Smith v. Burke

2013 Ohio 5563

• Court: Ohio Court of Appeals
• Decided: December 18, 2013
• Docket: 26913
• Status: Published

Opinion

[Cite as Smith v. Burke, 2013-Ohio-5563.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

AMANDA SMITH, et al. C.A. No. 26913

Appellees

v. APPEAL FROM JUDGMENT ENTERED IN THE FRED BURKE, et al. BARBERTON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellants CASE No. 13 CVI 370

DECISION AND JOURNAL ENTRY

Dated: December 18, 2013

WHITMORE, Judge.

{¶1} Defendant-Appellants, Fred Burke and Lilliam DeJesus, appeal from the

judgment of the Barberton Municipal Court. This Court reverses.

I

{¶2} Amanda and Bryan Smith (collectively, “the Smiths”) filed a small claims action

against Burke and DeJesus. In their pro se complaint, the Smiths alleged that they paid Burke

and DeJesus for services that were never rendered. Copies of a summons were sent by certified

mail to Burke and DeJesus and signed for on February 27, 2013. The signatures on the receipts

are illegible. The summons indicated a hearing date of March 13, 2013.

{¶3} On March 12, 2013, DeJesus faxed a letter to the Barberton Clerk of Courts. In

that letter, she requested that the court dismiss the complaint because she had never done

business in Ohio or with the Smiths. Neither Burke nor DeJesus appeared at the March 13th

hearing, and the magistrate recommended that judgment be awarded in favor of the Smiths. The 2

magistrate’s decision included the following language, “[a]ny person may appeal to the [c]ourt

from any Order of a Magistrate by filing a Motion to set the Order aside * * * in accordance with

Civ.[R.] 53, within fourteen days of the filing of the order or ten days of a pretrial order.”

{¶4} Burke and DeJesus filed a motion to set aside the magistrate’s order and attached

affidavits in which they averred that they are both residents of Georgia and have never done

business in Ohio or with the Smiths. The trial court concluded the magistrate “ha[d] properly

determined the factual issues and appropriately applied the law” and entered judgment for the

Smiths. Burke and DeJesus now appeal and raise one assignment of error for our review.

II

Assignment of Error

THE DECISION MADE AGAINST THE APPELLANTS WAS IN ERROR BECAUSE APPELLANTS HAVE NEVER DONE BUSINESS WITH APPELLEES. APPELLANTS DO NOT LIVE IN OHIO NOR HAVE THEY EVER CONDUCTED BUSINESS IN OHIO. APPELLANT BERKE (sic) DOES NOT HAVE, NOR HAS HE EVER HAD ANY INVOLVEMENT WITH ANY BUSINESS.

{¶5} In their sole assignment of error, Burke and DeJesus argue that the court erred by

entering judgment against them because the court lacked personal jurisdiction.

{¶6} “A magistrate’s decision shall indicate conspicuously that a party shall not assign

as error on appeal the court’s adoption of any factual finding or legal conclusion, whether or not

specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),

unless the party timely and specifically objects to that factual finding or legal conclusion as

required by Civ.R. 53(D)(3)(b).” Civ.R. 53(D)(3)(a)(iii). “In cases where the magistrate’s

decision does not notify the parties of [the] need to file objections, the appropriate remedy is for

this [C]ourt to reverse and remand the matter to the trial court for the magistrate to prepare a

decision which complies with Civ.R. 53(D)(3)(a)(iii), giving the parties an opportunity to file 3

timely objections.” Keller v. Keller, 9th Dist. Summit No. 25967, 2012-Ohio-4029, ¶ 7. See

also Ball v. Meier, 9th Dist. Summit Nos. 26079 & 26109, 2012-Ohio-5864, ¶ 17-23.

{¶7} Here, the magistrate’s decision did not provide the notice required by Civ.R.

53(D)(3)(a)(iii). Instead, the decision erroneously informed the parties that they could appeal

the order by filing a motion to set aside the magistrate’s order. It appears Burke and DeJesus

relied on this language because they filed a motion to set aside the magistrate’s order, instead of

filing objections to the magistrate’s decision.

{¶8} The rule is clear that a magistrate’s decision must include a conspicuous notice of

a party’s right to object. Civ.R. 53(D)(3)(a)(iii). Because of the incorrect language in the

magistrate’s decision, Burke and DeJesus were not given notice of their right to object and, more

importantly, what would be required to properly support their objection in accordance with

Civ.R. 53. See Civ.R. 53(D)(3)(b).

{¶9} Because Burke and DeJesus relied on erroneous language in the magistrate’s

decision and were not given the required notice of their right to file objections, we reverse and

remand the matter for the magistrate to prepare a decision that complies with Civ.R.

53(D)(3)(a)(iii), thereby giving the parties the opportunity to file objections.

{¶10} Burke and DeJesus’ assignment of error is sustained.

III

{¶11} Burke and DeJesus’ assignment of error is sustained. The judgment of the

Barberton Municipal Court is reversed and the cause is remanded for further proceedings

consistent with this opinion.

Judgment reversed, and cause remanded. 4

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Barberton

Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellees.

BETH WHITMORE FOR THE COURT

MOORE, P. J. BELFANCE, J. CONCUR.

APPEARANCES:

LILLIAM DEJESUS and FRED BURKE, pro se, Appellants.

AMANDA L. SMITH and BRYAN P. SMITH, pro se, Appellees.