[Cite as Arotin v. Nickels, 2017-Ohio-1003.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


KARI AROTIN,                                      :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2016-L-097
        - vs -                                    :

SEAN NICKELS, et al.,                             :

                 Defendants-Appellants.           :


Civil Appeal from the Willoughby Municipal Court, Case No. 2016 CVI 00367.

Judgment: Affirmed.


Kari Arotin, pro se, 11769 Bass Lake Road, Chardon, OH 44024 (Appellee).

Sean Nickels and Rhiannon Resor, pro se, 8419 Williams Road, Chardon, OH 44024
(Appellants).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellants, Sean Nickels and Rhiannon Resor, appearing pro se, appeal

the judgment of the Willoughby Municipal Court in the amount of $2,968.47 against

them and in favor of appellee, Kari Arotin, also appearing pro se. At issue is whether

appellants are precluded from challenging the magistrate’s findings of fact due to their

failure to file a transcript of proceedings before the magistrate. For the reasons that

follow, we affirm.
      {¶2}   On March 16, 2016, appellee filed a small claims complaint against

appellants for damaging her rental property while appellants were living there. Appellee

sought judgment in the amount of $3,000.

      {¶3}   The case came on for hearing before the court’s magistrate on June 6,

2016. During the hearing, appellee testified regarding damage caused by appellants to

her rental property. Appellee submitted various exhibits that were admitted in evidence,

including a detailed itemization of damages, which listed the repairs made to the house

and the repair costs, in the total amount of $2,968.47.         Appellee also submitted

photographs documenting the damage and bills for the cost of repairs. Appellants failed

to present any exhibits at the hearing disputing these evidentiary materials.

      {¶4}   On June 15, 2016, the magistrate filed his decision. The magistrate found

that appellants leased a home from appellee in Willowick and that appellants caused

damage to appellee’s property, which was beyond normal wear and tear, in the total

amount of $2,968.47.     As a result, the magistrate recommended that judgment be

entered in favor of appellee and against appellants in that amount.

      {¶5}   On June 20, 2016, appellants filed objections to the magistrate’s decision,

asserting various factual challenges to the decision; however, they did not file a

transcript of the magistrate’s hearing in support of their objections. Appellee filed her

response to the objections.

      {¶6}   On August 3, 2016, the trial court entered judgment, in which it stated that,

after making an independent review of the magistrate’s decision and the objections, the

court found no error of law or other defect on the face of the magistrate’s decision. The




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court overruled the objections; affirmed the magistrate’s decision; and entered judgment

in favor of appellee and against appellants in the amount of $2,968.47.

       {¶7}   Appellants appeal the trial court’s judgment, asserting the following for

their sole assignment of error:

       {¶8}   “The civil court committed error in granting plaintiff-appellant [sic], Kari

Arotin’s motion [sic] for monetary judgment for damages to a rental property owned by

the plaintiff after early lease termination by appellees [sic] whilst excluding evidence

defendants-appellees [sic], Sean Nickels and Rhiannon Resor, attempted to provide.

The civil court committed error in granting plaintiff appellant’s [sic] motion [sic] for

monetary judgment, finding that the facts in evidence presented by defendant appellees

[sic] in objection do not support a conclusion of excessive wear and tear, timely itemized

security deposit deduction or unlawful termination of a lease agreement.”

       {¶9}   This court summarized the law regarding a party’s failure to file a

transcript in support of his or her objections to a magistrate’s decision in Estate of

Stepien v. Robinson, 11th Dist. Lake No. 2013-L-001, 2013-Ohio-4306, as follows:

       {¶10} Civ.R. 53(D)(3)(b)(iii) provides in pertinent part: “An objection to a
             factual finding * * * shall be supported by a transcript of all the
             evidence submitted to the magistrate relevant to that finding * * *. *
             * * The objecting party shall file the transcript * * * with the court
             within thirty days after filing objections * * *.” (Emphasis omitted.)
             This court has repeatedly held that an appellant is prohibited from
             challenging the factual findings of the magistrate unless he files a
             transcript of the magistrate’s hearing with the trial court with his
             objections. Savage v. Savage, 11th Dist. Lake Nos. 2004-L-024
             and 2004-L-040, 2004-Ohio-6341, ¶31; Yancey v. Haehn, 11th
             Dist. Geauga No. 99-G-2210, 2000 WL 263757, *2 (Mar. 3, 2000).
             The failure to file a transcript waives all factual challenges on
             appeal. Eiselstein v. Baluck, 7th Dist. Mahoning No. 11 MA 74,
             2012-Ohio-3002, ¶17. The duty to provide a transcript to the trial
             court rests with the person objecting to the magistrate's decision. In
             re O’Neal, 11th Dist. Ashtabula No. 99-A-0022, 2000 WL 1738366,



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              *3 (Nov. 24, 2000). “Where the failure to provide the * * * transcript
              * * * is clear on the face of the submissions, the trial court cannot
              then address the merits of the factual objection because the
              objecting party, whether through inadvertence or bad faith, has not
              provided all of the materials needed for the review of that
              objection.” (Emphasis omitted.) Wade v. Wade, 113 Ohio App.3d
              414, 418 (11th Dist.1996). When a party fails to file a transcript of
              the evidence presented at the magistrate’s hearing, the trial court,
              when ruling on the objections, is required to accept the magistrate’s
              findings of fact and to review only the magistrate’s conclusions of
              law based on those factual findings. State ex rel. Duncan v.
              Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730 (1995); Saipin v.
              Coy, 9th Dist. Summit No. 21800, 2004-Ohio-2670, ¶9. If the
              objecting party fails to provide the court with a transcript of the
              magistrate’s hearing to support the objections, the trial court may
              properly adopt a magistrate’s factual findings without any further
              consideration. Lincoln Savings & Loan Assn. v. Damron, 4th Dist.
              Lawrence No. 02CA4, 2003-Ohio-2596, ¶23; Wade, supra.
              Stepien, supra, at ¶28.

       {¶11} Further, when no transcript is provided to the trial court in support of

factual objections to a magistrate’s decision, an appellate court is limited to determining

whether the trial court abused its discretion in adopting the magistrate’s decision. Smith

v. Treadwell, 11th Dist. Lake No. 2009-L-150, 2010-Ohio-2682, ¶25.              Without a

transcript, the trial court’s review of the magistrate’s findings of fact is limited to

determining whether those findings support the magistrate’s conclusions of law. Id.

“Under such circumstances, therefore, an appellate court will only reverse if it finds the

trial court adopted the magistrate’s decision when there was clear error or other defect

on its face.” Id.

       {¶12} Here, appellants’ objections asserted various factual challenges to the

magistrate’s decision. For example, they challenged various repair charges because,

they argued, the charges were for items that were normal wear and tear or were

excessive. They also challenged the cost to replace the kitchen sink because, according




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to them, the sink did not need to be replaced. They also challenged the effectiveness of

appellee’s efforts to remove some mold in one corner of the basement.                     They

challenged the bill to clean urine stains on the carpeting because, they said, the dogs

that caused this damage were not theirs, but, rather, belonged to their friends who

visited often. Each of these factual challenges was waived due to appellants’ failure to

file a transcript of the magistrate’s hearing. Stepien, supra.

       {¶13} In their appellate brief, appellants assert additional factual challenges that

were not included in their objections and thus are presented for the first time on appeal.

For example, they argue that appellee was late in presenting her “itemized security

deposit deduction.” These factual challenges are waived because they were not raised

in appellants’ objections and, further, because appellants failed to file a transcript.

       {¶14} Appellants also argue that appellee was negligent in repairing the mold in

one corner of the basement. This argument is waived because it was not raised in

appellants’ objections and was not supported by a transcript of the hearing. In any

event, appellants admit that appellee submitted “evidence of health inspections” finding

no “harmful environments” in the home and that they, i.e., appellants, failed to submit a

countervailing expert report.

       {¶15} In summary, because appellants’ appeal involves factual challenges to the

magistrate’s decision and appellants failed to file a transcript of the hearing before the

magistrate, their arguments are waived. Further, we agree with the trial court’s finding

that there is no clear error of law or other defect on the face of the magistrate’s decision.

We therefore hold the trial court did not abuse its discretion in adopting the magistrate’s

decision.




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       {¶16} For the reasons stated in this opinion, the assignment of error is overruled.

It is the order and judgment of this court that the judgment of the Willoughby Municipal

Court is affirmed.



DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.




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