[Cite as Kramanak v. Myers, 2013-Ohio-2977.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                       JUDGES:
FRANK KRAMANAK                                 :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                        Plaintiff-Appellee     :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 2013CA00010
JOHN MYERS, ET AL.                             :
                                               :
                 Defendants-Appellants         :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Canton Municipal
                                                   Court, Case No. 2012-CVG-06726

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            July 8, 2013



APPEARANCES:

For Plaintiff-Appellee                             For Defendants-Appellants

ALETHA CARVER                                      JOHN MYERS PRO SE
MATTHEW HUNT                                       SANDY MYERS PRO SE
4775 Munson Street N.W.                            P.O. Box 414
Canton, OH 44718                                   Magnolia, OH 44643
[Cite as Kramanak v. Myers, 2013-Ohio-2977.]


Gwin, P.J.

        {¶1}    Appellants appeal the December 31, 2012 judgment entry of the Canton

Municipal Court approving and confirming the magistrate’s report of December 12,

2012.

                                        Facts & Procedural History

        {¶2}    Pursuant to a written lease agreement, appellants entered into possession

of 1119 – 37th Street N.E., Canton, Ohio, 44714, approximately nineteen (19) years ago

as tenants of Joan Kramanak. Appellee Frank Kramanak is the power of attorney for

Joan Kramanak. The parties renewed the original lease several times with the most

recent lease renewal expiring October 1, 2009.            Appellants then remained in the

property as holdover tenants.

        {¶3}    Appellants contacted the Stark County Health Department on June 11,

2012 regarding mold and water issues in the apartment and the continued failure of

appellee to remedy the mold and water issues. The inspector determined there was

mold in the basement laundry room and storage room. The mold was abated on July

11, 2012, after appellee contracted with an outside company to remove the mold.

        {¶4}    On August 16, 2012, appellee gave appellants a thirty-day notice to

vacate the property, which became effective on September 25, 2012. Appellee alleges

that, after the thirty-day notice, appellants failed to pay rent for August, September, and

October, and failed to leave the premises. Appellants state they paid the rent for all

months except September and they vacated the premises by October 1, 2012.

        {¶5}    Appellee filed a forcible entry and detainer action against appellants on

October 12, 2012. At the hearing on the forcible entry and detainer action on October
Stark County, Case No. 2013CA00010                                                       3


22, 2012, the trial court dismissed appellee’s first cause of action for forcible entry and

detainer and continued the second cause of action for damages because appellants

had vacated the premises. On October 25, 2012, appellants filed a counterclaim for

retaliation pursuant to R.C. 5321.02, alleging appellee retaliated against appellants for

reporting appellee to the Stark County Health Department by bringing an action for

possession of the premises.

      {¶6}    An evidentiary hearing on appellee’s second cause of action for damages

and on appellants’ counterclaim for retaliation was held before a magistrate on

November 28, 2012. A magistrate’s report was issued on December 12, 2012. The

magistrate found, from the evidence presented, the parties had a nineteen (19) year

landlord/tenant relationship. The magistrate awarded judgment against appellants in

the amount of $5,011.06 plus costs and interest and dismissed appellants’ counterclaim

for retaliation for lack of evidence. Specifically, the magistrate awarded appellee the

following: $867.00 for clean up/dumpster, $187.06 for glass door thermopane, $212.00

for front storm door, $150.00 for downstairs bedroom door, $150.00 for family room

door, $120.00 for kitchen and bedroom lights, $100.00 for family room paneling, and

$3,650.00 for back rent. The magistrate deducted the $425.00 security deposit from the

total damages awarded. All other alleged damages were found by the magistrate to be

normal wear and tear of a nineteen year tenancy. The magistrate found no evidence to

establish any retaliatory actions on the part of appellee. The trial court judge approved

and confirmed the magistrate’s decision on December 31, 2012. Appellants did not file

objections to the magistrate’s December 12, 2012 decision, but filed an appeal of the

trial court’s December 31, 2012 entry and assign the following errors on appeal:
Stark County, Case No. 2013CA00010                                                        4


       {¶7}   “I. THE DISTRICT COURT ERRED IN HOLDING THAT COURT FINDS

NO EVIDENCE TO ESTABLISH PLAINTIFF VIOLATED SECTION 5321.03 OF OHIO’S

REVISED CODE.

       {¶8}   “II. THE DISTRICT COURT ERRED IN JUDGMENT OF $3,650.00 TOTAL

BACK RENT AWARDED TO PLAINTIFF.

       {¶9}   “III.   THE   DISTRICT     COURT       ERRED      IN   JUDGMENT        THAT

DEFENDANT’S COUNTERLCAIM SHOULD BE DISMISSED.

       {¶10} “IV. THE DISTRICT COURT ERRED IN JUDGMENT ENTITLING

PLAINTIFF $867.00 FOR CLEANUP AND DUMPSTER.

       {¶11} “V. THE DISTRICT COURT ERRED IN AWARDING REPLACEMENT

COSTS, NUMBERED 2, 3, 4, 5, 6 ON MAGISTRATE’S REPORT.”

                                             Analysis

       {¶12} Civil Rule 53 governs proceedings before magistrates.              Civil Rule

53(D)(3)(a)(iii) provides a “magistrate’s decision shall indicate conspicuously that a

party shall not assign as error on appeal the court’s adoption of any factual finding or

legal conclusion, whether or not specifically designated as a finding of fact or conclusion

of law under Civ.R.53(D)(3)(a)(ii), unless the party timely and specifically objects to that

factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).”

       {¶13} However, a party is not prohibited from assigning errors on appeal related

to the court’s adoption of a magistrate’s factual findings if the required language of

Civ.R.53(D)(3)(a)(iii) is not included in the magistrate’s decision. Marble Builder Direct

Int’l Inc. v. Hauxhurst, 11 Dist. No. 2011-L-040, 2012-Ohio-1674.            In this case,

appellants failed to file objections to the magistrate’s decision within the 14 day period
Stark County, Case No. 2013CA00010                                                         5


as provided in Civ.R.53. However, the magistrate’s report failed to include the required

language of Civ.R. 53(D)(3)(a)(iii). Therefore, appellants are permitted to assign errors

related to the trial court’s adoption of the magistrate’s findings of fact and conclusions of

law on appeal.

       {¶14} However, while appellants can assign errors related to the trial court’s

adoption of the magistrate’s findings of fact and conclusions of law on appeal because

of the lack of the required Civ.R. 53(D) language in the magistrate’s report, appellants

have the responsibility of providing this Court with a record of the facts, testimony, and

evidentiary matters which are necessary to support their assignments of error. Wozniak

v. Wozniak, 90 Ohio App.3d 400, 409, 629 N.E.2d 500, 506 (9th Dist. 1993). This is

recognized in App.R. 9(B) which provides, in part: * * * the appellant shall in writing

order from the reporter a complete transcript or transcript of such part of the

proceedings not already on file as he deems necessary for inclusion in the record * * *.”

App.R. 9(C) reads:

              “If no report of the evidence or proceedings at a hearing or trial was

       made, or if a transcript is unavailable, the appellant may prepare a

       statement of the evidence or proceedings from the best available means,

       including his recollection. The statement shall be served on the appellee

       no later than twenty days prior to the time for transmission of the record

       pursuant to App.R. 10, who may serve objections or propose amendments

       to the statements within ten days after service. The statement and any

       objections or proposed amendments shall be forthwith submitted to the

       trial court for settlement and approval. The trial court shall act prior to the
Stark County, Case No. 2013CA00010                                                       6


       time for transmission of the record pursuant to App.R. 10, and, as settled

       and approved, the statement shall be included by the clerk of the trial

       court in the record on appeal.”

       {¶15} On November 28, 2012, the magistrate held a hearing at which he heard

evidence regarding the amount of damages and evidence regarding appellants’

retaliation claim. The record reflects appellants failed to request a transcript of the

November 28, 2012 evidentiary hearing pursuant to App.R. 9(B) or submit a statement

of evidence pursuant to App.R. 9(C). When portions of the transcript necessary for

resolution of assigned errors are omitted from the record, the reviewing court has

nothing to pass upon and thus, as to those assigned errors, the court has no choice but

to presume the validity of the lower court’s proceedings, and affirm. Knapp v. Edwards

Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980). Because appellants have

failed to provide this court with those portions of the transcript necessary for resolution

of the assigned errors, i.e. the transcript of the November 28, 2012 evidentiary hearing

before the magistrate, we must presume the regularity of the proceedings below and

affirm, pursuant to the directive set forth in Knapp.
Stark County, Case No. 2013CA00010                                               7


      {¶16} Accordingly, Appellants’ Assignments of Error I, II, III, IV, and V are

overruled and the judgment of the Canton Municipal Court is affirmed.



By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur



                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            _________________________________
                                            HON. PATRICIA A. DELANEY
WSG:clw 0617
[Cite as Kramanak v. Myers, 2013-Ohio-2977.]


               IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


FRANK KRAMANAK                                  :
                                                :
                           Plaintiff-Appellee   :
                                                :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
JOHN MYERS, ET AL.                              :
                                                :
                                                :
                    Defendants-Appellants       :       CASE NO. 2013CA00010




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

the Canton Municipal Court is affirmed. Costs to appellants.




                                                    _________________________________
                                                    HON. W. SCOTT GWIN


                                                    _________________________________
                                                    HON. WILLIAM B. HOFFMAN


                                                    _________________________________
                                                    HON. PATRICIA A. DELANEY
