[Cite as Gumins v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-4342.]

                                                       Court of Claims of Ohio
                                                                            The Ohio Judicial Center
                                                                    65 South Front Street, Third Floor
                                                                               Columbus, OH 43215
                                                                     614.387.9800 or 1.800.824.8263
                                                                                www.cco.state.oh.us




DAVID GUMINS

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2006-06132

Judge Joseph T. Clark
Magistrate Steven A. Larson

JUDGMENT ENTRY




        {¶ 1} This case is sua sponte assigned to Judge Joseph T. Clark to conduct all
proceedings necessary for decision in this matter.
        {¶ 2} On July 28, 2009, the magistrate issued a decision recommending
judgment in favor of defendant. On October 13, 2009, the court overruled plaintiff’s
objections without consideration of the App.R. 9(C) statements filed by the parties
inasmuch as a transcript was “available” for the purposes of Civ.R. 53(D)(3)(b)(iii).
Judgment was rendered in favor of defendant.
        {¶ 3} On July 20, 2010, the Tenth District Court of Appeals reversed the
judgment of this court and remanded the case for further proceedings, stating in
relevant part that “the trial court erred in finding the transcript was available in the face
of plaintiff’s uncontested affidavit of indigency” and that “[o]n remand, the trial court will
have the opportunity to determine whether to use affidavits under Civ.R. 53(D)(3)(b)(iii)
or utilize the statements the parties proffered.” Gumins v. Dept. of Rehab & Corr. (July
20, 2010), Franklin App. No. 09AP-1063, ¶10-11.
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       {¶ 4} Civ.R. 53(D)(3)(b)(iii) provides, in part:
       {¶ 5} “An objection to a factual finding, whether or not specifically designated as
a finding of fact under Civ. R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the
evidence submitted to the magistrate relevant to that finding or an affidavit of that
evidence if a transcript is not available.” (Emphasis added.)
       {¶ 6} As defined by R.C. 2319.02, an affidavit is “a written declaration under
oath, made without notice to the adverse party.”
       {¶ 7} The App.R. 9(C) statements filed by the parties are not sworn statements
and are therefore not “affidavits” as required by Civ.R. 53(D)(3)(b)(iii). Accordingly, the
court finds that plaintiff has failed to properly support his factual objections to the
magistrate’s July 28, 2009 decision.
       {¶ 8} Upon review of the record, the magistrate’s decision and the objections,
the court finds that the magistrate has properly determined the factual issues and
appropriately applied the law. Therefore, the objections are OVERRULED and the court
adopts the magistrate’s decision and recommendation as its own, including findings of
fact and conclusions of law contained therein.            Judgment is rendered in favor of
defendant. Court costs are assessed against plaintiff. The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the journal.




                                           _____________________________________
                                           JOSEPH T. CLARK
                                           Judge

cc:
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Daniel R. Forsythe                     Richard F. Swope
Douglas R. Folkert                     6480 East Main Street, Suite 102
Assistant Attorneys General            Reynoldsburg, Ohio 43068
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
MR/cmd
Filed September 9, 2010
To S.C. reporter September 14, 2010
