[Cite as Black v. Sakelios, 2014-Ohio-2587.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               WARREN COUNTY




RICKY LEE BLACK,                                     :
                                                           CASE NO. CA2013-10-094
        Plaintiff-Appellant,                         :
                                                                OPINION
                                                     :           6/16/2014
    - vs -
                                                     :

NANCY M. SAKELIOS,                                   :

        Defendant-Appellee.                          :



         CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             Case No. 11CV80826



Ricky Lee Black, 9261 State Route 48, Loveland, Ohio 45140, plaintiff-appellant, pro se

Sams, Fischer, Packard & Schuessler, Robert S. Fischer, 8738 Union Centre Boulevard,
West Chester, Ohio 45069, for defendant-appellee



        M. POWELL, J.

        {¶ 1} Plaintiff-appellant, Ricky Lee Black, appeals pro se separate decisions of the

Warren County Court of Common Pleas adopting a magistrate's decision and imposing

sanctions in appellant's replevin action.

        {¶ 2} Appellant and defendant-appellee, Nancy M. Sakelios, met in March 2008 and

became romantically involved. Two months later, appellant moved into Sakelios' house with

a number of his belongings, including a king-size bedroom suite, a queen-size canopy
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bedroom suite, several designer chairs of different types, a 50-inch plasma-screen television,

a Rolls Royce picnic basket, and two six-foot handmade stuffed bears. Some of the items

were stored in the garage, while others were put to immediate use in the house. Appellant

was unemployed and running low on funds at the time, so in addition to the full use of the

house, Sakelios also allowed him to use one of her credit cards to purchase groceries and

other household items.

        {¶ 3} Appellant moved out of Sakelios' house in October 2008, leaving many of his

belongings behind to be retrieved at a later date. Appellant returned Sakelios' credit card

prior to moving out. The pair remained in contact and, although the romance eventually

ended, their relationship remained cordial for the ensuing two years.

        {¶ 4} In March 2011, appellant returned to Sakelios' house to retrieve his belongings.

Appellant obtained the various items that were stored in the garage, but Sakelios refused to

permit appellant to take his property from the house until he repaid her for charges he

incurred on her credit cards in 2008.1 Appellant departed without attempting to retrieve the

remainder of the items from the house, taking with him certain credit card statements

Sakelios provided and the items from the garage.

        {¶ 5} A few days later, appellant emailed Sakelios a "demand letter" that read, in

part:

                ***

                You are hereby notified that you have ten (10) days from todays
                [sic] date to notify me or my representative, of a date certain
                within the next 30 days, when a bonded moving company can be
                contracted by me to remove my property from your residence.

                Last week I removed several * * * items from your residence at
                your request. At that time you presented me with several
                reciepts [sic] which were paid by you. You indicated these were

1. In her testimony, Sakelios indicated that although she only gave appellant possession of one of the credit
cards she held in her name, he had somehow incurred charges on several of them.
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              items I was financially responsible for reimbursing you. The total
              amount due is hereby acknowledged as $3,723.34.

              * * * My total claims [against you] total [sic] $5,400 * * *.

       {¶ 6} The matter remained unresolved and in October 2011, appellant filed a

complaint against Sakelios alleging conversion and damage to his plasma-screen television.

He later added an action for replevin. Sakelios filed a counterclaim alleging misuse of credit

cards, frivolous conduct, and abuse of process. The court ordered mediation of the dispute,

but appellant failed to appear for the mediation session. In November 2012, Sakelios filed a

motion for sanctions against appellant for his failure to appear at their court-ordered

mediation.

       {¶ 7} A trial was held before a magistrate in March 2013 upon the parties' various

claims. At the hearing, appellant testified as to when, where, and how he had obtained

ownership of each of the several items he sought to recover. On several occasions

throughout the hearing, appellant asserted he was more interested in getting his personal

property back than he was in obtaining money damages. In her testimony, Sakelios asserted

that appellant had made gifts of some of the items of his property to her family. Specifically,

Sakelios claimed that appellant had given one of the stuffed bears to her children, the Rolls

Royce picnic basket to her mother, and the canopy bedroom suite to her daughter.

       {¶ 8} In his decision, the magistrate noted that appellant's conversion and replevin

claims constituted alternative theories for two mutually exclusive remedies.           Due to

appellant's repeated assertion that his main concern was the recovery of his property, the

magistrate concluded that appellant had effectively elected to pursue the remedy of replevin.

Therefore, the magistrate found that appellant was entitled to an order of possession for the

return of most of the items he requested. However, the magistrate found that appellant was

not entitled to the return of the stuffed bear, the Rolls Royce picnic basket, and the canopy


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bedroom suite because appellant had gifted those items as Sakelios had testified.

       {¶ 9} With respect to Sakelios' counterclaims, the magistrate concluded that Sakelios

was entitled to recover $3,723.34 from appellant, with interest, for his use of her credit cards,

but that her claims of frivolous conduct and abuse of process were without merit. A ruling on

Sakelios' motion for sanctions was reserved for the trial court.

       {¶ 10} Appellant filed objections to the magistrate's decision. On September 11, 2013,

the trial court overruled the objections and adopted the magistrate's decision. On September

19, the trial court granted Sakelios' motion for sanctions against appellant for his failure to

appear at their court-ordered mediation session in November 2012 and awarded Sakelios

attorney’s fees of $250 and the mediator’s fee of $500. Appellant now appeals, raising four

assignments of error.

       {¶ 11} Assignment of Error No. 1:

       {¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT IN THAT THE MAGISTRATES [SIC] DECISION AND THE COURTS [SIC]

DECISION AND ENTRY ADOPTING THE DECISION OF THE MAGISTRATE SHOULD BE

MODIFIED TO REFLECT THAT THE PLAINTIFF DID NOT MAKE GIFTS OF ANY OF HIS

PROPERTY TO DEFENDANT.

       {¶ 13} Appellant challenges the trial court's finding that he gifted specific personal

items to Sakelios' relatives. First, appellant briefly disputes the credibility of Sakelios'

testimony. Further, appellant appears to argue that the trial court was precluded from finding

that appellant gifted any of his property to Sakelios' relatives because Sakelios failed to

include a gift defense in her pleadings, and because she did not have standing to assert that

appellant gifted personal items to third parties.

       {¶ 14} Appellant asserts that Sakelios was not a credible witness, and therefore takes

issue with the trial court's reliance on Sakelios' testimony to find that he made gifts of his
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property to her relatives. Given the evidence presented at the hearing, however, it was within

the trial court's discretion to adopt the magistrate's finding that appellant made the gifts.

"[I]ssues of credibility of witnesses and the weight to be given their testimony are issues for

the trier of fact." Huynh v. Haskell, 12th Dist. Clermont No. CA2012-03-027, 2013-Ohio-656,

¶16, citing Seasons Coal Co. v. City of Cleveland, 10 Ohio St.3rd 77, 81 (1984). Though

there was conflicting testimony at the hearing, Sakelios did provide lucid accounts of the

occasions on which appellant made the gifts and the trial court, as the trier of fact, was in the

best position to determine the credibility of this testimony. See Huynh at ¶ 16.

       {¶ 15} With respect to Sakelios' pleadings and her standing to claim that appellant

made the gifts to her relatives, appellant seems to misconstrue Sakelios' testimony on the

issue of gifts as an affirmative defense. "An affirmative defense is a new matter which,

assuming the complaint to be true, constitutes a defense to it." State ex rel. The Plain Dealer

Publishing Co. v. Cleveland, 75 Ohio St.3d 31, 33 (1996). That is, an affirmative defense

admits that the plaintiff has a claim, but asserts some legal reason the plaintiff cannot recover

on it. Id. Under Civ.R. 8(C), a party must specifically plead an affirmative defense, or risk a

finding by the trial court that the defense has been waived. Stafford v. Aces & Eights Harley-

Davidson, LLC, 12th Dist. Warren No. CA2005-06-070, 2006-Ohio-1780, ¶ 18; Hoover v.

Sumlin, 12 Ohio St.3d 1, 5 (1984).

       {¶ 16} The record shows that Sakelios' testimony on the issue of gifts was in the

nature of a denial of appellant's factual averments, not an affirmative defense. See, e.g.,

Alberts v. Dunlavey, 54 Ohio App. 111, 114 (5th Dist.1936) (gift is not an affirmative defense

if the establishment of a gift disproves plaintiff's claim). In order to prevail on either his

conversion or replevin action, appellant was required to prove that he was entitled to

possession of the property he claimed. DLK Co. of Ohio v. Meece, 12th Dist. Warren No.

CA2012-07-060, 2013-Ohio-860, ¶ 28 (plaintiff's actual or constructive possession or
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immediate right to possession of the property is a distinct element of conversion); Hershey v.

Edelman, 187 Ohio App.3d 400, 2010-Ohio-1992, ¶ 16 (10th Dist.) ("A replevin action is a

possessory action filed on behalf of one entitled to possession, against one having

possession and control of the property at the time the suit begins"). The purpose of Sakelios'

testimony relating to gifts was to disprove appellant's claim that he was entitled to possession

of the particular items.

       {¶ 17} The Ninth Appellate District decided a similar case in Schneider v. Schneider,

178 Ohio App.3d 264, 2008-Ohio-4495 (9th Dist.). In Schneider, the wife appealed the trial

court's decision denying her the remedy of replevin of the family dogs. Id. at ¶ 12. The trial

court had found that the husband had transferred ownership of the dogs to his parents

through an inter vivos gift prior to his death. Id. Among other things, the wife challenged the

parents' assertion of a "gift defense" in response to her claim. Id. at ¶ 15. Although the

appellate court ultimately ruled for the wife on other grounds, with respect to the gift defense

the court found that:

              [The wife] had the burden to persuade the trier of fact that she
              was entitled to possession of the dogs. * * * [The parents] had
              no burden of proof in this matter. The gift defense was not an
              affirmative defense that would have shifted the burden to them
              because it is neither listed in Rule 8(C) of the Ohio Rules of Civil
              Procedure, nor encompassed within the catchall provision for
              "any other matter constituting an avoidance or affirmative
              defense." [The parents] were not seeking affirmative relief and
              did not introduce a new issue into the case. They simply testified
              to that which disproved [the wife's] claim.

Id. at ¶ 16. (Internal citations omitted.)

       {¶ 18} We find the Ninth Appellate District's reasoning applicable in the present case.

Here, Sakelios was not seeking affirmative relief regarding the property that appellant was

found to have gifted to her relatives, and she was not introducing a new issue into the case.

See generally R.C. Olmstead, Inc. v. GBS Corp., 7th Dist. Mahoning No. 08 MA 83, 2009-


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Ohio-6808, ¶ 41 ("[W]here one simply testified to that which disproves the plaintiff's claim, an

affirmative defense is not asserted"). Therefore, Sakelios' failure to plead a "gift defense" did

not preclude a finding that appellant gifted some of his property to her relatives.

       {¶ 19} We also find appellant's argument regarding Sakelios' lack of standing to be

without merit. "Standing" is defined as "'[a] party's right to make a legal claim or seek judicial

enforcement of a duty or right.'" Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d

375, 2007-Ohio-5024, ¶ 27, quoting Black's Law Dictionary (8th Ed.2004). As was just

discussed, Sakelios was not making a legal claim that appellant gifted the items to her

relatives, and she was not seeking judicial enforcement of her relatives' rights. Sakelios

offered her testimony regarding the gifts simply to disprove appellant's claim that he had

satisfied all of the elements of conversion and replevin.

       {¶ 20} Appellant's first assignment of error is overruled.

       {¶ 21} Assignment of Error No. 2:

       {¶ 22} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFF-

APPELLANT IN OVERRULING APPELLANTS [SIC] OBJECTION TO ADMITTING

EVIDENCE THAT WAS MANUFACTURED BY APPELLEE.                              THE MAGISTRATE'S

DECISION AND THE COURTS [SIC] DECISION AND ENTRY ADOPTING THE DECISION

OF THE MAGISTRATE DECISION [SIC] SHOULD BE MODIFIED TO REFLECT THAT THE

APPELLANT DID NOT MAKE ANY UNAUTHORIZED CHARGES TO APPELLEE'S CREDIT

CARDS.       AND THAT, THE APPELLEE'S MANUFACTURED DOCUMENTS ARE

INADMISSIBLE IN LIEU OF THE ORIGINALS OR COPIES OF THE ORIGINALS. CUTOFF

DATE OF DISCOVERY DOCUMENTS PRECLUDES ADMISSIBILITY OF BOTH APPELLEE

AND APPELLANT.

       {¶ 23} Appellant argues that Sakelios' credit card statements should not have been

admitted into evidence because they were not true copies of the originals, and were
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submitted after the discovery cut-off date established by the magistrate.

       {¶ 24} Civ.R. 53(D)(3)(b)(iv) provides that "[e]xcept for a claim of plain error, a party

shall not assign as error on appeal the court's adoption of any factual finding or legal

conclusion * * * unless the party has objected to that finding or conclusion" to the trial court

pursuant to the requirements of Civ.R. 53(D)(3)(b). Although appellant did object to the

introduction of the credit card statements during the hearing before the magistrate, appellant

did not raise that objection in his filings with the trial court as required by Civ.R. 53(D)(3)(b).

Therefore, absent plain error, he has waived his right to appeal these issues. Roberts v.

Roberts, 12th Dist. Clinton No. CA2012-07-015, 2013-Ohio-1733, ¶ 19.

       {¶ 25} This court has previously noted that in civil matters plain error will be

recognized only in extremely rare cases involving exceptional circumstances where the error,

to which no objection was made at the trial court, seriously affects the basic fairness,

integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the

underlying judicial process itself. Zugg v. Wisby, 12th Dist. Warren No. CA2010-08-079,

2011-Ohio-2468, ¶ 14, quoting Imhoff v. Imhoff, 12th Dist. Clermont App. No. CA2003-09-

075, 2004-Ohio-3013, ¶ 11. There are no such exceptional circumstances here. Any error

on this issue would be harmless because it is clear from the decisions of both the magistrate

and the trial court that the basis for the finding of appellant's debt to Sakelios was not the

credit card statements, but appellant's admission contained in the demand letter

acknowledging a debt of $3,723.34.

       {¶ 26} Appellant's second assignment of error is overruled.

       {¶ 27} Assignment of Error No. 3:

       {¶ 28} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT IN THE MAGISTRATES [SIC] DECISION AND THE COURTS [SIC] DECISION

AND ENTRY ADOPTING THE MAGISTRATES [SIC] DECISION BY OVERRULING
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APPELLANTS OBJECTION AS TO ADMITTING INTO EVIDENCE APPELLANTS [SIC]

OPINION OF VALUE OF HIS PROPERTY, THE 50 INCH PIONEER PLASMA TV, THAT

THE MAGISTRATE PREVIOUSLY ORDERED ADMISSION [SIC].

       {¶ 29} Appellant asserts that the magistrate erred by refusing to allow him either to

testify to the amount of damage done to his plasma-screen television, or to submit the written

estimate he received for the repair of the television. Appellant seems to argue that had he

been permitted to present such evidence, the magistrate could have found that appellant was

entitled to set-off the $3,500 in damage to his television against the $3,723.34 he owed

Sakelios.

       {¶ 30} "It is well-established that the admission of evidence 'lies within the broad

discretion of the trial court, and a reviewing court should not disturb evidentiary decisions in

the absence of an abuse of discretion that created material prejudice.'" Schneble v. Stark,

12th Dist. Warren No. CA2011-06-063, 2012-Ohio-3130, ¶ 30, quoting State v. Morris, 132

Ohio St.3d 337, 2012-Ohio-2407, ¶ 14. An abuse of discretion implies that the court's

attitude is unreasonable, arbitrary, or unconscionable. Schneble at ¶ 30, citing Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶ 31} Because appellant did not call the authors of the estimate as witnesses or

anyone else who could authenticate the estimate, the magistrate correctly concluded that

appellant's information regarding the repair estimate constituted inadmissible hearsay under

Evid.R. 802. Beck v. W. Chester Lawn & Garden, 12th Dist. Butler No. CA2012-12-248,

2013-Ohio-2276, ¶ 9. Additionally, even if we were to assume, without deciding, that the

information regarding the repair estimate was admissible, we find that appellant was not

prejudiced by the trial court's decision to exclude it. Both the magistrate and the trial court

concluded that regardless of the amount of damage to the television, Sakelios would not

have been liable because no bailment contract existed between appellant and Sakelios.
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Accordingly, we find the trial court did not abuse its discretion in excluding both appellant's

testimony regarding the repair estimate and the written estimate itself. Schneble at ¶ 33.

       {¶ 32} Appellant's third assignment of error is overruled.

       {¶ 33} Assignment of Error No. 4:

       {¶ 34} THE COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN

ITS DECISION AND ENTRY ON DEFENDANTS [SIC] MOTION FOR SANCTIONS

AGAINST PLAINTIFF RICKY LEE BLACK, AND THE SANCTIONS MUST BE VACATED AS

TO RICKY LEE BLACK.

       {¶ 35} Appellant does not dispute that Sakelios and her counsel were present at a

court-ordered mediation session scheduled for November 8, 2012, and that he failed to

appear at that session. However, appellant asserts the trial court erred when it granted

Sakelios' motion for sanctions for his failure to appear. It is difficult to discern appellant's

legal argument on this point, but it appears he is arguing that the sanctions were

inappropriate because of his extenuating circumstances; namely, appellant had a death in

the family that required his presence out of town on the day of the mediation; appellant had

notified his counsel of this conflict; but appellant's counsel withdrew the day before the

scheduled mediation without notifying either Sakelios or the mediator of appellant's conflict.

       {¶ 36} The imposition of sanctions is within the discretion of the trial court. Pancher v.

Pancher, 12th Dist. Clermont No. CA86-06-038, 1987 WL 14318, *2 (July 20, 1987), citing

Toney v. Berkemer, 6 Ohio St.3d 455 (1983).

       {¶ 37} The trial court did not abuse its discretion. First, the imposition of sanctions

was clearly within the trial court's authority. Telecom, Ltd. v. Wisehart & Wisehart, Inc., 10th

Dist. Franklin No. 11AP-1147, 2012-Ohio-4376, ¶ 13-15. Consistent with its constitutional

authority, the trial court imposed sanctions against appellant under W.C.C.P. Local Rule

4.21, which states that "[i]f any individual ordered by the Court to attend mediation fails to
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attend without good cause * * * the Court may impose sanctions, which may include, but are

not limited to, the award of attorney fees and other costs * * * at the discretion of the

assigned judge or magistrate."

       {¶ 38} Moreover, the trial court aptly found that "while the loss of a family member is a

valid reason for not being available for a previously scheduled mediation, not notifying the

other party or the mediator of this unavailability for whatever reason, subjects the non-

appearing party to sanctions." Under the facts of this case, appellant did not fulfill his

responsibility to ensure that Sakelios and the mediator had been notified that he would not

attend the mediation session. See generally Postler v. Cent. Trust Co., N.A. of Cincinnati,

12th Dist. Warren No. CA92-11-103, 1993 WL 282681, *3 (July 26, 1993) (the imputation of

attorney negligence to his client is within the discretion of the trial court); Andring v. Andring,

3 Ohio App.2d 417, 420 (8th Dist.1965) ("The general rule of law seems to be that the

negligence of an attorney may be imputed to his client when by the exercise of care on the

client's part, [the client] would have avoided the consequences of the negligence of his

attorney"). Finally, the trial court ordered appellant to pay only the actual costs related to his

failure to appear: the cost of the mediator ($500) and the attorney fees related to preparing

the motion for sanctions ($250).

       {¶ 39} Appellant's fourth assignment of error is overruled.

       {¶ 40} Judgment affirmed.


       HENDRICKSON, P.J., and PIPER, J., concur.




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