[Cite as Grahams Used Car Outlet v. Stutchman, 2013-Ohio-3609.]


                                      COURT OF APPEALS
                                   RICHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



GRAHAMS USED CAR OUTLET                                  JUDGES:
                                                         Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellant                              Hon. John W. Wise, J.
                                                         Hon. Patricia A. Delaney, J.
-vs-
                                                         Case No. 12CA92
BRYCE STUTCHMAN, et al.

        Defendants-Appellants                            OPINION




CHARACTER OF PROCEEDING:                            Civil Appeal from the Court of Common
                                                    Pleas, Case No. 09CVH851


JUDGMENT:                                           Reversed and Remanded



DATE OF JUDGMENT ENTRY:                             August 19, 2013



APPEARANCES:

For Plaintiff-Appellant                             For Defendants-Appellees

JAMES L. BLUNT, II
445 West Longview Avenue
Mansfield, Ohio 44903
Richland County, Case No. 12CA92                                                          2

Wise, J.

        {¶1}   Plaintiff-Appellant Grahams Used Car Outlet appeals the August 31, 2012,

decision of the Court of Common Pleas of Richland County, Ohio, following a

garnishment hearing.

        {¶2}   Defendant-Appellee Bryce Stutchman has not filed a brief in this matter.

                           STATEMENT OF THE FACTS AND CASE

        {¶3}   The relevant facts and procedural history are as follows:

        {¶4}   In 2008, Defendant, Bryce Stutchman filed an initial Bankruptcy Chapter

13 Plan; 11 U.S.C.S. Chapter 13, which was ultimately dismissed on November 12,

2008.

        {¶5}   On March 26, 2009, Plaintiff-Appellant Grahams Used Car Outlet filed a

Complaint against Defendants Bryce Stutchman and Thomas Eaton.

        {¶6}   On April 3, 2009, Appellant filed a Notice of Dismissal as to Defendant

Eaton.

        {¶7}   On July 17, 2009, Plaintiff-Appellant was granted a judgment against

Defendant Bryce Stutchman in the amount of $1,696.64 plus court costs and interest at

the contractual rate of 24.14%.

        {¶8}   Defendant Stutchman filed a second Chapter 13 bankruptcy on June 26,

2010. Plaintiff-Appellant was listed as an unsecured creditor in the amount of $2,917.69,

which was the amount of the claim allowed.

        {¶9}   Plaintiff-Appellant   received   no   payments   from   Defendant   or   the

Bankruptcy Trustee in the second bankruptcy case. The second bankruptcy was
Richland County, Case No. 12CA92                                                           3

dismissed on September 30, 2011. See the Bankruptcy Order in Case No. 10-34399

attached to Plaintiffs Affidavit in Lieu of Appearance.

      {¶10} On March 16, 2012, Plaintiff-Appellant proceeded to execute on said

judgment by mailing Defendant a "Notice of Court Proceeding to Collect Debt".

      {¶11} On April 3, 2012, Plaintiff-Appellant filed a garnishment on Defendant.

      {¶12} Defendant requested a hearing on the garnishment, pursuant to Ohio

Revised Code §2716.06.

      {¶13} The trial court held a hearing where Defendant presented the trial court

with a title to the vehicle that did not list Plaintiff-Appellant as a lien holder. The trial

court set the matter for an evidentiary hearing to allow for the presentation of evidence

as to why the title did not include Plaintiff-Appellant’s lien.

      {¶14} An evidentiary hearing was held before a Magistrate on August 16, 2012.

      {¶15} At the evidentiary hearing, counsel for Plaintiff-Appellant explained to the

Magistrate that the clear title meant the Defendant had paid the secured portion through

her initial Chapter 13 Plan; therefore, Defendant was entitled to have the lien removed

from the title. (T. at 7).

      {¶16} According to Plaintiff-Appellant, Defendant's initial Bankruptcy Chapter 13

plan included interest at the rate of 10% by the Bankruptcy Court. Plaintiff-Appellant did

not receive any interest on the unsecured portion through the initial Chapter 13

Bankruptcy.

      {¶17} The Complaint in the case sub judice was filed after the first bankruptcy

was dismissed, and judgment was obtained prior to Defendant's second bankruptcy

being filed.
Richland County, Case No. 12CA92                                                    4


      {¶18} Plaintiff-Appellant was included as an unsecured creditor in Defendant's

second Chapter 13 Bankruptcy; 11 U.S.C.S. Chapter 13.

      {¶19} On August 31, 2012, the Magistrate signed and filed a Judgment Entry

finding:

      {¶20} “… Defendant, Bryce Stutchman, having filed Chapter 13 Bankruptcy in

the above matter and having fully paid on the full said secured amount and that there

was no unsecured amounts showing finds in favor or [sic] the Defendant. All funds held

in escrow to be released to the Defendant.”

      {¶21} Appellant now appeals, assigning the following Assignments of Error.

                                ASSIGNMENTS OF ERROR

      {¶22} “I. THE TRIAL COURT ERRED BY HAVING A MAGISTRATE SIGN A

JUDGMENT ENTRY CONTRAY [SIC] TO CIVIL RULE 53.

      {¶23} “II. THE TRIAL COURT ERRED BY ALLOWING OBJECTIONS TO BE

HEARD ON THE JUDGMENT ITSELF, PURSUANT TO ORC §2716.06.

      {¶24} “III. THE TRIAL COURT SUA SPONTE VACATED THE JUDGMENT

CONTRARY TO OHIO CIVIL RULE 60B.

      {¶25} “IV. THE TRIAL COURT ERRED BY RELYING ON THE DEFENDANT'S

BANKRUPTCY WHICH WAS DISMISSED ON TWO OCCASSIONS [SIC] AND FAILED

TO RESTORE ALL PROPERTY RIGHTS TO THE POSITION IN WHICH THEY WERE

FOUND AT THE COMMENCEMENT OF THE BANKRUPTCY CASE.”

                                              I.

      {¶26} In its First Assignment of Error, Appellant argues the Magistrate did not

have authority to sign the judgment entry in this case. We agree.
Richland County, Case No. 12CA92                                                             5


      {¶27} “Where a matter is referred to a magistrate, the magistrate and the trial

court must conduct the proceedings in conformity with the powers and procedures

conferred by Civ.R. 53. ‘Magistrates are neither constitutional nor statutory courts.

Magistrates and their powers are wholly creatures of rules of practice and procedure

promulgated by the Supreme Court.’ ” Yantek v. Coach Builders Limited, Inc., Hamilton

App. No. C–060601, 2007–Ohio–5126, ¶ 9, citing Quick v. Kwiatkowski, Montgomery

App. No. 18620, 2001–Ohio–1498, citing Sec. 5(B), Art. IV, Ohio Constitution.

      {¶28} Civ.R. 53 does not permit magistrates to enter judgments. This is the

function of the judge, not the magistrate. Brown v. Cummins (1997), 120 Ohio App.3d

554, 555, 698 N.E.2d 501; In re K.K., Summit App. No. 22352, 2005–Ohio–3112, at ¶

17; Harkai v. Scherba Industries, Inc. (2000), 136 Ohio App.3d 211, 217–218, 736

N.E.2d 101; Kidd v. Higgins (Mar. 29, 1996), Lake App. No. 95–L–112.

      {¶29} The exercise of the magistrate's powers under Civ.R. 53 is intended only

to “assist courts of record.” Yantek, supra at ¶ 10. “A magistrate's oversight of an issue

or issues, even an entire trial, is not a substitute for the [trial court's] judicial functions

but only an aid to them.' ‘[E]ven where a jury is the factfinder [in a proceeding before a

magistrate], the trial court remains as the ultimate determiner of the case. It is the

primary duty of the trial court, and not the magistrate, to act as the judicial officer.” Id.

citing Hartt v. Munobe, 67 Ohio St.3d 3, 6, 1993–Ohio–177, 615 N.E.2d 617.

      {¶30} One of the acts of the judicial officer is found in Civ.R. 58 where it states

the court must sign the judgment.

      {¶31} Based on the foregoing, we find the Magistrate in this case did not have

the authority to sign the August 31, 2012 Judgment Entry.
Richland County, Case No. 12CA92                                                   6


      {¶32} Appellant’s First Assignment of Error is sustained.

                                           II., III., IV.

      {¶33} Base on our disposition of Appellant’s First Assignment of Error, we find

Appellant’s remaining errors to be moot.

      {¶34} The judgment of the Court of Common Pleas of Richland County, Ohio, is

reversed and this matter is remanded for further proceedings consistent with the law

and this opinion.


By: Wise, J.

Farmer, P. J., and

Delaney, J., concur.



                                             ___________________________________
                                             HON. JOHN W. WISE


                                             ___________________________________
                                             HON. SHEILA G. FARMER


                                             ___________________________________
                                             HON. PATRICIA A. DELANEY

JWW/d 0723
Richland County, Case No. 12CA92                                              7


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




GRAHAMS USED CAR OUTLET                     :
                                            :
       Plaintiff-Appellant                  :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
BRYCE STUTCHMAN, et al.                     :
                                            :
       Defendants-Appellants                :         Case No. 12CA92




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio, is reversed and

remanded for further proceedings consistent with this opinion.

       Costs assessed to Appellant.




                                            ___________________________________
                                            HON. JOHN W. WISE


                                            ___________________________________
                                            HON. SHEILA G. FARMER


                                            ___________________________________
                                            HON. PATRICIA A. DELANEY
