[Cite as Sexton v. Haines, 2011-Ohio-3531.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
ROGER L. SEXTON                               :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. John W. Wise, J.
                         Plaintiff-Appellee   :       Hon. Julie A. Edwards, J.
                                              :
-vs-                                          :
                                              :       Case No. 2010-CA-090067
ROBERT E. HAINES                              :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Delaware Municipal
                                                  Court, Case No. 10-CVG-01355


JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           July 14, 2011



APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

                                                  ROBERT HAINES          Pro Se
                                                  174 East Winter Street
                                                  Delaware, OH 43015
[Cite as Sexton v. Haines, 2011-Ohio-3531.]


Gwin, P.J.

        {¶1}    Defendant Robert Haines appeals a judgment of the Municipal Court of

Delaware County, Ohio, which overruled his objections to the decision of the magistrate

to whom the matter had been referred. The court approved and adopted the

magistrate’s decision and entered judgment on behalf of plaintiff-appellee Roger Sexton

on his complaint to evict appellant for failure to pay rent. Appellant, who is pro se,

assigns no errors, but challenges the magistrate’s factual findings, and argues because

his attorney was unprepared to try the case, and important evidence was not presented

to the court.

        {¶2}     The magistrate found when appellant was “down on his luck” appellee

permitted him to reside in a storage facility adjacent to appellee’s home. Appellant

moved into the premises in November 2009, and the parties reduced their agreement to

writing on December 1, 2009. They agreed appellant would pay $400 per month for his

use of the premises plus an unspecified sum for utilities. At the same time, appellant

signed a written acknowledgment that he owed appellee at least $706 for various

advances appellee had made. Unfortunately, a short time after he moved in, appellant

fell from a ladder and suffered serious injuries that required amputation of his foot.

        {¶3}    The magistrate found appellant made sporadic payments in varying

amounts.       The magistrate found from December 2009 through 2010 appellant paid

appellee $3398 while the rent accruing from November 2009 through May 2010 totaled

$2800.

        {¶4}    The magistrate found the two parties have colorful backgrounds and their

former friendship could not tolerate the rigors of daily proximity.        Ultimately, their
Delaware County, Case No. 2010-CA-090067                                                3


relationship deteriorated to the point where appellee served a three-day notice to leave

on June 3, 2010, and a complaint to recover possession on June 10, 2010.

       {¶5}   At trial, appellant argued his payments of $3398 was more than sufficient

to cover the $3,200 rent that had accrued through June. Appellee responded that he

first applied the payments appellant had made to the $706 debt and the balance to rent.

Appellee concluded appellant had not paid enough to cover the rent for May and June.

       {¶6}   The magistrate found appellant did not specify how the money was to be

applied to the debt and the rent. Appellant argues he intended none of the payments to

liquidate the loan and all of his payments should first be applied to rent.

       {¶7}   The magistrate found absent an express agreement by the parties or an

expressed intention by appellant that a payment should apply only to rent, the appellee

had the option to apply the payments to rent or to the debt. Appellee elected to apply

the payments to satisfy the $706 loan first. The magistrate concluded appellant was in

arrears for rent in May and June, and granted judgment in favor of appellee. The

magistrate also noted the complaint only sought recovery of the premises and did not

include a claim for unpaid rent.

       {¶8}   Thereafter, appellant filed objections to the magistrate’s decision, arguing

the magistrate’s mathematics were flawed and if anything, appellant had overpaid for

May and June. Appellant asserted he had informed appellee he would not pay the loan

back because appellee had damaged or converted certain items of appellant’s property.

       {¶9}   After reviewing the video transcript of the hearing before the magistrate,

the trial court overruled the objections, finding the magistrate correctly calculated the

accrued rent and the payments appellant had made. The court found the magistrate
Delaware County, Case No. 2010-CA-090067                                                    4


was correct in determining appellee had the option of applying the payments either to

the loan or the rent.

       {¶10} With his pro se notice of appeal, appellant attached a handwritten

narrative asserting he disagreed with nearly all the magistrate’s findings of fact and

especially his mathematics. Appellant asserted his counsel was totally incompetent in

handling the case and was no longer representing him. Appellant suggested a review

of the hearing would lead us to conclude appellee’s credibility is questionable.

       {¶11} Appellant also elaborated on his allegations of wrongdoing on the part of

appellee. In his brief to this court, appellant asserts if this court orders a new hearing, he

will produce evidence demonstrating appellee’s testimony was fabricated.

       {¶12} Appellant challenges the magistrate’s findings, but this court cannot

disturb a trial court’s decision as being against the manifest weight of the evidence if the

decision is supported by some competent and credible evidence. C.E. Morris Company

v. Foley Construction Company (1978), 54 Ohio St. 2d 279, 376 N.E.2d 578.

       {¶13} In reviewing appellant’s arguments, we must be guided by the

presumption that the trial court is best able to view the witnesses and observe their

demeanor, gestures, and voice inflections, and to use these observations in weighing

the credibility of the proffered testimony. Seasons Coal Company, Inc. v. Cleveland

(1984), 10 Ohio St. 3d 77, 80, 461 N.E. 2d 1273. We must defer to the factual findings

of the judge regarding the credibility of the witnesses. State v. DeHass (1967), 10 Ohio

St. 2d 230, 227 N.E. 2d 212, syllabus by the court, paragraph one.              We may not

substitute our judgment for that of the trier of fact.   Pons v. Ohio State Medical Board

(1993), 66 Ohio St. 3d 619, 621, 614 N.E. 2d 748. A fact finder is to free to believe all,
Delaware County, Case No. 2010-CA-090067                                              5

part, or none of the testimony of each witness. Hill v. Briggs (1996), 111 Ohio App. 3d

405, 412, 676 N.E. 2d 547.

      {¶14} If the evidence is susceptible to more than one construction, reviewing

courts must give it the interpretation most consistent with the verdict and judgment.

White v. Euclid Square Mall (1995), 107 Ohio App. 3d 536, 539, 669 N.E. 2d 82. Mere

disagreement over the credibility of witnesses is an insufficient reason to reverse a

judgment. State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E. 2d 1264, at

paragraph 24.

      {¶15} Further, reviewing courts may not consider issues not presented to the

trial court. State ex rel. Quarto Mining Company v. Foreman (1997), 79 Ohio St. 3d 78,

81, 679 N.E. 2d 706, quoting Goldberg v. Industrial Commission (1936), 131 Ohio St.

399, 404, 3 N.E. 2d 364.

      {¶16} Finally, appellant argues his attorney was not prepared to try the case,

and a new hearing is required to present important evidence not adduced at the original

hearing. The Supreme Court has instructed us that an unsuccessful civil litigant may

not obtain a new trial based upon an assertion that his or her attorney was ineffective.

Goldfuss v. Davidson, 79 Ohio St. 3d 116, 1997-Ohio-401, 679 N.E. 2d 1099, at page

122, citing Roth v. Roth (1989), 65 Ohio App. 3d 768, 776, 585 N.E. 2d 482; Deppe v.

Tripp (C.A. 7, 1988), 863 F. 2d 1356, 1361.

      {¶17} We have reviewed the record and the video transcript of the hearing

before the magistrate, and we cannot say the trial court erred in overruling appellant’s

objections to the magistrate’s decision, and adopting the decision as its own.
Delaware County, Case No. 2010-CA-090067                                   6


      {¶18} For the foregoing reasons, the judgment of the Municipal Court of

Delaware County, Ohio, is affirmed.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur




                                       _________________________________
                                       HON. W. SCOTT GWIN

                                       _________________________________
                                       HON. JOHN W. WISE

                                       _________________________________
                                       HON. JULIE A. EDWARDS
WSG:clw 0627
[Cite as Sexton v. Haines, 2011-Ohio-3531.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


ROGER L. SEXTON                                  :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
ROBERT E. HAINES                                 :
                                                 :
                                                 :
                       Defendant-Appellant       :       CASE NO. 2010-CA-090067




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

judgment of the Municipal Court of Delaware County, Ohio, is affirmed.          Costs to

appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN

                                                     _________________________________
                                                     HON. JOHN W. WISE

                                                     _________________________________
                                                     HON. JULIE A. EDWARDS
