[Cite as King v. Cleavenger, 2017-Ohio-7973.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


L. R. KING, TRUSTEE                             :   JUDGES:
                                                :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                      :   Hon. Craig R. Baldwin, J.
                                                :   Hon. Earle E. Wise, Jr., J.
-vs-                                            :
                                                :
TODD CLEAVENGER, ET AL                          :   Case No. 2017CA00008
                                                :
        Defendants-Appellants                   :   OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Canton Municipal
                                                    Court, Case No. 16CVG6540




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   September 29, 2017




APPEARANCES:

For Plaintiff-Appellee                              For Defendants-Appellants

ANDY A. GINELLA                                     ROBERT P. CAMPBELL
4096 Holiday Street NW                              2800 West Market Street
Canton, OH 44718                                    Akron, OH 44333
Stark County, Case No. 2017CA00008                                                          2

Wise, Earle, J.

         {¶ 1} Defendants- Appellants Todd Clevenger, et. al. appeal from the January 10,

2017 Report of the Magistrate of the Canton Municipal Court, Stark County, Ohio.

Plaintiff-appellee is L.R. King, Trustee.

                             FACTS AND PROCEDURAL HISTORY

         {¶ 2} In February 2016, appellants and appellee entered into a commercial

lease agreement (lease) for the property located at 334-336 4th Street N.W in Canton

(premises). The lease states that the premises would be occupied for use as a winery

and for no other purpose. The lease further states lessee is responsible for compliance

with all statutes, ordinances, and requirements of municipal, state, and federal

authorities.

         {¶ 3} Appellants later discovered that there was no certificate of occupancy for

the leased premises. Based on that discovery, appellants stopped paying rent, and

failed to deposit rent in escrow with the court. In December 2016, appellee therefore

filed a forcible entry and detainer action in the Canton Municipal Court against

appellants, Todd Cleavenger and All Occupants, Island Palm Winery, LLC, seeking to

evict appellants from the premises for failure to pay rent pursuant to the terms of the

lease.

         {¶ 4} In January, 2017, appellants filed an answer and a counterclaim for

alleged damages in the amount of $516,187.81. Appellants admitted in their answer that

they have, since November 1, 2016 unlawfully and forcibly detained from appellee the

subject premises.
Stark County, Case No. 2017CA00008                                                          3


       {¶ 5} A hearing was held on January 6, 2017 before a magistrate on the first

cause of action for writ of restitution. The trial court heard testimony from lessee Todd

Cleavenger. Cleavenger indicated that he began renovations on the premises, but the

project was halted when the city building and inspection department advised they could

not run a business on the premises until they obtained a certificate of occupancy.

       {¶ 6} On January 10, 2017, the magistrate issued a report finding: 1) Appellee

owns the subject property and rents it to appellants at a rate of $700.00 per month; 2)

Appellants failed to pay rent due on November 1, 2016 and thereafter; 3) Appellants

were properly served with notice in writing to vacate the premises; 4) Appellants failed

to vacate the premises in accordance with the notice, and; 5) appellants were duly

served with notice according to law.

       {¶ 7} On the same day, the magistrate ordered a writ of restitution in favor of

appellee, and transferred appellants’ counter claim to the Court of Common Pleas.

Appellants neither filed a motion to set aside the magistrate’s order, nor filed objections

to the magistrate’s decision. Appellants’ counterclaim for damages remains pending.

       {¶ 8} Appellants then filed this appeal, and the matter is now before this court

for consideration. Appellants raise one assignment of error:

                                                 I

       {¶ 9} "THE TRIAL COURT ERRED IN ISSUING A WRIT OF RESTITUTION IN

FAVOR OF PLAINTIFF-APPELLEE."

       {¶ 10} In the sole assignment of error, appellant argues the trial court erred in

issuing a writ of restitution to appellees because appellant raised an equitable defense

to non-payment of rent due to the lack of a certificate of occupancy.
Stark County, Case No. 2017CA00008                                                        4


       {¶ 11} Appellant failed, however, to file objections to the magistrate’s decision as

required by Civ.R. 53. We therefore agree with appellee that appellants have waived

their right to appeal the magistrate’s decision and the trial court’s adoption of the same.

       {¶ 12} As we explained in Lemon v. Lemon, 5th Dist. Stark No. 2010CA00319,

2011-Ohio-1878 ¶ 63-64:



              Civ.R. 53(D)(3)(b)(iv) provides that “[a] party shall not assign as error

       on appeal the court's adoption of any factual findings or legal conclusion * *

       * unless the party has objected to that finding or conclusion * * *.” See, e.g.,

       Stamatakis v. Robinson (January 27, 1997), Stark App.No. 96CA303;

       Kademenos v. Mercedes–Benz of North America, Inc. (March 3, 1999),

       Stark App. No. 98CA50.

              Civ.R. 53(D)(3)(b)(iv) further provides: “Except for a claim of plain

       error, 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 has objected to that finding or conclusion as required by Civ.R.

       53(D)(3)(b).”

              However, the plain error doctrine is not favored and may be applied

       only in the extremely rare case involving exceptional circumstances where

       error, to which no objection was made at the trial court, seriously affects the

       basic fairness, integrity, or public reputation of the judicial process, thereby

       challenging the legitimacy of the underlying judicial process itself. Dorsey v.
Stark County, Case No. 2017CA00008                                                       5

      Dorsey, Fifth Dist.App. No .2009–CA–00065, 2009–Ohio–4894; Goldfuss

      v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099, 1997–Ohio–401, at

      syllabus.



      {¶ 13} Based upon the failure of appellants to object to the magistrate’s decision,

and our failure to find any plain error, we reject appellant’s sole assignment of error and

hereby overrule same.




By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.



EEW/sg 921
