[Cite as Frank v. Manns, 2011-Ohio-3034.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


                                             :   JUDGES:
JOHN R. FRANK, ADMINISTRATOR                 :   W. Scott Gwin, P.J.
WITH WILL ANNEXED OF THE                     :   Sheila G. Farmer, J.
ESTATE OF CLETUS P.                          :   Julie A. Edwards, J.
MCCAULEY, DECEASED                           :
                                             :   Case No. 2010CA00123
                        Plaintiff-Appellee   :
                                             :
-vs-                                         :   OPINION


TAMMY MANNS, et al.,

                 Defendants-Appellants




CHARACTER OF PROCEEDING:                          Civil Appeal from Canton Municipal
                                                  Court Case No. 2009CVG9616

JUDGMENT:                                         Dismissed

DATE OF JUDGMENT ENTRY:                           June 20, 2011

APPEARANCES:

For Plaintiff-Appellee                            For Defendants-Appellants

JOHN R. FRANK                                     JEFFRY V. SERRA
T.K. Harris Building – Suite 102A                 The Ferruccio Law Firm, LPA
3930 Fulton Drive, N.W.                           220 Market Avenue, South
Canton, Ohio 44718                                Suite 400
                                                  Canton, Ohio 44702
[Cite as Frank v. Manns, 2011-Ohio-3034.]


Edwards, J.

        {¶1}    Defendants-appellants, Tammy and Matthew Manns, appeal from the April

23, 2010, Judgment Entry of the Canton Municipal Court overruling their objection to the

Magistrate’s Decision. Appellee is John Frank, Administrator of the Estate of Cletus

McCauley.

                               STATEMENT OF THE FACTS AND CASE

        {¶2}    Appellants Tammy and Matthew Manns entered into a rental agreement

with Cletus McCauley for specified property and resided at the same for approximately

10 years. After McCauley passed away, Paula Clark, as Executrix of his Estate,1 filed a

forcible entry and detainer action against appellants on December 21, 2009, in Canton

Municipal Court seeking a writ of restitution and damages.

        {¶3}    The Magistrate, pursuant to a report filed on January 11, 2010,

recommended that a writ of restitution be entered and the cause of action for damages

be continued. Pursuant to a Judgment Entry filed on January 14, 2010, the trial court

approved and confirmed the Magistrate’s report. A writ of restitution in favor of

McCauley’s estate was issued on January 14, 2010.

        {¶4}    On March 31, 2010, a hearing on the issue of damages was held before a

Magistrate. The Magistrate, in a report filed on April 7, 2010, recommended that

judgment be entered in favor of appellee and against appellants in the amount of

$5,963.00 plus costs and interest. The Magistrate found that “[t]estimony and exhibits

presented during the hearing indicate the following items are owed and or are damaged

beyond normal wear and tear:


1
 John Frank, as Administrator of the Estate of Cletus McCauley, filed a Notice as the Substitute Fiduciary
and Substitute Defendant-Appellee on August 11, 2010.
Stark County App. Case No. 2010CA00123                                               3


      {¶5}   “1. (5) Interior doors = $1,000

      {¶6}   “2. Carpet = $1,343

      {¶7}   “3. Rear door = $575

      {¶8}   “4. Paneling repair = $100

      {¶9}   “5. Light fixtures = $300

      {¶10} “6. Stove/refrigerator = $275

      {¶11} “7. Ceiling work = $150

      {¶12} “8. Siding repair = $450

      {¶13} “9. Front door = $575

      {¶14} “10. Trash haul = $375

      {¶15} “11. Labor = $600

      {¶16} “12. Rent = $600

      {¶17} “Total = $5,963

      {¶18} The Magistrate, in his report, further found other alleged damages were

not supported by the evidence and also held that appellee was not entitled to punitive

damages or attorney fees.

      {¶19} On April 20, 2010, appellants filed an objection to the Magistrate’s

Decision. Appellants, in their objection, argued that, at the damages hearing, appellee

submitted a “Quote” (Exhibit M) from Tim Cugini breaking down costs to repair certain

items within the rental house. Appellants maintained that they objected at the hearing

to the admission of this exhibit on the basis that it was not properly authenticated

because Cugini was not present at the damage hearing to testify and because the

document was hearsay. Appellants argued that the Magistrate, therefore, should not
Stark County App. Case No. 2010CA00123                                                    4


have considered the same in awarding damages to appellee. Appellants, in their

objection, further argued that based on the testimony of Paula Clark, none of the items

contained in the “Quote” were ever actually repaired and that no evidence was proffered

as to the actual damages incurred.

       {¶20} As memorialized in a Judgment Entry filed on April 23, 2010, the trial court

overruled the objection.

       {¶21} Appellants now raise the following assignment of error on appeal:

       {¶22} “THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANTS’

OBJECTIONS TO THE MAGISTRATE’S DECISION DATED APRIL 7, 2010 WHEREIN

THE MAGISTRATE ADMITTED AND AWARDED DAMAGES TO APPELLEE BASED

UPON AN UNAUTHENTICATED, HEARSAY DOCUMENT.”

       {¶23} However, before addressing the merits of appellants’ arguments, we raise,

sua sponte, our concern as to whether this Court has jurisdiction to hear this appeal.

       {¶24} Ohio Civ. R. 53(D) reads:

       {¶25} “(4) Action of court on magistrate's decision and on any objections to

magistrate's decision; entry of judgment or interim order by court.

       {¶26} “(a) Action of court required. A magistrate's decision is not effective unless

adopted by the court.

       {¶27} “ * * *

       {¶28} “(e) Entry of judgment or interim order by court. A court that adopts,

rejects, or modifies a magistrate's decision shall also enter a judgment or interim order.”

       {¶29} The trial court's April 23, 2010, Judgment Entry states as follows:

“Defendant’s Objection to the Magistrate's Decision filed April 20, 2010 is not well-taken;
Stark County App. Case No. 2010CA00123                                                    5


Wherefore, Defendant’s Objection to the Magistrate’s Decision was reviewed and is

overruled.”

         {¶30} The trial court failed to recite that it was approving and adopting the

Magistrate's Decision. While we recognize this was in all likelihood merely an oversight,

we, nevertheless, find that such omission fails to comply with the mandate of Civ. R.

53(D). Accordingly, we find this Court lacks jurisdiction because no final appealable

order exists. See Cropley v. Cappell-Bovee, Stark Appeal No. 2007CA00266, 2008-

Ohio-6800, and Yoho v. Turcott, Richland App. No. 08CA30, 2009-Ohio-178.

         {¶31} Appellants’ appeal is, therefore, dismissed for a want of a final, appealable

order.




By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

                                                     ______________________________



                                                     ______________________________



                                                     ______________________________

                                                                  JUDGES

JAE/d0204
[Cite as Frank v. Manns, 2011-Ohio-3034.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


JOHN R. FRANK, ADMINISTRATOR                    :
WITH WILL ANNEXED OF THE                        :
ESTATE OF CLETUS P.                             :
MCCAULEY, DECEASED                              :
                                                :
                           Plaintiff-Appellee   :
                                                :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
TAMMY MANNS, et al.,                            :
                                                :
                    Defendants-Appellants       :       CASE NO. 2010CA00123




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

appeal of the Canton Municipal Court is dismissed. Costs assessed to appellants.




                                                    _________________________________


                                                    _________________________________


                                                    _________________________________

                                                                 JUDGES
