[Cite as Bhau v. PEM Properties, Ltd., 2016-Ohio-7377.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 RAJINDER BHAU, ET AL.                                :   JUDGES:
                                                      :
                                                      :   Hon. W. Scott Gwin, P.J.
        Plaintiffs-Appellees                          :   Hon. Patricia A. Delaney, J.
                                                      :   Hon. Craig R. Baldwin, J.
 -vs-                                                 :
                                                      :   Case No. 2015CA00214
                                                      :
 PEM PROPERTIES, LTD., ET AL.                         :
                                                      :
                                                      :
        Defendants-Appellants                         :   OPINION


CHARACTER OF PROCEEDING:                                  Appeal from the Stark County Court of
                                                          Common Pleas, Case No.
                                                          2014CV00193



JUDGMENT:                                                 AFFIRMED




DATE OF JUDGMENT ENTRY:                                   October 11, 2016




APPEARANCES:

 For Plaintiffs-Appellees:                                For Defendants-Appellants:

 E.K. WRIGHT                                              MORRIS H. LAATSCH
 P.O. Box 711                                             209 South Main St., 3rd Floor
 New Philadelphia, OH 44663                               Akron, OH 44308
Stark County, Case No. 2015CA00214                                                        2

Delaney, J.

       {¶1} Defendants-Appellants PEM Properties, Ltd. and Paul Malagrida appeal the

October 27, 2015 judgment entry of the Stark County Court of Common Pleas.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} On January 22, 2014, Plaintiffs-Appellees Rajinder Bhau and Rajvir Gaur

dba Kabob and Curry filed a complaint for breach of contract and fraud against

Defendants-Appellants PEM Properties, Ltd. and Paul Malagrida in the Stark County

Court of Common Pleas. PEM Properties filed an answer and counterclaim on February

18, 2014.

       {¶3} The matter was referred to a magistrate. The magistrate held a non-jury trial

on the parties’ complaint and counterclaim on September 10, 2014 and September 11,

2014. On September 12, 2014, Bhau and Gaur filed a request for a transcript of the trial.

       {¶4} The trial court ordered the parties to file proposed findings of fact and

conclusions of law, which the parties filed in October.

       {¶5} On June 30, 2015, the magistrate issued her decision. She found in favor

of PEM Properties against Bhau and Gaur on all claims in the Plaintiffs’ complaint. She

also found that PEM Properties was not entitled to judgment on its counterclaim, therefore

finding in favor of Bhau and Guar against PEM Properties on all claims in the

counterclaim.

       {¶6} PEM Properties filed objections to the magistrate’s decision on July 9, 2015.

It requested an extension of time to file its memorandum in support of its objections to the

magistrate’s decision. The trial court granted the extension. PEM Properties filed its
Stark County, Case No. 2015CA00214                                                           3


memorandum in support of its objections to the magistrate’s decision. Bhau and Guar

filed a response to the objections to the magistrate’s decision.

       {¶7} On October 27, 2015, the trial court overruled the objections of PEM

Properties to the magistrate’s decision. The trial court based its decision to overrule the

objections on the failure of PEM Properties to file a transcript of the non-jury trial with the

trial court pursuant to Civ.R. 53(D)(3)(b)(iii). The trial court acknowledged the trial

transcript was requested and a copy was paid for, but the parties did not file the transcript

with the court. The trial court determined PEM Properties failed to support its objections

to the magistrate’s findings of fact and resulting conclusions of law.

       {¶8} PEM Properties filed a motion for leave to file the transcript and a motion to

reconsider on November 20, 2015. It filed its notice of appeal on November 30, 2015.

                                ASSIGNMENT OF ERROR

       {¶9} PEM Properties raises one Assignment of Error:

       {¶10} “THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE

DEFENDANT PEM PROPERTIES, LTD. OVERRULING THE OBJECTION OF THE

DEFENDANT PEM PROPERTIES, LTD. TO THE MAGISTRATE’S DECISION BASED

UPON THE FAILURE OF THE DEFENDANT TO FILE A COPY OF THE TRIAL

TRANSCRIPT WITH THE COURT WHEN THE TRIAL COURT WAS AWARE THAT A

TRANSCRIPT OF THE TRIAL TESTIMONY HAD IN FACT BEEN PREPARED, WAS

AVAILABLE FOR REVIEW BY THE TRIAL COURT IN REVIEWING DEFENDANT’S

OBJECTIONS TO THE MAGISTRATE’S REPORT.”
Stark County, Case No. 2015CA00214                                                            4


                                         ANALYSIS

       {¶11} PEM Properties argues the trial court erred when it overruled its objections

to the magistrate’s decision based on its failure to file a transcript. PEM Properties states

the issue in this case is whether the failure of the objecting party to formally file the

transcript with the trial court constitutes a failure to comply with Civ.R. 53(D)(3)(b)(iii).

Upon our review, we find the objecting party’s failure to file a transcript with the trial court

is in contravention of the plain language of Civ.R. 53(D)(3)(b)(iii).

       {¶12} Civ. R. 53(D) states in pertinent part:

       (3) Magistrate's decision; objections to magistrate's decision

       ***

       (b) Objections to magistrate's decision

       ***

       (iii) Objection to magistrate's factual finding; transcript or affidavit. 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. With leave of court,

       alternative technology or manner of reviewing the relevant evidence may

       be considered. The objecting party shall file the transcript or affidavit with

       the court 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.
Stark County, Case No. 2015CA00214                                                            5


       {¶13} This Court has held, “where an appellant fails to provide a transcript of the

original hearing before the magistrate for the trial court's review, the magistrate's findings

of fact are considered established and may not be attacked on appeal.” Murray v. Miller,

5th Dist. Richland No. 15CA02, 2015-Ohio-3726, ¶ 35; Doane v. Doane, 5th Dist.

Guernsey No. 00CA21, 2001 WL 474267 (May 2, 2001); State v. Leite, 5th Dist.

Tuscarawas No. 1999AP090054, 2000 WL 502819 (Apr. 11, 2000); Fogress v. McKee,

5th Dist. Licking No. 99CA15, 1999 WL 668580(Aug. 11, 1999); and Strunk v. Strunk, 5th

Dist. Muskingum No. CT96–0015, 1996 WL 787981(Nov. 27, 1996). When a party

objecting to a magistrate's decision has failed to provide the trial court with the evidence

and documents by which the trial court could make a finding independent of the report,

the appellate court is precluded from considering the transcript of the hearing submitted

with the appellate record. Green Tree Servicing, L.L.C. v. St. John, 5th Dist. Stark No.

2013 CA 00092, 2015-Ohio-1111, ¶ 18 citing State ex rel. Duncan v. Chippewa Twp.

Trustees, 73 Ohio St.3d 728, 1995-Ohio-272, 654 N.E.2d 1254.

       {¶14} The parties agree the court reporter prepared a transcript of the non-jury

trial. There is no dispute the transcript was not filed with the trial court. PEM Properties

argues the trial court was aware a transcript was prepared and should have referred to

that transcript when it considered PEM Properties’ objections to the magistrate’s decision.

Civ.R. 53(D)(3)(b)(iii) does not place the burden on the trial court to obtain a transcript if

a party objects to a magistrate’s decision. The plain language of Civ.R. 53(D)(3)(b)(iii)

requires the objecting party file a transcript with the trial court to support its objections to

a factual finding:
Stark County, Case No. 2015CA00214                                                           6


       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. With

       leave of court, alternative technology or manner of reviewing the relevant

       evidence may be considered. The objecting party shall file the transcript or

       affidavit with the court within thirty days after filing objections unless the

       court extends the time in writing for preparation of the transcript or other

       good cause. (Emphasis added.)

       {¶15} “Where a transcript can be produced, the transcript is available and must

be provided to the trial court in support of objections to a magistrate’s decision.” JPMorgan

Chase Bank v. Liggins, 10th Dist. Franklin Case No. 15AP-242, 2016-Ohio-3528, ¶ 10

citing Gladden v. Grafton Corr. Inst., 10th Dist. No. 05AP–567, 2005–Ohio–6476, ¶ 7. It

is the responsibility of the objecting party to provide the trial court with the transcript. We

find the trial court did not err when it found that PEM Properties failed to file a transcript

in support of its objections to the magistrate’s findings of fact.

       {¶16} PEM Properties does not raise an Assignment of Error asking this Court to

examine whether the trial court abused its discretion in reaching specific legal conclusions

based on established facts. Accordingly, the sole Assignment of Error of PEM Properties

is overruled.
Stark County, Case No. 2015CA00214                                                 7


                                   CONCLUSION

       {¶17} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Baldwin, J., concur.
