[Cite as Stowe v. Chuck's Automotive Repair, L.L.C., 2019-Ohio-1158.]


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

JOHN R. STOWE                                             C.A. No.      29017

        Appellant

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
CHUCK'S AUTOMOTIVE REPAIR, LLC                            BARBERTON MUNICIPAL COURT
                                                          COUNTY OF SUMMIT, OHIO
        Appellee                                          CASE No.   CVF 10501913

                                DECISION AND JOURNAL ENTRY

Dated: March 29, 2019



        TEODOSIO, Judge.

        {¶1}    John R. Stowe appeals the order of the Barberton Municipal Court overruling his

objections to the magistrate’s decision. We affirm.

                                                     I.

        {¶2}    We previously set forth the facts of this case in Stowe v. Chuck’s Automotive

Repair, LLC, 9th Dist. Summit No. 28686, 2018-Ohio-572.

        Beginning in February 2013, Mr. Stowe entered into a commercial lease
        agreement with Chuck's Automotive Repair LLC (“Chuck's Automotive”)
        whereby Chuck's Automotive provided him with storage and warehouse space in
        one of the buildings it owned. Mr. Stowe filed a complaint against Chuck's
        Automotive in October 2015, and an amended complaint in December 2015,
        stating a claim for damage to Mr. Stowe's pickup truck allegedly caused by
        shingles that had come from the roof of the storage space, as well as a consumer
        sales practices claim pursuant to R.C. 1345.03. Chuck's Automotive filed an
        answer to the amended complaint and asserted a counterclaim for Mr. Stowe's
        alleged failure to pay for automotive repairs. A trial was conducted in May 2016,
        and on August 2, 2016, a magistrate's decision was entered in favor of Chuck's
        Automotive as to Mr. Stowe's amended complaint and dismissing the
        counterclaim.
                                                   2


        On August 16, 2016, Mr. Stowe filed his objections to the magistrate's decision,
        stating:

                Plaintiff objects to the [magistrate's] finding that:

                1. Plaintiff failed to prove by a preponderance of the evidence
                   that his truck was damaged by shingles which fell from the
                   roof of Defendant's building;

                2. Plaintiff failed to prove by a preponderance of the evidence
                   that Defendant was negligent in his upkeep and/or repair of the
                   roof;

                3. Defendant failed to claim, argue, or offer any proof that the
                   damage to Plaintiff's truck was from an act of God;

                4. Repairs to Plaintiff's wife's automobile were not a “Consumer
                   Transaction” and therefore not subject to [R.C.] 1345.02 et seq.

        Mr. Stowe noted he would supplement his objections with specific references to
        testimony and exhibits after being provided with the transcript of the proceedings.
        Mr. Stowe's supplement, filed on October 28, 2016, does not state any additional
        objections to the magistrate's decision, not does it address the four original
        objections separately; rather, the supplement is divided into a section setting forth
        the background of the case, a section offering a statement of facts, and a section
        captioned “LAW AND ARGUMENT.”

        On January 3, 2017, the trial court overruled Mr. Stowe's objections “with the
        exception of the ‘act of God’ finding,” which it struck from the magistrate's
        decision on the grounds that such a defense was neither plead nor argued. An
        attempted appeal of that order was dismissed by this Court because the trial court
        had failed to independently enter a judgment. Subsequently, on June 12, 2017, the
        trial court entered judgment in favor of Chuck's automotive and dismissed the
        counterclaim.

Id. at ¶ 2-4.

        {¶3}    Mr. Stowe appealed to this Court, whereupon we affirmed in part and reversed

and remanded in part, concluding that because the trial court indicated that it had deferred to the

magistrate as to the weighing of the evidence, it had failed to conduct an independent review of

the magistrate’s decision as required by Civ.R. 53(D)(4)(d). Id. at ¶ 1, 9. Upon remand, the trial
                                                3


court issued an order overruling Mr. Stowe’s objections and entered judgment adopting the

magistrate’s decision on April 19, 2018. Mr. Stowe appeals, raising eight assignments of error.

                                                II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT FAILED TO MAKE AN INDEPENDENT REVIEW AS
       TO THE OBJECTED MATTERS TO ASCERTAIN THAT THE MAGISTRATE
       PROPERLY    DETERMINED     THE   FACTUAL    ISSUES   AND
       APPROPRIATELY APPLIED THE LAW.

                               ASSIGNMENT OF ERROR TWO

       ON REMAND THE TRIAL COURT AGAIN FAILED TO CONDUCT A
       [CIV.R. 53(D)(4)(d)] REVIEW OF THE MAGISTRATE DECISION AND TO
       MAKE ITS OWN INDEPENDENT DETERMINATION WHETHER OR NOT
       THE MAGISTRATE PROPERLY DETERMINED THE FACTUAL ISSUES
       AND APPROPRIATELY APPLIED THE LAW.

       {¶4}    In his first and second assignments of error, Mr. Stowe argues the trial court erred

because it did not conduct an independent review of the magistrate’s decision. We disagree.

       {¶5}    “[T]he decision to adopt, reject, or modify a magistrate’s decision lies within the

discretion of the trial court and should not be reversed on appeal absent an abuse of discretion.”

Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, ¶ 5.                 An abuse of

discretion implies that a trial court was unreasonable, arbitrary or unconscionable in its

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). As a reviewing court

applying the abuse of discretion standard, we may not substitute our judgment for that of the trial

court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶6}    Civ.R. 53(D)(4)(d) provides: “In ruling on objections, the court shall undertake an

independent review as to the objected matters to ascertain that the magistrate has properly

determined the factual issues and appropriately applied the law.” “The independent review that

is required of the trial court has two components: (1) whether, with respect to the objected
                                                 4


matters, the magistrate properly determined the factual issues before it, and (2) whether the

magistrate appropriately applied the law to those factual determinations.” Lakota v. Lakota, 9th

Dist. Medina No. 10CA0122-M, 2012-Ohio-2555, ¶ 14.

       {¶7}     “Appellate courts * * * presume that a trial court conducted an independent

analysis in reviewing a magistrate’s decision in accordance with Civ.R. 53(D)(4)(d) * * *.”

Faulks v. Flynn, 4th Dist. Scioto No. 13CA3568, 2014-Ohio-1610, ¶ 27. “Accordingly, a party

asserting error bears the burden of affirmatively demonstrating the trial court’s failure to perform

its * * * duty of independent analysis.” Freeman v. Freeman, 9th Dist. Wayne No. 07CA0036,

2007-Ohio-6400, ¶ 53. “An affirmative duty requires more than a mere inference, it requires

appellant to provide the reviewing court with facts to rebut our general presumption.” In re

Taylor G., 6th Dist. Lucas No. L-05-1197, 2006-Ohio-1992, ¶ 21.

       {¶8}    “[T]he mere fact the trial court did not cite any specific portion of a transcript or

exhibit does not demonstrate the court failed to conduct an independent review of the objected

matters as required by Civ.R. 53(D)(4)(d).” In re G.C., 12th Dist. Butler Nos. CA2016-12-237,

CA2016-12-238, CA2016-12-239, and CA2016-12-240, 2017-Ohio-4226, ¶ 18. “While citing

such material would tend to demonstrate that the trial court conducted the requisite independent

review, there is no requirement in Civ.R. 53(D)(4)(d) that the trial court do so.” Hampton v.

Hampton, 12th Dist. Clermont No. CA2007-03-033, 2008-Ohio-868, ¶ 17. Likewise, we cannot

conclude that the trial court did not conduct an independent review simply because it did not

discuss every conceivable characterization of the evidence. See Brandon v. Brandon, 3d Dist.

Mercer No. 10-08-13, 2009-Ohio-3818, ¶ 35.

       {¶9}    In its order, the trial court stated that it had “conducted an independent review of

the objections, [Chuck’s Automotive’s] responses, the transcript of proceedings, and the exhibits
                                                5


submitted by the parties at trial.” Although the trial court did not enumerate and separately

address each of Mr. Stowe’s objections, neither did it merely adopt the magistrate’s decision

without engaging in any analysis. In its order ruling on objections, the trial court pointed to

testimony not referenced by the magistrate’s decision. In addition, the trial court struck the

finding of the magistrate referencing an “act of God,” concluding that Chuck’s Automotive

neither plead nor argued such an affirmative defense.

       {¶10} Mr. Stowe thus bears the burden of affirmatively demonstrating the trial court’s

failure to perform its duty of independent analysis. See Freeman at ¶ 53. As we have noted,

affirmative duty requires more than a mere inference, it requires an appellant to provide this

Court with facts to rebut our general presumption of regularity. See In re Taylor G. at ¶ 21. Mr.

Stowe has not affirmatively demonstrated the trial court’s failure to perform its duty of

independent analysis.    We therefore conclude the trial court did not fail to conduct an

independent review of the magistrate’s decision.

       {¶11} Mr. Stowe’s first and second assignments of error are overruled.

                              ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT FAILED TO CONDUCT A [CIV.R. 53(D)(4)(d)]
       REVIEW OF THE MAGISTRATE’S FINDING THAT PLAINTIFF FAILED
       TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT HIS
       TRUCK WAS DAMAGED BY SHINGLE WHICH FELL FROM THE ROOF
       OF DEFENDANT’S BUILDING.

                              ASSIGNMENT OF ERROR FOUR

       THE TRIAL COURT ERRED WHEN IT FAILED TO FIND BY THE
       MANIFEST WEIGHT OF THE EVIDENCE THAT PLAINTIFF’S TRUCK
       WAS DAMAGED BY SHINGLES WHICH FELL FROM THE ROOF OF THE
       LEASED PREMISES ON NOVEMBER 24, 2014.

       {¶12} In his third and fourth assignments of error, Mr. Stowe argues the trial court failed

to review the magistrate’s finding that he failed to prove by a preponderance of the evidence that
                                                 6


his truck was damaged by shingles that fell from the roof of Chuck’s Automotive’s building and

erred when it failed to find that the truck was damaged by such shingles. We disagree.

       {¶13} The first count of Mr. Stowe’s amended complaint states a cause of action

sounding in negligence, alleging that Chuck’s Automotive “negligently maintained and/or

repaired the roof and roof shingles” of the building at issue, and that “[a]s a direct and proximate

result of Defendant Chuck’s Automotive’s failure to maintain the roof and take proper care to

protect Plaintiff Stowe’s truck from being damaged during repairs, Plaintiff Stowe’s truck was

repeatedly struck by falling debris.”

       {¶14} The magistrate’s decision found that Mr. Stowe “failed to prove by a

preponderance of the evidence that [Chuck’s Automotive] was negligent in its upkeep and/or

repair to the roof of the commercial building.” The magistrate’s decision also found that Mr.

Stowe “failed to prove by a preponderance of the evidence what caused the damages to the

pickup truck.” In his objections to the magistrate’s decision, Mr. Stowe objected to the finding

that “Plaintiff failed to prove by a preponderance of the evidence that his truck was damaged by

shingles which fell from the roof of Defendant’s building.”

       {¶15} Although the trial court did not directly address the magistrate’s finding that Mr.

Stowe had failed to prove by a preponderance of the evidence what caused the damage to his

pickup truck, Mr. Stowe has not shown that he was prejudiced by the trial court’s failure to

specifically address that finding of fact. Even if the trial court had agreed with Mr. Stowe that

the preponderance of the evidence showed that a shingle from the roof of the commercial

building had damaged the vehicle, it would not change the determination by the trial court that

Mr. Stowe had failed to prove that Chuck’s Automotive was negligent in the repair or upkeep of

the roof. We therefore conclude any error by the trial court was harmless. See Civ.R. 61.
                                                7


       {¶16} Mr. Stowe’s third and fourth assignments of error are overruled.

                               ASSIGNMENT OF ERROR FIVE

       THE TRIAL COURT ERRED WHEN IT FOUND THAT THE TESTIMONY
       OF MR. DICE SUPPORTED THE FINDING OF THE MAGISTRATE THAT
       PLAINTIFF FAILED TO MEET ITS BURDEN OF PROOF.

       {¶17} In his fifth assignment of error, Mr. Stowe argues the trial court erred in finding

that the testimony of Eddie Dice supported the magistrate’s finding that Mr. Stowe had failed to

meet his burden of proof. We disagree.

       {¶18} The trial court found that “the testimony of Mr. Eddie Dice and his opinion that

there was no recent replacement of shingles to the roof (Tr. P.17) supports the findings of the

Magistrate that [Mr. Stowe] failed to meet his burden of proof.” Mr. Dice testified that he

viewed an area of the roof where “four shingles * * * had been replaced * * * five to ten years

ago.” He reiterated this testimony in stating that he viewed “an area that had four shingles * * *

replaced maybe five years ago.” When directly asked if the shingles had been replaced recently,

Mr. Dice testified: “Recently, no, it sure did not look like that to me. The question was later

repeated:

       Q. Okay. When you were on the roof and you were inspecting everything that
       was up there, did you observe any area of that roof that appeared to have been
       replaced since 2014?

       A. Recently, no. Nothin’ had been replaced recently.

       {¶19} In reviewing the testimony of Mr. Dice, we find no abuse of discretion by the trial

court in finding that it supported the findings of the Magistrate that Mr. Stowe had failed to meet

his burden of proof.

       Mr. Stowe’s fifth assignment of error is overruled.
                                                 8


                                 ASSIGNMENT OF ERROR SIX

       THE TRIAL COURT ERRED WHEN IT FAILED TO APPROPRIATELY
       APPLY THE LAW WHEN IT PERFORMED AN INDEPENDENT ANALYSIS
       OF THE ISSUES OF THIS CASE.

       {¶20} In his sixth assignment of error, Mr. Stowe argues the trial court erred in applying

the law of torts to the case and contends that Chuck’s Automotive is strictly liable, as a matter of

contract, for the damages allegedly caused by the shingles.

       {¶21} Mr. Stowe raised this argument to this Court in his previous appeal. Stowe v.

Chuck’s Automotive Repair, LLC, 9th Dist. Summit No. 28686, 2018-Ohio-572, ¶ 12. We noted

that Civ.R. 53(D)(3)(b)(ii) provides: “An objection to a magistrate's decision shall be specific

and state with particularity all grounds for objection” and that “[i]ssues that were not raised to

the trial court may not be considered for the first time on appeal.” Stowe at ¶ 13, quoting Rozhon

v. Rozhon, 9th Dist. Medina No. 05CA0075–M, 2006–Ohio–3118, ¶ 18. In overruling the

assignment of error, we concluded that Mr. Stowe’s objections to the magistrate’s decision did

not raise the issue of contract liability. Id. That ruling remains the law of this case. See, e.g.,

Hood v. Diamond Prods., Inc., 137 Ohio App.3d 9, 11 (9th Dist.2000), quoting Pipe Fitters

Union Local No. 392 v. Kokosing Constr. Co., 81 Ohio St.3d 214, 218 (1998) (“[T]he doctrine of

the law of the case * * * establishes that the ‘decision of a reviewing court in a case remains the

law of that case on the legal questions involved for all subsequent proceedings in the case at both

the trial and reviewing levels.’”).

       {¶22} Mr. Stowe’s sixth assignment of error is overruled.

                               ASSIGNMENT OF ERROR SEVEN

       PLAINTIFF OBJECTED TO THE MAGISTRATE DECISION THAT
       PLAINTIFF FAILED TO PROVE DEFENDANT WAS NEGLIGENT IN THE
       REPAIR OR UPKEEP OF THE ROOF AND PRESERVED THAT OBJECTION
       FOR REVIEW.
                                                 9



       {¶23} Mr. Stowe’s seventh assignment of error presents no error assignable to the trial

court for our review. We therefore decline to consider it.

                              ASSIGNMENT OF ERROR EIGHT

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT HELD THAT
       THE EVIDENCE SUPPORTED THE MAGISTRATE’S FINDING THAT
       PLAINTIFF FAILED TO PROVE DEFENDANT WAS NEGLIGENT IN THE
       REPAIR OR UPKEEP OF THE ROOF.

       {¶24} In his eighth assignment of error, Mr. Stowe argues the trial court erred in its

determination that the evidence supported the magistrate’s finding that Mr. Stowe failed to prove

that Chuck’s Automotive was negligent in the repair or upkeep of the roof.

       {¶25} Mr. Stowe objected to the finding of the magistrate’s decision that Mr. Stowe had

“failed to prove by a preponderance of the evidence that [Chuck’s Automotive] was negligent in

its upkeep and/or repair to the roof of the commercial building.” In ruling upon the objection,

the trial court concluded that this finding of the magistrate was supported by the evidence.

       {¶26} An appellant bears the burden of affirmatively demonstrating the error on appeal,

and substantiating his or her arguments in support. Angle v. Western Res. Mut. Ins. Co., 9th Dist.

Medina No. 2729-M, 1998 WL 646548, *1 (Sept. 16, 1998); Frecska v. Frecska, 9th Dist.

Wayne No. 96CA0086, 1997 WL 625488, *2 (Oct. 1, 1997). See also App.R. 16(A)(7) and

Loc.R. 7(B)(7). An appellant’s brief is required to contain argument and law “with citations to

the authorities, statutes, and parts of the record on which the appellant relies.” App.R. 16(A)(7).

This Court may disregard arguments if the appellant fails to identify the relevant portions of the

record from which the errors are based. See App.R. 12(A)(2). See also Smith v. Akron Dept. of

Pub. Health, 9th Dist. Summit No. 21103, 2003-Ohio-93, ¶ 28.
                                                10


         {¶27} Mr. Stowe has failed to support his argument under this assignment of error with

any citations to the parts of the record on which he relies or to any relevant case law. “It is the

duty of the appellant, not this court, to demonstrate his assigned error through an argument that is

supported by citations to legal authority and facts in the record.” State v. Taylor, 9th Dist.

Medina No. 2783-M, 1999 WL 61619, *3 (Feb. 9, 1999). See also App.R. 16(A)(7). “It is not

the function of this court to construct a foundation for [an appellant's] claims; failure to comply

with the rules governing practice in the appellate courts is a tactic which is ordinarily fatal.”

Kremer v. Cox, 114 Ohio App.3d 41, 60 (9th Dist.1996).

         {¶28} Pursuant to App.R. 12(A)(2), this Court “may disregard an assignment of error

presented for review if the party raising it fails to identify in the record the error on which the

assignment of error is based * * * as required by App.R. 16(A).” This rule reflects the principle

that “[a]n appellant bears the burden of affirmatively demonstrating error on Appeal.” In re

Robinson, 9th Dist. Summit No. 20826, 2002 WL 501149, *2 (Apr. 3, 2002). It is not the

obligation of this Court to search the record for evidence to support an appellant’s claim of an

alleged error. In re Williams, 9th Dist. Summit No. 19806, 2000 WL 1349805, *2 (Sept. 20,

2000).

         {¶29} Accordingly, pursuant to App.R. 12(A)(2), we decline to address this assignment

of error.

                                                III.

         {¶30} Mr. Stowe’s first, second, third, fourth, fifth, and sixth assignments of error are

overruled. We decline to address the seventh and eighth assignments of error. The judgment of

the Barberton Municipal Court is affirmed.

                                                                               Judgment affirmed.
                                                11




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Barberton

Municipal Court, 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.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



SCHAFER, P. J.
CARR, J.
CONCUR.


APPEARANCES:

DANIEL W. WALPOLE, Attorney at Law, for Appellant.

L. TERRENCE UFHOLZ, Attorney at Law, for Appellee.
