[Cite as In re Yeckley, 2012-Ohio-2504.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97426




                IN RE: ESTATE OF LENA M. YECKLEY
                   [APPEAL BY DENNIS YECKLEY]




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                     Probate Court Division
                                   Case No. 10 EST 0164293

        BEFORE: E. Gallagher, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                  June 7, 2012
FOR APPELLANT

Dennis Yeckley, pro se
271 East 270th Street
Euclid, Ohio 44132


ATTORNEYS FOR APPELLEES

For Thomas D. Yeckley

James W. Tekavec
38106 Third Street
Willoughby, Ohio 44094

Edwin V. Hargate
18519 Underwood Avenue
Cleveland, Ohio 44119

For Linda L. Scott

Allen C. Hufford
22408 Lake Shore Blvd.
Euclid, Ohio 44123
EILEEN A. GALLAGHER, J.:

       {¶1} Appellant, Dennis G. Yeckley, appeals the trial court’s judgment entry

denying and dismissing appellant’s objections to a magistrate’s decision and ordering the

lost will of decedent Lena M. Yeckley to be admitted to probate. For the following

reasons, we affirm the decision of the trial court.

       {¶2} Lena M. Yeckley passed away on April 13, 2006.              An application for

authority to administer estate was filed with the Court of Common Pleas, Cuyahoga

County, Probate Court Division, on December 20, 2010, by Linda L. Scott, daughter of

Lena Yeckley. A last will and testament of Lena Yeckley, dated May 11, 2001, was

admitted to probate on that date.

       {¶3} On May 25, 2011, Thomas Yeckley, son of Lena Yeckley, filed an

application to probate a lost or spoliated will, attaching a last will and testament of Lena

Yeckley that was signed and dated March 24, 2003. A hearing on that application was

conducted on July 12, 2011, before a magistrate wherein appellant, also a son of Lena

Yeckley, opposed the application of Thomas Yeckley. The magistrate’s decision issued

on July 28, 2011 recommended that the prior will that was admitted to probate on

December 20, 2010 be vacated and set aside and that Thomas Yeckley’s application and

the lost will, dated March 24, 2003, be admitted to probate.

       {¶4} Appellant filed objections to the magistrate’s decision on August 8, 2011,

wherein he objected to the trial court’s failure to provide a court reporter to record the

magistrate’s hearing and the testimony of certain witnesses at the hearing. Appellant
attached to his objections an affidavit asserting that he had requested a court reporter but

was “denied.”    The trial court denied and dismissed appellant’s objections and adopted

the magistrate’s decision as an order of the court on September 21, 2011.

       {¶5} Appellant appeals from the trial court’s order asserting the following sole

assignment of error:

       {¶6} “[Trial] court abused its discretion by compelling and denying Dennis G.

Yeckley appellant to proceed at hearing without court reporter, continuance, and

witnesses.”

       {¶7} Appellant argues that the trial court erred in overruling his objections

because the magistrate conducted the hearing without a court reporter, that the magistrate

failed to construe his objection to the absence of a court reporter as a motion for a

continuance of the hearing and that he “had no opportunity to present any evidence or

testimony before the magistrate made his decision.”

       {¶8} A trial court’s ruling on objections to a magistrate’s decision will not be

reversed absent an abuse of discretion. Gobel v. Rivers, 8th Dist. No. 94148,

2010-Ohio-4493, ¶ 16. An abuse of discretion implies that the court’s attitude was

unreasonable, arbitrary or unconscionable, not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140, (1983).

       {¶9} As an initial matter, we note that there is no evidence in the record to

support appellant’s contention that he was denied an opportunity to present evidence at

the magistrate’s hearing.   In fact, appellant’s own affidavit that was attached to his
objections to the magistrate decision states that he presented testimony, under oath, at the

hearing.     The trial court’s approved statement of facts, set forth pursuant to App.R.

9(C), confirms that appellant testified at the magistrate’s hearing and had the opportunity

to cross-examine each witness.      Appellant’s argument that he was not provided an

opportunity to present evidence is directly refuted by the record and without merit.

          {¶10}   With respect to appellant’s contention that the magistrate erred in

conducting the hearing without a court reporter present, Civ.R. 53(D)(7) states, “[e]xcept

as otherwise provided by law, all proceedings before a magistrate shall be recorded in

accordance with procedures established by the court.”

          {¶11}   Loc.R. 11.1 of the Probate Division, at the time the hearing was

conducted,1 provided:

          Proceedings before a judge, magistrate, or referee may be
                      recorded by stenographic means or other
                      electronic means approved by the Court,
                      provided that any party or counsel requesting
                      such recording shall make satisfactory
                      arrangements for payment of the costs.

          {¶12}   The magistrate’s decision specifically notes, “[n]o transcript of the

hearing was taken. The parties waived the appearance of a court reporter.” Appellant

asserted in his affidavit that was attached to his objections that he “requested a [c]ourt

[r]eporter but was denied * * *.” In denying appellant’s objections to the magistrate’s

decision the trial court noted that, pursuant to Loc.R. 11.1, the responsibility for


      1
       The rule was extensively amended on September 12, 2011.
arranging for a court reporter falls upon the requesting party. The trial court noted that

appellant did not assert in his affidavit that he had made such arrangements or that he

requested a continuance of the hearing in order to do so. Furthermore, the trial court’s

App.R. 9(C) approved statement of facts notes that none of the parties arranged for a

court reporter as required by local rule for the magistrate hearing. Based upon the above

record, we cannot say that the trial court abused its discretion in overruling appellant’s

objection to the magistrate conducting the hearing without a court reporter present.

       {¶13} Finally, appellant argues that the magistrate should have construed his

objection to the lack of a court reporter as a motion for a continuance. Appellant failed

to raise this argument before the trial court in his objections to the magistrate’s decision.

Wilson v. Wilson, 8th Dist. No. 86817, 2006-Ohio-4261, ¶ 25, citing Howard v.

Norman’s Auto Sales, 10th Dist. No. 02AP-1001, 2003-Ohio-2834.                        Civ.R.

53(D)(3)(b)(iv) provides that “a party shall not assign as error on appeal the court’s

adoption of any factual finding or legal conclusion [by the magistrate] * * * unless the

party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).”

       {¶14}   An appellate court need not consider an error to which a party could have

objected, but was not brought to the attention of the trial court. Wilson v. Wilson, 8th

Dist. No. 86817, 2006-Ohio-4261, ¶ 26, citing Burns v. May, 133 Ohio App.3d 351, 358,

728 N.E.2d 19 (12th Dist.1999).

       {¶15} Furthermore, we note that appellant’s position is expressly contradicted by

the magistrate’s opinion that stated that the parties waived the appearance of a court
reporter.   Although appellant stated in his affidavit that he requested but was denied a

court reporter, he did not challenge or dispute the magistrate’s statement that, in

proceeding with the hearing, the parties waived the appearance of a court reporter.   It is

impossible to reconcile appellant’s argument that the magistrate should have construed

his objection as a motion for a continuance of the hearing with such a waiver.

       {¶16}    Appellant’s assignment of error is overruled.

       {¶17}    The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said lower 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.




EILEEN A. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
