[Cite as Amyx v. Penix-Kinsler, 2015-Ohio-3980.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



Billie Amyx,                                       :

                Plaintiff-Appellant,               :
                                                               No. 14AP-1059
v.                                                 :         (C.P.C. No. 14CV-2485)

Dawn R. Penix-Kinsler et al.,                      :       (REGULAR CALENDAR)

                Defendants-Appellees.              :



                                        D E C I S I O N

                                  Rendered on September 29, 2015


                Butler, Cincione & DiCuccio, Alphonse P. Cincione, and
                Chenee M. Castruita, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

SADLER, J.
        {¶ 1} Plaintiff-appellant, Billie Amyx, appeals the December 4, 2014 judgment of
the Franklin County Court of Common Pleas adopting the decision of the magistrate to
award appellant $5,300.94 in damages for claims of nuisance and trespass. For the
reasons that follow, we affirm the trial court judgment.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On March 6, 2014, appellant filed a complaint alleging nuisance and
trespass arising from appellees' failure to maintain or remove dead tree limbs which hung
over appellant's property line. Service of process was obtained on appellees, but appellees
did not file responsive pleadings or otherwise appear in the action. As a result, on
May 20, 2014, the trial court granted appellant's motion for a default judgment and
request for a damages hearing.
No. 14AP-1059                                                                            2


         {¶ 3} On July 11, 2014, a trial court magistrate conducted a hearing on damages.
Appellant attended the hearing represented by counsel and presented evidence, while
appellees did not attend. The magistrate issued its decision on damages on July 24, 2014,
concluding appellant was entitled to recover $5,300.94 to compensate for paint damage
to appellant's three cars caused by debris from appellees' trees which fell during a 2012
storm.
         {¶ 4} The magistrate further concluded that appellant was not entitled to recover
$14,700 for the cost of a carport, which the magistrate noted that appellant testified he
built to protect his property from debris from his neighbors' trees but removed after the
county fire department labeled it a fire hazard. According to the magistrate, "[r]egardless
of the reason [appellant] built the carport, it was an improvement to his property that
added value to the property. The only reason the carport was lost is that it was deemed a
hazard by the Madison Township Fire Department. Thus, the loss of the value of the
carport was not caused by [appellees]." (Magistrate's Decision on Damages, 3.)
         {¶ 5} As to appellant's request for an award of damages for "ongoing and
continuous mental anguish," the magistrate found that "[t]here was no testimony that
[appellant] experienced, or sought treatment for, mental anguish." (Magistrate's Decision
on Damages, 3.) As such, the trial court declined to award appellant damages related to
mental anguish.
         {¶ 6} On August 5, 2014, appellant filed objections to the magistrate's decision,
taking issue with "the finding and conclusion of law that he is not entitled to recover the
cost of the carport, $14,700.00," and "the finding that he did not experience mental
anguish." (Appellant's Objections to Magistrate's Decision on Damages, 1.) In support of
the objections, appellant attached a memorandum, but did not attach a transcript of the
damages hearing. On December 4, 2014, the trial court overruled appellant's objections
and adopted the magistrate's decision as its own.
II. ASSIGNMENTS OF ERROR
         {¶ 7} Appellant assigns two assignments of error for our review:

               I. THE TRIAL COURT ERRED AS A MATTER OF LAW TO
               THE PREJUDICE OF THE PLAINTIFF WHEN IT FOUND
               THE VALUE OF PROPERTY BOUGHT AS A CONSE-
No. 14AP-1059                                                                              3


              QUENCE OF THE DEFENDANTS' ACTIONS WAS NOT
              COMPENSABLE, SOLELY BECAUSE THE PROPERTY WAS
              REMOVED.

              II. THE TRIAL COURT ERRED AS A MATTER OF FACT TO
              THE PREJUDICE OF THE PLAINTIFF WHEN IT FOUND
              THAT PLAINTIFF WAS NOT TO BE COMPENSATED FOR
              HIS MENTAL ANGUISH WHEN PLAINTIFF'S TESTIMONY
              DEMONSTRATED OTHERWISE.

III. DISCUSSION
       A. Standard of Review
       {¶ 8} An appeal from a trial court's judgment to adopt a magistrate's decision,
which the trial court rendered without the benefit of a transcript, can be reviewed by the
appellate court only to determine whether the trial court's application of the law to its
factual findings constituted an abuse of discretion. State ex rel. Duncan v. Chippewa
Twp. Trustees, 73 Ohio St.3d 728, 730 (1995); Black v. Columbus Sports Network, LLC,
10th Dist. No. 13AP-1025, 2014-Ohio-3607, ¶ 15.           See also Civ.R. 53(D)(3)(b)(iii)
(providing, in pertinent part, that objections to the magistrate's factual findings "shall be
supported by a transcript of all the evidence submitted to the magistrate relevant to [those
findings]" and that "[t]he objecting party shall file the transcript * * * with the court
within thirty days after filing objections unless the court extends the time in writing for
preparation of the transcript"). An abuse of discretion connotes more than an error in
law or judgment; it implies that the court's attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
       B. First Assignment of Error
       {¶ 9} In his first assignment of error, appellant contends the trial court erred in
determining the carport is not compensable "solely" because the carport was removed for
reasons unrelated to appellees' trespass and nuisance. (Appellant's Brief, 4.) Specifically,
appellant seeks compensation for the injury of "the sum spent [on the carport] in an effort
to protect his property." (Appellant's Brief, 11.) In other words, according to appellant, he
is entitled to reimbursement for the carport as a preventative measure and regardless of
its ultimate destruction. For the reasons below, we disagree.
No. 14AP-1059                                                                              4


       {¶ 10} A plaintiff bears the burden of "proving the nature and extent of damages
whether an action sounds in tort or contract." Countywide Home Loans, Inc. v. Huff, 11th
Dist. No. 2009-T-0044, 2010-Ohio-1164, ¶ 47. Compensatory damages are intended to
"redress a plaintiff's concrete loss" and make the plaintiff whole for the wrong caused by
the defendant. State Farm v. Campbell, 123 S.Ct. 1513, 1515-516; Robinson v. Bates, 112
Ohio St.3d 17, 2006-Ohio-6362. See also Allstate Fire Ins. Co. v. Singler, 14 Ohio St.2d
27, 29 (1968) ("to recover compensatory damages, it is necessary to prove that the
trespass proximately caused the harm for which compensation is sought and to prove the
amount of the damage"); Banford v. Aldrich Chem. Co., 126 Ohio St.3d 210, 2010-Ohio-
2470, ¶ 30 ("[Nuisance] must cause damages that are real, material, and substantial.").
However, "the damages awarded should not place the injured party in a better position
than that party would have enjoyed had the wrongful conduct not occurred." Henderson
v. Spring Run Allotment, 99 Ohio App.3d 633, 645 (9th Dist.1994). "[I]n the absence of
an injury, compensatory damages are inappropriate." Pembaur v. Cincinnati, 882 F.2d
1101, 1104 (6th Cir.1989).
       {¶ 11} Here, contrary to appellant's assignment of error, the magistrate did not
base its decision solely on the fact that the carport was removed for reasons unrelated to
appellees' conduct. Prior to addressing removal of the carport, the magistrate specifies
that the carport's installation is an improvement to land that added value to the real
estate. As such, it is evident that the magistrate did not treat installation of the carport
alone as a loss compensable as an injury.
       {¶ 12} The remainder of appellant's argument presupposes a rule of law that
requires a trial court to conclude that sums allegedly spent solely to protect one's property
from trespass or nuisance, but which also increase the value of the property, are
compensable injuries or harms. However, although he bears the burden of affirmatively
demonstrating error on appeal and must adequately support an argument on appeal,
appellant does not cite authority for this presumed rule. White v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 12AP-927, 2013-Ohio-4208, ¶ 11; Cantrell v. Deitz, 10th Dist. No.
12AP-357, 2013-Ohio-1204, ¶ 33; App.R. 16(A)(7). As such, appellant has not established
reversible error.
No. 14AP-1059                                                                                         5


        {¶ 13} Moreover, our independent review of the law fails to locate a rule that
requires trial courts to compensate plaintiffs for improvements installed to prevent
trespass and nuisance. See Badurina v. Elsass, 10th Dist. No. 91AP-402 (Feb. 6, 1992)
(finding guardrails that plaintiff allegedly installed to protect his property from trespass to
not be compensable where the guardrails were unnecessary at the time and another
possible reason for installing the guardrails was not proximately caused by the
defendant's trespass); Gavcus v. Potts, 808 F.2d 596, 598 (7th Cir.1986) (stating
compensatory damages for actual injuries "are generally measured by the cost of restoring
the property to its former condition or by the change in value before and after the
trespass"); Price v. Parker, 10th Dist. No. 99AP-298 (Mar. 9, 2000) ("The award of
money damages based upon a finding of nuisance is discretionary with the trier of fact.");
Rini v. Dyer, 4th Dist. No. 07CA3180, 2008-Ohio-4172, ¶ 33, quoting 88 Ohio Jur.3d
Trespass § 19 (" 'There is no certain rule for ascertaining the damages by trespass upon
real property or person.' ").
        {¶ 14} Further, as previously indicated, a transcript of the damages hearing does
not appear with appellant's objections to the magistrate's decision and is otherwise not
provided in the record on appeal.1 Without a transcript of the damages hearing, we
cannot ascertain facts showing the trial court should have exercised its discretion to
compensate appellant for the cost of the carport under the facts of this case.
        {¶ 15} Finally, appellant's argument that the magistrate's decision contradicts itself
by allowing damages that "created a value in the repaired vehicles" but disallowed
damages for a value added to real estate disregards the difference between a repair, which
restores the property to its pre-trespass value, and an improvement, which increases the
value of the property past its pre-trespass value. Because there is a distinction between
the two concepts, the magistrate's decision is not contradictory.
        {¶ 16} Under these circumstances, we find that the trial court did not act
unreasonably, arbitrarily, or unconscionably in adopting the magistrate's application of
the law to its findings of fact. Therefore, the trial court did not abuse its discretion, and
appellant has not otherwise established reversible error.

1 Even if a transcript had been provided in the record, we would have been precluded from considering it
since a transcript was not filed with the objections to the magistrate's decision. Duncan at 730.
No. 14AP-1059                                                                             6


        {¶ 17} Accordingly, appellant's first assignment of error is overruled.
        C. Second Assignment of Error
        {¶ 18} Defendant's second assignment of error asserts that evidence presented at
the damages hearing sufficiently demonstrates that appellant suffered mental anguish as
a result of appellees' nuisance and trespass. In doing so, appellant relies on testimony at
the damages hearing and presents evidence outside of the magistrate's findings to
conclude that he is entitled to compensation for mental anguish.
        {¶ 19} In the absence of a transcript of the damages hearing, we are unable to
determine whether appellant's assignment of error has merit. Gupta v. Edgecombe, 10th
Dist. No. 05AP-34, 2005-Ohio-6890, ¶ 10, quoting Knapp v. Edwards Laboratories, 61
Ohio St.2d 197, 199 (1980) (" '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.' "); State v. Ishmail, 54 Ohio St.2d 402
(1978), paragraph one of the syllabus ("A reviewing court cannot add matter to the record
before it, which was not a part of the trial court's proceedings, and then decide the appeal
on the basis of the new matter."). Additionally, the magistrate found that appellant
presented no evidence of mental anguish during the damages hearing, and, without a
transcript of affidavit, we must accept the magistrate's findings of fact as true. White at
¶ 13.
        {¶ 20} Accordingly, appellant's second assignment of error is overruled.
IV. CONCLUSION
        {¶ 21} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.

                          DORRIAN and BRUNNER, JJ., concur.
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