[Cite as Smiley v. Morris, 2012-Ohio-320.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


RADI SMILEY

        Plaintiff-Appellant

-vs-

ROBERT MORRIS, et al.

        Defendants-Appellees

JUDGES:
Hon. William B. Hoffman, P. J.
Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.

Case No. 2011 CA 00098

OPINION

CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Case No. 2010 CV 01508

JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                         January 30, 2012

APPEARANCES:

For Plaintiff-Appellant                        For Defendants-Appellees

G. IAN CRAWFORD                                GREGORY A. BECK
CRAWFORD, LOWRY & ASSOCIATES                   ERIC J. STECZ
116 Cleveland Avenue NW                        MELISSA DAY
Suite 800                                      BAKER, DUBLIKAR, BECK,
Canton, Ohio 44702                             WILEY & MATHEWS
                                               400 South Main Street
                                               North Canton, Ohio 44720
Wise, J.

       {¶ 1} Appellant Radi Smiley appeals the trial court’s denial of his motion for

attorney fees following a jury trial in the Stark County Court of Common Pleas alleging

violations of the Consumer Sales Practices Act.

                            STATEMENT OF THE FACTS AND CASE

       {¶ 2} This case arises from a claim asserting faulty installation of a tile floor at

the home of Plaintiff-Appellant Radi Smiley by Defendant-Appellee, Robert G. Morris,

d.b.a. Morris Carpets.

       {¶ 3} In 2008, Appellant filed a Complaint in the Stark County Common Pleas

Court alleging breach of contract and consumers sales practices violations against

Appellee. Appellant subsequently dismissed and refiled this action on April 14, 2010.

       {¶ 4} Prior to the trial in this matter, Appellant filed a number of pre-trial briefs

and motions, including a Motion to Bifurcate Claims for Attorney Fees on December 29,

2010. The issue of attorneys' fees under the CSPA was also addressed in advance of

trial in Appellant's Trial Brief filed January 14, 2011.

       {¶ 5} The case was tried to a jury on February 17-18, 2011.1

       {¶ 6} On February 18, 2011, the jury returned a verdict in favor of Appellant,

finding that Morris violated the CSPA and awarding damages in the amount of

$2,700.00.

       {¶ 7} Pursuant to the Interrogatories submitted to the jury, the jury found that:




1
  Appellant’s brief incorrectly cites the trial date as May 7-8, 2007. Appellee also
incorrectly lists the trial date as May 6-7, 2011 and the date of the verdict and judgment
as May 10, 2007.
       {¶ 8} Morris violated Ohio Consumer Sales Practices Act by representing that

the subject of a consumer transaction had been supplied in accordance with a previous

representation of the supplier, when it had not been supplied as represented. (Jury

Interrogatory No. 2).

       {¶ 9} Morris violated the Ohio Consumer Sales Practices Act by failing to honor

a warranty either express or implied. (Jury Interrogatory No. 4).

       {¶ 10} Morris violated Ohio's Consumer Sales Practices Act by failing to perform

services in a competent, satisfactory and workmanlike manner and then failed or

refused to correct the substandard work or defect. (Jury Interrogatory No. 10).

       {¶ 11} However, for each of these findings, the jury also responded in the

negative when asked if Morris had "ACTED KNOWINGLY" when he violated the CSPA

in each such instance. (Jury Interrogatories 3, 5 and 11).

       {¶ 12} On February 23, 2011, Appellant filed a Motion for Treble damages and a

Motion for Judgment Notwithstanding the Verdict on the Issue of Knowingly Violating

the Consumer Sales Practices Act and a corresponding Motion for Hearing on Statutory

Attorney's Fees.

       {¶ 13} On February 24, 2011, Appellant filed a Motion for Injunctive Relief and a

Motion for Prejudgment Interest.

       {¶ 14} On March 3, 2011, Appellant filed a Supplemental Brief Re: Attorney’s

Fees, etc.

       {¶ 15} On March 14, 2011, Appellant filed a Supplemental Brief in support of

Motion for Injunctive Relief.
          {¶ 16} On March 17, 2011, Appellant filed a Supplemental Memorandum in

Support of Prejudgment Interest.

          {¶ 17} By separate judgment entries dated March 30, 2011, the trial court

overruled Appellant's motion for judgment notwithstanding the verdict and for attorney's

fees, Appellant’s motion for prejudgment interest and Appellant’s motion for injunctive

relief.

          {¶ 18} By separate Judgment Entry filed March 30, 2011, the trial court granted

Appellant’s motion for treble damages.

          {¶ 19} Appellant now appeals, assigning the following error for review:

                                    ASSIGNMENTS OF ERROR

          {¶ 20} “I. PLAINTIFF-APPELLANT ASSERTS THE COURT BELOW ERRED AS

A MATTER OF LAW BY DENYING APPELLANT’S MOTION FOR JUDGMENT

NOTWITHSTANDING THE VERDICT AND RELATED MOTION FOR ATTORNEY

FEES UNDER THE CONSUMER SALES PRACTICES ACT.                                THE ISSUE IS

PRIMARILY WHETHER THE TRIAL COURT SHOULD HAVE PROCEEDED WITH A

DETERMINATION OF AN AWARD OF ATTORNEY’S FEES UNDER OHIO REVISED

CODE §1345.09, MORE SPECIFICALLY, PLAINTIFF-APPELLANT SUBMITS:

          {¶ 21} “1. THE COURT BELOW ERRED AS A MATTER OF LAW TO THE

EXTENT IT ABROGATED TO THE JURY ITS DUTY TO DETERMINE ATTORNEY’S

FEES UNDER OHIO’S CONSUMER SALES PRACTICES ACT.

          {¶ 22} “2. THE COURT BELOW ERRED AS A MATTER OF LAW BY FAILING

TO         GRANT       PLAINTIFF-APPELLANT’S            MOTION        FOR      JUDGMENT
NOTWITHSTANDING THE VERDICT AS IT RELATED TO AN AWARD OF

ATTORNEY’S FEES UNDER OHIO’S CONSUMER SALES PRACTICES ACT.

      {¶ 23} “3. THE COURT BELOW OTHERWISE ERRED AS A MATTER OF LAW

BY FAILING TO GRANT PLAINTIFF-APPELLANT’S VARIOUS REQUESTS FOR A

DETERMINATION OF ATTORNEY’S FEES PURSUANT TO OHIO REVISED CODE

§1345.09.”

                                            I.

      {¶ 24} Appellant herein argues that the trial court erred in deferring to the jury on

the determination of whether Defendant-Appellee’s violations of the Consumer Sales

Practices Act were “knowingly” committed pursuant to R.C. §1345.09.

      {¶ 25} Appellant argues that such error deprived Appellant of the right and

opportunity to request and obtain attorney’s fees in the case sub judice.

      {¶ 26} As a preliminary matter, we find that Appellant has failed to file a transcript

of the jury proceedings. Appellee has moved to dismiss the appeal for this reason.

      {¶ 27} “The duty to provide a transcript for appellant review falls upon the

appellant. This is necessarily so because an appellant bears the burden of showing

reference to matters in the record. * * * When portions of the transcript necessary for

resolution of assigned error are omitted from the record, the reviewing court has nothing

to pass upon and thus, * * * has no choice but to presume the validity of the lower's

court's proceedings * * *. Knapp v. Laboratories (1980), 61 Ohio St.2d 197, 199, 400

N.E.2d 384. Where a transcript of proceedings in the trial court is necessary to

exemplify the facts which determined the issues presented there, its absence requires a

reviewing court to either dismiss the appeal or affirm the judgment of the court from
which the appeal is taken. State v. Render (1975), 43 Ohio St.2d 17, 330 N.E.2d 690,

paragraph two of the syllabus.

       {¶ 28} As set forth above, Appellant herein assigns as error the trial court’s denial

of his Motion for Judgment Notwithstanding the Verdict on the issue of attorney fees.

More specifically, Appellant argues that the trial court’s decision is based on the jury’s

determination that the violations of the Consumer Sales Practices Act were not

“knowingly” committed pursuant to R.C. §1345.09.

       {¶ 29} Appellant states the he objected in general to the "knowingly" jury

instruction and in particular to the corresponding jury interrogatories.

       {¶ 30} As Appellant has failed to include a transcript of the proceedings, we are

unable to review Appellant’s argument concerning the alleged failure of the trial court to

properly instruct the jury on the issue of “knowingly”. The record contains no proposed

jury instructions and, as noted earlier, no transcript of the actual jury instructions have

been provided to this Court. In light of the incomplete record, a meaningful review of this

matter is precluded. Knapp v. Edwards Laboratories, supra, 199.

       {¶ 31} Further, the standard for granting a motion for judgment notwithstanding

the verdict or in the alternative for a new trial pursuant to Civ.R. 50(B) is the same as

that for granting a motion for a directed verdict pursuant to Civ.R. 50(A). Texler v. D.O.

Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679, 693 N.E.2d 271,

1998–Ohio–602. Thus, JNOV is proper if upon viewing the evidence in a light most

favorable to the nonmoving party and presuming any doubt to favor the nonmoving

party, reasonable minds could come to but one conclusion, that being in favor of the

moving party. Wagoner v. Obert, 180 Ohio App.3d 387, 401-402, 905 N.E.2d 694,
2008-Ohio-7041, citing Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio

St.3d 512, 769 N.E.2d 835, 2002–Ohio–2842. “Neither the weight of the evidence nor

the credibility of the witnesses is for the [trial] court's determination in ruling upon [a

JNOV].” Osler v. Lorain (1986), 28 Ohio St.3d 345, 347, 504 N.E.2d 19, quoting Posin v.

A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 344 N.E.2d

334. When a trial court rules on a JNOV motion, all of the evidence introduced at trial is

available for the trial court's consideration. Beaston v. Slingwine, Seneca App.No. 13-

03-04, 2004-Ohio-924, citing Osler, supra, at 347, 504 N.E.2d 19.

      {¶ 32} The decision to grant or deny a Civ.R. 50(B) motion for JNOV is reviewed

de novo by an appellate court. Wagoner, supra, at 401, 905 N.E.2d 694, citing Osler,

supra, at 347, 504 N.E.2d 19.

       {¶ 33} Without a transcript of the proceedings, it is impossible for this Court to

find that the trial court’s decision is not supported by the record, and this Court is left

with no choice but to presume the validity of the lower's court's proceedings and affirm.

       {¶ 34} Accordingly, Appellant's assignment of error is overruled.

       {¶ 35} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.

By: Wise, J.
Hoffman, P. J., and
Edwards, J., concur.
                                             ___________________________________

                                             ___________________________________

                                             ___________________________________
                                                            JUDGES
              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




RADI SMILEY                               :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
ROBERT MORRIS, et al.                     :
                                          :
       Defendants-Appellees               :         Case No. 2011 CA 00098




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
