[Cite as Carpenter v. Johnson, 196 Ohio App.3d 106, Ohio2011-Ohio-4867.]




       IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

CARPENTER,                                            :

        Appellee,                                     :         C.A. CASE NO. 24128

v.                                                    :         T.C. NO.      09 CVI 2098

JOHNSON,                                              :           (Criminal appeal from
                                                                   Municipal Court)
        Appellant.                                    :

                                                      :

                                           ..........

                                          OPINION

                        Rendered on the           23rd     day of          September   , 2011.

                                           ..........

        K. Philip Callahan, for appellee.

        John J. Scaccia, for appellant.

                                           ..........

FROELICH, J.

        {¶ 1} Kenny Carpenter brought suit against Fred Johnson in the

Miamisburg Municipal Court, Small Claims Division, seeking $2,500 for “[t]he

unlawful conversion of Plaintiff’s Remington Model 1100 Sporting Rifle equipped

with a Cantalever Deer Barrel and Charles Daley Scope.” Carpenter alleged that

Johnson had taken the hunting rifle, at gunpoint, after Carpenter “unknowingly

wandered” onto Johnson’s property, which Carpenter claimed was unmarked and

unfenced.       In response, Johnson asserted that Carpenter had repeatedly
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trespassed on his land in order to hunt deer and that Carpenter had agreed to give

Johnson the rifle in exchange for Johnson’s not contacting the police.

        {¶ 2} After a bench trial before a magistrate, the magistrate found that

Carpenter had given the rifle to Johnson under duress and, therefore, Johnson was

liable to Carpenter in the amount of $2,500, which was the amount Carpenter had

sought in his complaint; Carpenter testified that the rifle’s value was $3,000. The

magistrate noted that Carpenter had not asked for replevin of the rifle, although

Carpenter had testified that he “would rather have the gun than anything.” The

magistrate further noted that Johnson had not brought claims against Carpenter.

The magistrate’s decision was immediately adopted by the trial court.

        {¶ 3} Johnson                timely       objected          to     the      magistrate’s            decision         and,

alternatively, sought relief from that decision and a new trial under Civ.R. 60(B).

Johnson claimed that Carpenter had committed fraud on the court by testifying to

an excessively high value for the rifle. After a hearing on the Civ.R. 60(B) motion,

the magistrate overruled that motion and denied Johnson’s request for a new trial.

The magistrate concluded: “The Court does not believe that Defendant, Fred

Johnson, has established that any fraud was perpetrated upon the Court.

Assuming arguendo that the Defendant was able to establish fraud, his motion for

relief must still fail as he failed to present any evidence of a meritorious defense if
                                                                                                                               1
relief was granted.” No timely objections to the Civ.R. 60(B) decision were filed.


            1
              Johnson moved for relief from the trial court’s judgment under Civ.R. 60(B), claiming that he did not receive notice of
  the magistrate’s decision on his prior Civ.R. 60(B) motion until after the trial court had entered judgment against him. Johnson
  further requested leave to file objections to the magistrate’s decision on the prior Civ.R. 60(B) motion. Those motions remained
  pending when Johnson filed his notice of appeal.
                                                                                      3

       {¶ 4} The trial court subsequently overruled Johnson’s objections to the

magistrate’s decision regarding the merits of Carpenter’s claim and adopted both of

the magistrate’s decisions. The trial court’s judgment was stayed pending appeal.

       {¶ 5} Johnson appeals from the trial court’s judgment.                 His sole

assignment of error states:

       {¶ 6} “The trial court committed prejudicial error by not ordering a new

hearing on damages or a new trial, or at least a factual hearing on appellant’s

* * * Civ.R. 60(b) motion when it was apprised that appellee substantially

misrepresented the value of the property and testified that the property was no

longer in production.”

       {¶ 7} Johnson’s appeal centers around the trial court’s refusal to allow

additional evidence regarding the value of Carpenter’s rifle.        Johnson did not

appeal from the trial court’s findings that Carpenter had given his rifle to Johnson

while under duress and, therefore, that Johnson was liable to Carpenter for the

value of the gun.

       {¶ 8} At the outset, we emphasize that the bench trial was held before a

magistrate, not the trial court. Although magistrates “truly do the ‘heavy lifting,’”

Quick v. Kwiatkowski (Aug. 3, 2001), Montgomery App. No. 18620, “[m]agistrates

are neither constitutional nor statutory courts. Magistrates and their powers are

wholly creatures of rules of practice and procedure promulgated by the Supreme

Court. Therefore, magistrates do not constitute a judicial tribunal independent of

the court that appoints them. Instead, they are adjuncts of their appointing courts,

which remain responsible to critically review and verify the work of the magistrates

they appoint. * * *   The magistrate is a subordinate officer of the trial court, not an
                                                                                        4

independent officer performing a separate function.” Francis v. McDermott, Darke

App. No 1744, 2008-Ohio-6723, ¶ 12, citing Quick.

       {¶ 9} Until a trial court adopts the magistrate’s decision and enters

judgment, the magistrate’s decision is merely an interlocutory recommendation and

is not a final, appealable order. See Civ.R. 53(D)(4)(a) (a “magistrate’s decision is

not effective unless adopted by the court”); Crane v. Teague, Montgomery App. No.

20684, 2005-Ohio-5782. A trial court may enter judgment during the period for

filing objections, but when timely objections are filed, the objections “operate as an

automatic stay of execution of the judgment until the court disposes of those

objections and vacates, modifies, or adheres to the judgment previously entered.”

Civ.R. 53(B)(4)(e)(i). Until the trial court rules on those objections, there is no final,

appealable order.      See, e.g., In re F.D.M., Montgomery App. No. 23021,

2009-Ohio-5609 (addressing Juv.R. 40, which is similar to Civ.R. 53, and R.C.

2505.02); In re C.B., Montgomery App. No. 23615, 2010-Ohio-2129, ¶ 26; Miller v.

Miller, Wayne App. No. 09CA25, 2010-Ohio-1251, ¶ 9.

       {¶ 10} Civ.R. 60(B) permits a party to move for relief from a final judgment.

Because Johnson filed timely objections to the magistrate’s decision simultaneously

with his Civ.R. 60(B) motion, the trial court’s prior adoption of the magistrate’s

decision was stayed, and there was no final judgment in the case until the trial court

later ruled on Johnson’s objections and entered judgment. As a result, at the time

that the magistrate and the trial court addressed Johnson’s Civ.R. 60(B) motion,

Civ.R. 60(B) was not applicable.

       {¶ 11} Even if Civ.R. 60(B) were applicable, we would conclude that the trial
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court did not err in failing to order a new hearing based on Carpenter’s alleged

misrepresentation of the rifle’s value.                        To prevail on a motion for relief from

judgment, the movant must show that (1) he has a meritorious defense or claim to

present if relief were granted; (2) he is entitled to relief under one of the grounds

stated in Civ.R. 60(B)(1) through (5), and (3) his motion is timely. GTE Automatic

Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, at

paragraph two of the syllabus. Civ.R. 60(B) permits trial courts to relieve parties

from a final judgment for the following reasons:                                   (1) “mistake, inadvertence,

surprise or excusable neglect,” (2) newly discovered evidence, (3) fraud,

misrepresentation or other misconduct of an adverse party, (4) the judgment has

been satisfied, released or discharged, or (5) any other reason justifying relief from

the judgment.

        {¶ 12} Johnson sought relief due to fraud on the court, which is addressed

under Civ.R. 60(B)(5). 2                See In re A.K., Champaign App. No. 2011 CA 4,

2011-Ohio-4536, ¶ 7 (fraud on the court is addressed under Civ.R. 60(B)(5),

whereas fraud between the parties falls under Civ.R. 60(B)(3)). “ ‘Fraud upon the

court’ is an elusive concept. * * *                  One commentator, however, had provided this

definition: ‘ “Fraud upon the court” should, we believe, embrace only that species of

fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by

the officers of the court so that the judicial machinery can not perform in the usual

manner its impartial task of adjudging cases that are presented for adjudication.’ ”


            2
              At oral argument, Johnson’s counsel acknowledged that he was not proceeding under Civ.R. 60(B)(2) based on newly
  discovered evidence.
                                                                                       6

Coulson v. Coulson (1983), 5 Ohio St.3d 12, 15, quoting 7 Moore, Federal Practice

(2d Ed.1971) 515, Paragraph 60.33.

       {¶ 13} At oral argument, Johnson’s counsel stated that he was proceeding

under Civ.R. 60(B)(3), which addresses fraud by an adverse party.             “A Civ.R.

60(B)(3) motion for relief from judgment based on fraud, misrepresentation, or other

misconduct by an adverse party ought to be granted where the court is reasonably

well satisfied that the testimony by a material witness is false; that, without it, the

trier of fact might have reached a different conclusion; and that the party seeking

relief was taken by surprise when false testimony was given and was unable to

meet it or did not know of its falsity until after trial.” Goldshot v. Goldshot (Apr. 26,

2002), Montgomery App. No. 19000, 2002 WL 857689.

       {¶ 14} When considered under Civ.R. 60(B)(3) or (5), we agree with the

magistrate that Carpenter’s testimony regarding the value of his rifle did not

constitute fraud.    “In general, the measure of damages is the value of the

converted property at the time it was converted. Just compensation is the fair

market value, or the price at which a willing seller and a willing buyer would settle in

a voluntary sale.” (Citations omitted.) Thompson v. Allen, Montgomery App. No.

23292, 2010-Ohio-1133, ¶ 18. It is well established that the owner of personal

property is competent to testify as to the market value of his or her property. Kelly

v. Kelly, 163 Ohio App.3d 260, 2005-Ohio-4740, ¶ 32, citing Valigore v. Cuyahoga

Cty. Bd. of Revision, 105 Ohio St.3d 302, 2005-Ohio-1733.

       {¶ 15} Carpenter’s complaint requested $2,500 for Johnson’s conversion of

the rifle, and Carpenter testified at trial that the rifle’s value was $3,000. If Johnson
                                                                                                                                 7

believed that the value Carpenter attributed to his rifle was inflated, Johnson could

have questioned Carpenter about the bases for his valuation, and Johnson had the

opportunity at trial to submit evidence to demonstrate that the fair market value was

in fact lower. Moreover, other than noting that he was not represented by counsel

during the bench trial, Johnson has not offered any explanation why he did not

present any evidence at trial regarding the value of Carpenter’s rifle.3

        {¶ 16} In his Civ.R. 60(B) motion, Johnson asserted that the trial court could

take judicial notice of the fair market value of the gun. We disagree. The value of

Carpenter’s gun was not a matter that would be generally known in the court’s

territorial jurisdiction, nor was it “capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned.”                                                     Evid.R.

201(B). To the contrary, a person generally must be qualified as an expert in order

to testify as to the value of property. Thompson at ¶ 19, citing Tokles & Son v.

Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 625-626; Smith v. Padgett

(1987), 32 Ohio St.3d 344, 347.                          An exception exists for owners of personal

property, because the owner, “aided by experience, has some particular means of

forming an intelligent and correct judgment as to the value of the property in

question beyond that which is possessed by people generally.” Squires v. Luckey


            3
               Upon reviewing the magistrate’s decision, the trial court may hear the previously referred matter, take additional
  evidence, or return the matter to the magistrate. Civ.R. 53(D)(4)(b). When ruling on objections, the trial court may hear
  additional evidence, but it may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable
  diligence, have produced that evidence for consideration by the magistrate. Civ.R. 53(D)(4)(d). Even if we were to construe
  Johnson’s Civ.R. 60(B) motion as a request for the trial court to consider additional evidence under Civ.R. 53, he has not shown
  that he could not, with reasonable diligence, have produced the evidence regarding the rifle’s value at trial. We would thus find
  no error in the trial court’s refusal to consider such additional evidence.
                                                                                  8

Farmers Inc., Ottawa App. No. OT-03-046, 2004-Ohio-4919.

      {¶ 17} In short, the trial court did not err in denying Johnson a new trial on

the issue of Carpenter’s damages. Johnson’s assignment of error is overruled.



                                                                Judgment affirmed.

                                   ..........

      GRADY, P.J., and FAIN, J., concur.
