii). Because the municipal court
has acknowledged that a DVD of the proceedings before the magistrate is not available,
Petrovich may file an affidavit describing the evidence within 30 days after filing his
objections. See Civ.R. 53(D)(3)(b)(iii).
{¶16} Judgment reversed and remanded.
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 be sent to said 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.
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and LARRY A. JONES, SR., J., CONCUR