[Cite as Lakemore v. Schell, 2019-Ohio-5097.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

VILLAGE OF LAKEMORE                                   C.A. No.       29075

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ERIC A. SCHELL                                        COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CV-2012-05-2561

                                DECISION AND JOURNAL ENTRY

Dated: December 11, 2019



        CARR, Presiding Judge.

        {¶1}    Appellant, Eric Schell, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                 I.

        {¶2}    In 2012, the Village of Lakemore filed a complaint against Schell alleging

violations of the Village’s zoning ordinances and seeking to enjoin Schell from completing the

construction of a garage on his property. Schell filed an answer denying the allegations in the

complaint and asserting multiple affirmative defenses.

        {¶3}    On July 24, 2013, the trial court issued a journal entry indicating that the parties

had reached a settlement agreement. The trial court specified that the terms of the settlement

agreement had been read into the record at a settlement hearing. Pursuant to the agreement,

Schell would be permitted to construct a 500 square foot garage on his property as long as he

filed a proper application for a zoning permit with the Village. Once he obtained a permit,
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Schell was required to make continual and reasonable progress toward constructing the garage

within one year. If Schell failed to make continual and reasonable progress during that period,

he would be required to remove from his property the portion of the garage that had already been

constructed. The parties further agreed that the complaint would be dismissed with prejudice

and that Schell would dismiss an administrative appeal that he had filed against the Village. In

its journal entry, the trial court stated that it would retain continuing jurisdiction only as

necessary to enforce the terms of the settlement agreement.

       {¶4}    Roughly four years later, the Village filed a motion to show cause as to why

Schell should not be held in contempt for violating the terms of the settlement agreement.

Specifically, the Village alleged that Schell had not made reasonable progress toward

constructing the building and that he had “refused to remove the structure despite the fact that

well over one year ha[d] passed.”

       {¶5}    The matter proceeded to a hearing before a magistrate where both parties

presented evidence. The magistrate subsequently issued a decision finding Schell in indirect

civil contempt for failing to abide by the terms of the settlement agreement. The magistrate set

forth a number of purge conditions. The magistrate found that while there had been a delay in

ruling on Schell’s application for a permit on the part of the Village, the delay did not constitute

a material breach of the settlement agreement. The magistrate further found that once the permit

was issued, Schell failed to take any reasonable steps toward completing the garage and thus

violated the terms of the settlement.      Both Schell and the Village filed objections to the

magistrate’s decision. On May 21, 2018, the trial court issued an order independently adopting

the magistrate’s decision. The trial court discussed the parties’ objections but noted that it

considered the magistrate’s decision as though no objections were filed because the parties had
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failed to comply with a number of filing deadlines. In adopting the magistrate’s decision, the trial

court made several modifications to the purge conditions.

       {¶6}    On appeal, Schell raises one assignment of error.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN DETERMINING THAT MR. SCHELL’S
       OBJECTIONS TO THE MAGISTRATE’S DECISION WERE NOT TIMELY
       FILED.

       {¶7}    In his sole assignment of error, Schell contends that the trial court erred in

determining that his objections were untimely. This Court disagrees.

       {¶8}    This Court generally reviews a trial court’s action in regard to a magistrate’s

decision for an abuse of discretion. Fields v. Cloyd, 9th Dist. Summit No. 24150, 2008-Ohio-

5232, ¶ 9. “In so doing, we consider the trial court’s action with reference to the nature of the

underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-

3139, ¶ 18. An abuse of discretion implies that the trial court’s attitude was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶9}    Civ.R. 53(D)(3)(b)(i) provides as follows:

       A party may file written objections to a magistrate’s decision within fourteen days
       of the filing of the decision, whether or not the court has adopted the decision
       during that fourteen-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any
       party timely files objections, any other party may also file objections not later
       than ten days after the first objections are filed. If a party makes a timely request
       for findings of fact and conclusions of law, the time for filing objections begins to
       run when the magistrate files a decision that includes findings of fact and
       conclusions of law.

       {¶10} In turn, Civ.R. (D)(3)(b)(iii) provides in part that 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 rule further provides that “[t]he objecting party shall file the transcript * * *
                                                  4


within thirty days after filing objections unless the court extends the time in writing for

preparation of the transcript or other good cause. If a party files timely objections prior to the

date on which a transcript is prepared, the party may seek leave of court to supplement the

objections.” Id. Civ.R. 53(D)(4)(d) provides in part that “[i]f one or more objections to the

magistrate’s decision are timely filed, the court shall rule on those objections.”

       {¶11} Loc.R. 18.05 of the Summit County Court of Common Pleas, General Division

(“Loc.R. 18.05”) states:

       Appeal or objections to the magistrate’s order or decision, and memoranda in
       support, may be filed by any party in accordance with Civ.R. 53 * * *.
       Memoranda contra objections or replies to an appeal may be filed by any party
       within seven (7) days of the filing of such objections or appeal. The time limit
       established by Civ.R. 53 * * * for the filing of objections to the magistrate’s
       order/decision may be extended by the assigned judge only upon written
       application supported by an affidavit stating facts indicating a practical
       impossibility of compliance. If a transcript of the trial or hearing is necessary to
       support objections or appeal to the magistrate’s decision or order, it must be filed
       with the Court by the moving party within thirty (30) days after the filing of
       objections or appeal unless the assigned judge, in writing, extends the time due to
       the inability of the court reporter to complete the transcript of the testimony. A
       praecipe for transcript shall be served in written form on the chief court reporter
       within (3) days after the filing of said objections, appeal, contra objections or
       appeal reply. * * *.

       {¶12} A review of the record reveals that the magistrate’s decision contains an

electronic time stamp indicating that it was filed on February 6, 2018. While the notice of filing

was docketed on the same day and indicates that the magistrate’s decision was filed on February

6, 2018, the certificate of mailing service was not filed until the following day.

       {¶13} Schell filed objections to the magistrate’s decision on February 21, 2018.

Therein, Schell challenged the magistrate’s finding that the Village had not materially breached

the settlement agreement, as well as the magistrate’s ultimate conclusion that he was in contempt

of court. Schell noted that his objections were factual in nature and requested time to file a
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transcript in accordance with Loc.R. 18.05. Schell also requested 14 days to file a memorandum

in support of his objections after the transcript was filed.

       {¶14} After Schell filed his objections, the Village promptly filed a motion to strike the

objections on the basis that they were untimely under Civ.R. 53(D)(3)(b)(i). On March 5, 2018,

the Village filed its own objections to the magistrate’s decision wherein it challenged the purge

conditions set forth by the magistrate. The Village indicated that it would obtain a copy of the

transcript and file a memorandum in support of its objections in accordance with Loc.R. 18.05.

       {¶15} The transcript from the show cause hearing was filed on March 23, 2018. Neither

party filed a supplemental memorandum in support of their objections.

       {¶16} On May 21, 2018, the trial court issued its judgment entry adopting the

magistrate’s decision. As noted above, the trial court reviewed the magistrate’s decision “as if

no timely objections were attempted or filed” and denied the Village’s motion to strike Schell’s

objections as moot. In reaching this position, the trial court found that Schell’s objections were

filed a day late.1 The trial court further underscored that while both parties indicated that their

objections were factual in nature and pledged to file memoranda after the transcript was filed,

neither party supplemented their initial objections after the transcript was made part of the

record. The trial court stated that “in the perfect storm of tardiness in this matter, the court finds

no good cause to continue its normal practice * * *” of “grant[ing] some leeway as to filing

deadlines[.]” The trial court adopted the magistrate’s decision and made several minor

modifications to the purge conditions.




1
  The trial court acknowledged the filing of the transcript but noted that it was also filed one day
late.
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       {¶17} On appeal, Schell does not dispute that the electronic time-stamp on the

magistrate’s decision indicates that it was filed on February 6, 2018, and that, with that date of

filing, his objections would have been untimely by one day. He nevertheless maintains that the

trial court erred in declining to rule on his objections because he received an electronic notice of

filing from the clerk of court suggesting that the magistrate’s decision was filed on a different

date. Specifically, Schell contends that “[the] email notice clearly indicated the magistrate’s

decision was filed on February 7, 2018.” Schell further argues that even assuming arguendo that

his objections were filed one day late, the mistake was made in good faith and that, given the

nearness in time to the filing deadline, the trial court abused its discretion in refusing to consider

his objections.

       {¶18} A review of the record reveals that Schell’s assignment of error is without merit.

Civ.R. 53(D)(3)(b)(i) provides that objections to a magistrate’s decision must be filed “within

fourteen days of the filing of the decision[.]” The magistrate’s decision in this case contains an

electronic time-stamp indicating that it was filed on February 6, 2018.            “The time-stamp

evidences the date of filing and raises a presumption that the document was filed on that date.”

See Haley v. Nomad Preservation, Inc., 9th Dist. Summit No. 26220, 2012-Ohio-4385, ¶ 9. This

Court has recognized that an appellant can refute the presumption regarding the filing date by

pointing to evidence that the document was actually filed on a different date. Id. In Haley, for

example, we sustained the appellant’s assignment of error because the clerk of court’s notice of

filing stated that the magistrate’s decision was filed a day later than what was reflected in the

time-stamp. Id. at ¶ 9-10. Here, the trial court record contains a notice of filing that was

docketed on February 6, 2018. The notice of filing indicates that the magistrate’s decision was
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filed on “02/06/2018[,]” the same date set forth in the time-stamp on the magistrate’s decision.

While Schell suggests he received an email indicating the magistrate’s order was filed the

following day, he has not cited to any part of the trial court record in support of that claim. See

App.R. 16(A)(7). As the record in the case indicates that the magistrate’s decision was filed on

February 6, 2018, the trial court correctly concluded that Schell’s objections filed on February

21, 2018, were untimely by one day.

       {¶19} Though Schell maintains that the trial court should have exercised its discretion to

entertain the objections even if they were untimely, we note that the trial court based its decision

to set aside the objections on a number of factors. In his initial objections, Schell acknowledged

that his arguments were factual in nature and noted that a transcript was necessary to support the

objections. Schell requested 14 days to file a memorandum in support of his objections after the

transcript was filed. Inexplicably, however, Schell never filed a supplemental memorandum

after the transcript was filed.     Under these circumstances, where Schell missed multiple

deadlines relating to his objections, we cannot say that the trial court abused its discretion when

it declined to address Schell’s objections.

       {¶20} The assignment of error is overruled.

                                                III.

       {¶21} Schell’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



HENSAL, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

ALAN M. MEDVICK, Attorney at Law, for Appellant.

BENJAMIN G. CHOJNACKI, Attorney at Law, for Appellee.
