[Cite as Carskadon v. Avakian, 2011-Ohio-4423.]


                                      COURT OF APPEALS
                                  DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

LAURA CARSKADON                                   :
                                                  :
        Plaintiff-Appellee                        :
                                                  :
-vs-                                              :
                                                  :
EARL AVAKIAN, et al.                              :
                                                  :
        Defendants-Appellants                     :

JUDGES:

Hon. Patricia A. Delaney, P.J.
Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.


Case No. 11CAG020018

OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Delaware Municipal Court,
                                                      Case No. 10-CVI-02816




JUDGMENT:                                             AFFIRMED




DATE OF JUDGMENT ENTRY:                               August 22, 2011
APPEARANCES:

For Plaintiff-Appellee                        For Defendants-Appellants

LAURA A. CARSKADON, Pro Se                    EARL AND CAROL AVAKIAN, Pro Se
8824 Locherbie Ct.                            4301 South Ocean Blvd., 6A
Dublin, OH 43017                              North Myrtle Beach, SC 29582

Delaney, P.J.

          {¶1}   Defendants-Appellants Earl and Carol Avakian appeal the February 1,

2011 judgment entry of the Delaware Municipal Court in this Small Claims Division

action.

                         STATEMENT OF THE FACTS AND CASE

          {¶2}   Plaintiff-Appellee Laura A. Carskadon and Appellants entered into a real

estate contract for the sale of Appellants’ home located in Dublin, Ohio. As part of the

real estate contract, the parties agreed that a 42-inch Sony plasma flat-screen television

above the family room fireplace would remain with the home after closing. The closing

date on the real estate purchase was October 27, 2010.            Appellants remained in

possession of the home until November 7, 2010 when Appellee was to simultaneously

take possession.

          {¶3}   On November 6, 2010, Appellants held an auction at their home to sell

some of their possessions. Appellee attended the auction and saw that the flat-screen

television was no longer attached to the wall above the fireplace. She also saw that the

flat-screen television stand, which was stored in the garage, was also missing. Appellee

contacted the auctioneer staff and they recommended that Appellee file a police report.

          {¶4}   Appellee filed a small claims complaint with the Delaware Municipal Court

on December 3, 2010. Appellee alleged breach of contract against Appellants for the
missing television and requested $2,106.42 in damages. The trial court sent out a pre-

trial order setting the case for mediation on January 6, 2011 and a trial date of January

20, 2011.

       {¶5}   Appellants filed a Motion for Continuance on December 17, 2010

requesting the trial court reschedule the trial to January 13, 2011. Appellants relocated

to South Carolina and were not planning to return to Ohio until January 13, 2011. The

trial court granted Appellants’ motion on December 22, 2010 and canceled the

mediation scheduled for January 6, 2011 and rescheduled the trial for January 13, 2011.

       {¶6}   Appellants filed their Answer on January 3, 2011. Appellants argued that

Appellants no longer owned the home or any possessions listed in the real estate

agreement on the date of closing, October 27, 2010 and therefore were not responsible

for any items missing from the home. Appellants filed a second Motion for Continuance

on January 3, 2011. Appellants stated that their trip to Ohio had been rescheduled and

requested the trial court advance the trial to January 20, 2011, the original trial date.

       {¶7}   A bench trial before the magistrate went forward on January 13, 2011.

Appellee was present at the trial but Appellants were not. The Magistrate’s Decision

issued on January 18, 2011 found that a contract existed between the parties,

Appellants’ breached the contract by failing to deliver the television, and Appellants’

allegation that they did not own the television after closing was not a defense to the

breach of contract. The magistrate determined the television was valued at $2,106.00.

The Magistrate’s Decision further denied Appellant’s second Motion to Continue.

       {¶8}   Appellants filed objections to the Magistrate’s Decision on January 31,

2011. Appellants argued the magistrate erred by denying Appellants’ second Motion to
Continue.     Appellants further argued that the magistrate erred when it found that

Appellants were in breach of contract and on its determination of the value of damages

for the television. The record shows that Appellants did not file a transcript of the bench

trial held on January 13, 2011 with their objections to the Magistrate’s Decision.

       {¶9}    On February 1, 2011, the trial court overruled Appellants’ objections to the

Magistrate’s Decision.

       {¶10} It is from this decision Appellant now appeals.

                               ASSIGNMENTS OF ERROR

       {¶11} Appellants raise three Assignments of Error:

       {¶12} “I. THE COURT ERRED AS A MATTER OF CONTRACT LAW [SIC] THE

APPELLANTS DID NOT BREACH THE CONTRACT.

       {¶13} “II. THE COURT ERRED IN NOT GRANTING THE APPELLANTS A

SECOND CONTINUANCE.

       {¶14} “III. THE COURT ERRED IN GRANTING APPELLEE JUDGMENT FOR

$2,106.00 FOR THE SIX YEAR OLD PLASMA TV. THE APPELLEE IF AWARDED

THIS JUDGMENT WOULD BE 'UNJUSTLY ENRICHED'.”

                                           I., III.

       {¶15} We shall address Appellants first and third Assignments of Error

simultaneously because they are interrelated. Appellant argues that the trial court erred

in finding Appellants breached its real estate contract with Appellee and that Appellee

was entitled to damages in the amount of $2,106.00.

       {¶16} Pursuant to the real estate contract, the television was to remain in the

home after closing. The parties closed on the house on October 27, 2010. Appellants
remained in possession of the house until November 7, 2010.              Appellee gained

possession of the house on November 7, 2010.           On November 6, 2010, Appellee

realized the television was not in the home. Appellee brought a breach of contract claim

alleging that Appellants breached the real estate contract because the television set

was not in the home when Appellee took possession of the home.

       {¶17} Appellants stated in their answer that the parties closed on the house on

October 27, 2010 and Appellants simply remained in the home until Appellee took

possession of the home until November 7, 2010. Therefore, Appellee was the owner of

the television when Appellee noticed the television was missing from the home on

November 6, 2010 and Appellee took possession of the home on November 7, 2010.

Appellants conclude they have no responsibility for the loss of the television because

they were no longer owners of said television after October 27, 2010.

       {¶18} A bench trial was held on Appellee’s complaint on January 13, 2011.

Appellants did not file a transcript of the bench trial with their objections to the

Magistrate’s Decision nor did they file a transcript with their appeal.             Civ.R.

53(D)(3)(b)(iii) provides for proceedings in matters referred to magistrates, and states in

pertinent part:

       {¶19} “(3) Magistrate's decision; objections to magistrate's decision.

       {¶20} “(iii) Objection to magistrate's factual finding; transcript or affidavit. An

objection to a factual finding, whether or not specifically designated as a finding of fact

under Civ.R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence

submitted to the magistrate relevant to that finding or an affidavit of that evidence if a

transcript is not available. With leave of court, alternative technology or manner of
reviewing the relevant evidence may be considered. The objecting party shall file the

transcript or affidavit with the court within thirty days after filing objections unless the

court extends the time in writing for preparation of the transcript or other good cause. If

a party files timely objections prior to the date on which a transcript is prepared, the

party may seek leave of court to supplement the objections....”

       {¶21} This Court has held that a transcript of the proceedings is not necessary

for review if the issue presented is a legal question. Engineered Polymers Corp. v.

Henry A. Selinsky, Inc., 5th Dist. No. 2007CA00110, 2008-Ohio-2685, ¶12-15. The

question then is whether Appellants’ arguments present a question of law or fact. We

look to the real estate contract.

       {¶22} If the contract is clear and unambiguous, its interpretation is a matter of

law, and there is no issue of fact to determine. Inland Refuse Transfer Co. v. Browning-

Ferris Industries of Ohio, Inc. (1984), 15 Ohio St.3d 321, 322, 15 OBR 448, 474 N.E.2d

271, citing Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 7 O.O.3d

403, 374 N.E.2d 146. However, where the contract language is reasonably susceptible

of more than one interpretation, the meaning of the ambiguous language is a question

of fact. Ohio Historical Soc. v. Gen. Maint. & Eng. Co. (1989), 65 Ohio App.3d 139, 146,

583 N.E.2d 340.

       {¶23} In this case, we find the language of the contract to be unambiguous and

therefore no transcript of the bench trial is needed for the disposition of this issue. The

real estate contract states, “[t]he TV above the family room fireplace shall remain with

the home after closing.” The parties closed on the property on October 27, 2010. It is

undisputed that the television was not in the home on November 7, 2010, after closing.
Pursuant to the unambiguous language of the real estate contract and regardless of

possession of the home, the contract stated that the television was to be in the home

after closing. There was clear and competent evidence to show that the television was

not in the home after closing. Accordingly, we find the trial court did not err in overruling

Appellants’ objections as to the breach of the contract because the television was not in

the home after closing.

       {¶24} Appellants next argue the trial court erred in its determination of

damages. It is on this issue that the lack of a transcript becomes problematic. The

determination of damages is a factual question.        Pursuant to Civ.R. 53(D)(3)(b)(iii),

Appellants were required to provide a transcript to the trial court in order to support their

objection to the magistrate’s findings of fact.

       {¶25} Our review of the trial court's findings is limited to whether the trial court

abused its discretion in adopting the magistrate's report when the party objecting to a

magistrate's report fails to provide a transcript. State ex rel. Duncan v. Chippewa Twp.

Trustees (1995), 73 Ohio St.3d 728, 730, 654 N.E.2d 1254. In order to find an abuse of

discretion, we must look at the totality of the circumstances in the case sub judice and

determine whether the trial court acted unreasonably, arbitrarily or unconscionably and

there was not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217. When the objecting party fails to provide a transcript of the original

hearing before the magistrate for the trial court's review, the magistrate's findings of fact

are considered established and may not be attacked on appeal. Doane v. Doane (May

2, 2001), 5th Dist. App. No. 00CA21, 2001 WL 474267. Accordingly, we review this

matter only to analyze whether the trial court abused its discretion in reaching specific
legal conclusions based upon the established facts. Sochor v. Smith (June 28, 2000),

5th Dist. No. 00CA00001.

      {¶26} Appellants object the valuation of the missing television. It appears from

the record that Appellee presented evidence as to the value of the television as

$2,106.42. We cannot find the trial court abused its discretion in valuing the television

as to that amount.

      {¶27} Accordingly, Appellants’ first and third Assignments of Error are overruled.

                                           II.

      {¶28} Appellants argue in their second Assignment of Error that the trial court

abused its discretion in denying Appellants’ second Motion to Continue. We disagree.

      {¶29} The decision to grant or deny a motion to continue is a matter entrusted to

the broad discretion of the trial court. Hartt v. Munobe (1993), 67 Ohio St.3d 3, 9, 615

N.E.2d 617. The term abuse of discretion implies the court's attitude is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219,

450 N.E.2d 1140.

      {¶30} In this case, the trial court originally scheduled a bench trial on January

20, 2011.   Appellants filed a motion requesting a continuance because they were

scheduled to be in Ohio on January 13, 2011. The trial court granted the motion to

reschedule the trial to accommodate Appellants’ schedule.

      {¶31} Appellants filed a second Motion to Continue to inform the trial court that

their schedule had changed and a more preferable time for trial would be January 20,

2011 at 2:00 p.m. The January 13, 2011 bench trial went forward and Appellants did
not appear. The trial court denied the motion for continuance within the Magistrate’s

Decision issued on January 18, 2011.

       {¶32} Appellants state they did not appear at the January 13, 2011 hearing

because they did not know if their motion to continue had been granted or denied.

Appellants argue within their brief that the trial court abused its discretion in not

informing Appellants before the January 13, 2011 bench trial that the trial court had

denied their motion to continue.

       {¶33} Appellants have proceeded in this action pro se.          A pro se litigant is

presumed to have knowledge of the law and correct legal procedures so that he

remains subject to the same rules and procedures to which represented litigants are

bound. Kilroy v. B.H. Lakeshore Co. (1996), 111 Ohio App.3d 357, 363, 676 N.E.2d

171. He is not given greater rights than represented parties, and must bear the

consequences of his mistakes.       Sinsky v. Matthews (Dec. 12, 2001), 9th Dist. No.

20499, at 5. When a trial court fails to rule on a pretrial motion, it may ordinarily be

presumed that the court overruled it. State, ex rel. The V Companies, et al. v. Marshall,

81 Ohio St.3d 467, 1998-Ohio-329, 692 N.E.2d 198.

       {¶34} It was Appellants’ motion for continuance of the trial date and therefore

their responsibility to ascertain the status of the motion to continue before the trial date.

We find no abuse of discretion by the trial court to ultimately deny the motion to

continue; nor any unconscionable act of the trial court in failing to inform Appellants of

the status of their motion to continue.

       {¶35} Appellants’ second Assignment of Error is overruled.
       {¶36} The judgment of the Delaware Municipal Court is affirmed.

By: Delaney, P.J.

Farmer, J. and

Wise, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. SHEILA G. FARMER



                                       HON. JOHN W. WISE




           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                            FIFTH APPELLATE DISTRICT



LAURA CARSKADON                            :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :        JUDGMENT ENTRY
                                           :
EARL AVAKIAN, et al.                       :
                                           :
       Defendants-Appellants               :        Case No. 11CAG020018
      For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Delaware Municipal Court is affirmed.

      Costs to Appellants.




                                       HON. PATRICIA A. DELANEY



                                       HON. SHEILA G. FARMER



                                       HON. JOHN W. WISE
