[Cite as Brown v. Sigler, 2011-Ohio-4661.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

KENNETH BROWN, et al.                                :

        Plaintiff-Appellant                          :        C.A. CASE NO. 24403

v.                                                   :        T.C. NO.   10CV3494

NORA SIGLER                                          :        (Civil appeal from
                                                              Common Pleas Court)
        Defendant-Appellee                    :

                                                     :

                                             ..........

                                             OPINION

                         Rendered on the      16th   day of     September   , 2011.

                                             ..........

KENNETH BROWN, 145 Hollencamp Avenue, Dayton, Ohio 45417
    Plaintiff-Appellant

J. JOSEPH WALSH, Atty. Reg. No. 0003545, 201 E. Sixth Street, Dayton, Ohio 45402
       Attorney for Defendant-Appellee

                                             ..........

FROELICH, J.

        {¶ 1} Kenneth Brown appeals from a judgment of the Montgomery County Court

of Common Pleas, which adopted a magistrate’s decision and ordered the matter to be

dismissed with prejudice. For the following reasons, the trial court’s judgment will be

affirmed.

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         {¶ 2} The record establishes the following facts. In August 2009, Brown entered

into a purchase agreement with Nora Sigler to buy the property located at 145 Hollencamp

Avenue (consisting of three parcels) for $20,000. Brown agreed to pay $300 per month for

67 months, with no interest.

         {¶ 3} Eight months later, Brown,1 pro se, filed a complaint alleging that he and

Deserrae Eskridge had agreed to purchase a home from Sigler and had expended substantial

time and money to repair the home, but that Sigler had not filed the purchase agreement with

the “Montgomery County Auditor.” (Brown presumably meant the Montgomery County

Recorder, not the Montgomery County Auditor.) Brown sought an order requiring Sigler to

record the purchase agreement or, alternatively, granting Brown “the 15,000.00 that was put

in the house plus the 3,000.00 that Desserae Eskridge paid into the repair, appliance’s [sic],

and paying the company for the work that was done.”

         {¶ 4} Sigler filed an answer, which admitted that the parties had entered into a

contract for the purchase of 145 Hollencamp Avenue for $20,000, with payments of $300

per month and no interest. Sigler stated that the purchase contract “did not conform to the

Ohio law dealing with Land Installment Contracts which is the reason for the document not

being recorded as requested by Plaintiff.” Sigler indicated that she would, at her expense,

prepare a land installment contract that conformed to Ohio law and contained the basic

elements of the agreement between the parties. She asked that the parties execute the land

installment contract, that the contract be recorded, and that the case be dismissed upon


             1
               The named plaintiffs were Brown and Desserae Eskridge, although only Brown signed the complaint. Eskridge did
   not sign the purchase agreement, but Brown refers to Eskridge as a co-purchaser. The record reflects that Eskridge lives at the
   residence with Brown.
                                                                                             3

completion of the execution and recording. On June 10, 2010, Sigler submitted a proposed

land installment contract to the trial court.

        {¶ 5} Brown subsequently filed an “Entrance of Appearance” indicating that “[w]e

are suing for 35,000 for the money we put into the house at 145 Hollencamp Ave., also for

slander, defamation, perjury, illegal lock-out, stress, and harassment by [Sigler’s] attorney.”

Brown asked the court for a trial date so that he could present his paperwork to the court.

Shortly thereafter, Brown retained counsel.

        {¶ 6} In September 2010, Sigler filed a notice of forfeiture. She noted that she had

given Brown “one last opportunity” to execute the proposed land installment contract, to

have it properly notarized, and to deliver it to her attorney, along with the July 2010

payment, by August 12, 2010. Sigler indicated that she would amend her answer and add a

counterclaim with a request for forfeiture if Brown failed to comply with those terms.

        {¶ 7} At this time, Brown’s counsel moved to withdraw from the case due to lack

of payment by Brown. That motion was granted.

        {¶ 8} Sigler subsequently moved to file an amended answer and counterclaim,

stating that Brown had refused to sign the land installment contract, had insisted on “being

given a trial,” and had refused to resume payments on the house. The court granted Sigler’s

motion. The same day that Sigler’s amended complaint and counterclaim were filed, Sigler

moved for a hearing on her forfeiture counterclaim.

        {¶ 9} A bench trial before a magistrate was scheduled for October 18, 2010. A

transcript of that hearing/trial is not in the record, but the record reflects that significant

discussions occurred on October 18 regarding the proposed land installment contract. In her
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subsequent decision, the magistrate summarized the hearing as follows:

          {¶ 10} “At the hearing [on October 18, 2010], both parties were heard on the matter.

 Both parties agreed that a recordable document detailing the parties’ Purchase Agreement

be executed and filed. Plaintiffs were concerned that if they dismissed their complaint prior

to the document being recorded, they may be prejudiced. During the hearing, Mr. Brown

stated ‘We just want it recorded’ and ‘I will drop my lawsuit.’ Mr. Brown also insisted that

the first payment not be due until November 1, 2010, to which the Defendant agreed.

Additionally, the document indicates that the total of $18,800 was due and owing and then

agreed with Mr. Brown that the amount was actually $18,500. The matter having been

settled, the hearing was adjourned with the direction to Mr. Walsh [Sigler’s counsel] to

record the executed contract and to prepare and forward a proposed Agreed Entry, signed by

the parties, dismissing the case as having been settled. Mr. Walsh voiced a concern over

any delay by the Plaintiff to sign the Agreed Entry of Dismissal. This writer informed Mr.

Brown that an Entry would be forthcoming, and that if the recording of the contract had

taken place, he was to sign it and return it to Mr. Walsh, who would then file it with the

Court.”

          {¶ 11} After the hearing, a signed copy of the land installment contract was recorded

with the Montgomery County Recorder. Brown had signed the contract on September 13;

Sigler signed the contract on October 18.

          {¶ 12} On October 26, 2010, Brown filed a motion “for damages” with the court.

The motion reiterated Brown’s assertion that he was suing for $35,000 for various torts. He

further stated that Sigler’s counsel still needed “to Amend the Land Installment Contract to
                                                                                            5

reflect the agreement went into affect [sic] on October 18, 2010, 2nd to reflect the correct

amount of 18,500.00 instead of reflecting 18,800.00 and a grace period of 5 days, and 3rd to

correct dates on lines 2 and 5” of the contract. Brown attached correspondence that he had

received from Sigler’s counsel about the terms of the contract and a proposed dismissal entry

that Sigler’s counsel wanted Brown to sign. Brown did not sign the dismissal entry.

         {¶ 13} Soon thereafter, Sigler moved for an order dismissing the case with prejudice.

 That motion was followed by a notice whereby Sigler acknowledged that the proper balance

due was $18,500 and indicated that a substitute page 2 of the contract was being sent to

Brown.

         {¶ 14} On November 8, 2010, the magistrate issued a decision, dismissing the case.

The magistrate reasoned, in part:

         {¶ 15} “It appears that the parties have both achieved the desired result: a recorded

Land Contract for the subject property. Plaintiffs did file a ‘Notice of Appearance’ raising

claims of money damages. However, this ‘Notice of Appearance’ asked for money against

the Defendant in the alternative to recording the Land Contract. Additionally, the remaining

claims were against the Defendant’s prior attorney, who is not a party to this case. Further,

if the ‘Notice of Appearance’ were to be very liberally construed as an Amended Complaint,

the Plaintiff did not seek leave to file same and did not include Attorney Guenther as a

Defendant. Finally, both parties agreed to drop their respective claims if the Land Contract

were recorded. It has been.

         {¶ 16} “Thus, having been noticed that the Land Contract has been filed, which is

what both parties agreed that they wanted at the October 18, 2010 hearing, and the matter
                                                                                           6

being resolved and settled, this matter is therefore dismissed.”

       {¶ 17} The magistrate referred the parties to Civ.R. 53 and Rule 2.31 of the Rules of

the Montgomery County Common Pleas Court regarding the filing of objections to the

magistrate’s decision. No objections were filed.

       {¶ 18} On November 11, 2010, Sigler filed a motion asking the trial court to dismiss

the action with prejudice. Brown was sent a copy of the motion, but he did not file a

response. On November 30, 2010, the trial court noted that the magistrate had not specified

that the dismissal of the case be with prejudice, and it ordered the dismissal to be “with

prejudice to the filing of a new action.” In a separate but simultaneously filed entry, the

trial court adopted the magistrate’s decision.

       {¶ 19} Brown appeals from the trial court’s judgment.

                                                   II

       {¶ 20} Brown raises two assignments of error and two separate “issues on appeal.”

Both assignments of error allege that the trial court erred by denying Brown a trial. The two

“issues on appeal” state:

       {¶ 21} “1.    The trial court did not have subject matter jurisdiction to entertain

Plaintiff’s motion for a trial. (Assignment of Error No. 1)

       {¶ 22} “2.    The trial court[’]s adopting Magistrate Decision and ruling without

looking at all the facts and difference between the Purchase Agreement and Land Installment

Contract. (Assignment of Error No. 2)”

       {¶ 23} We begin with the matter of the trial court’s subject matter jurisdiction.

       {¶ 24} “‘Jurisdiction’ means ‘the courts’ statutory or constitutional power to
                                                                                          7

adjudicate the case.’ The term encompasses jurisdiction over the subject matter and over

the person. Because subject-matter jurisdiction goes to the power of the court to adjudicate

the merits of a case, it can never be waived and may be challenged at any time. It is a

‘condition precedent to the court’s ability to hear the case.      If a court acts without

jurisdiction, then any proclamation by that court is void.’” (Internal citations omitted.)

Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶11.

         {¶ 25} Common pleas courts were created by the Ohio Constitution. Section 4,

Article IV of the Ohio Constitution. They are courts of general jurisdiction with original

jurisdiction in all civil cases in which the sum or matter in dispute exceeds the exclusive

jurisdiction of the county courts. R.C. 2305.01. See R.C.1907.03(A) (granting exclusive

jurisdiction to county courts in civil cases where the amount in controversy does not exceed

$500). A common pleas court may grant monetary and equitable relief, and it may hear and

decide complaints for injunctive relief. See R.C. 2727.03; Nasal v. Burge, Miami App. No.

08-CA-40, 2009-Ohio-1775, ¶13.

         {¶ 26} Brown invoked the jurisdiction of the common pleas court with the filing of

his complaint. He requested damages of $15,000, plus damages of $3,000 for Eskridge, or

an order requiring Sigler to file the purchase agreement with the Montgomery County

Recorder. Both requests fell within the subject matter jurisdiction of the common pleas

court.

         {¶ 27} Brown’s primary argument is that the trial court erred in adopting the

magistrate’s ruling and dismissing his action with prejudice. Brown states that he signed

the land installment contract (while he was represented by counsel) on the condition that
                                                                                               8

several terms with which he did not agree would be changed. These changes allegedly were

not made. Brown asserts that the magistrate “was not open to all the facts” regarding the

differences between the original purchase contract and the land installment contract.

       {¶ 28} As far as the record reflects, Brown did not voice any objections to settling

the matter during the hearing with the magistrate. Moreover, while Brown disagrees with

the magistrate’s decision and her failure to conduct a trial, he did not file objections to the

magistrate’s decision, despite being specifically directed to the rules. Civ.R. 53(D)(3)(b)

requires a party to file written objections to a magistrate’s decision within 14 days of the

filing of the decision. Objections to factual findings must 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. Civ.R. 53(D)(3)(b)(iii). With the exception of a

claim of plain error, the failure to file an objection under Civ.R. 53(D)(3)(b) waives the right

to “assign as error on appeal the court’s adoption of any factual finding or legal conclusion.”

 Civ.R. 53(D)(3)(b)(iv). Under Civ.R. 53(D)(3)(b)(iv), Brown waived all but plain error by

not objecting to the magistrate’s decision.

       {¶ 29} “The plain-error doctrine is not favored in civil appeals 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.’” Care Risk Retention Group v. Martin, 191 Ohio App.3d 797,

2010-Ohio-6091, ¶80, quoting Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, syllabus.

       {¶ 30} Based on the record before us, we find no plain error in the trial court’s
                                                                                             9

adoption of the magistrate’s decision. We note that the record does not contain a transcript

of the October 18, 2010 hearing.       Absent a transcript, we cannot speculate what the

testimony was at that hearing, and we are constrained to presume the regularity of the

proceedings below unless the limited record for our review affirmatively demonstrates error.

 Banks v. Regan, Montgomery App. No. 21929, 2008-Ohio-188, ¶2.

       {¶ 31} Here, the record reflects that both parties signed a recordable land installment

contract, drafted by Sigler’s counsel in response to Brown’s claims. That land installment

contract was filed with the Montgomery County Recorder on October 18, 2010. Sigler

conceded that the amount owed was $18,500, as Brown asserted, and her attorney sent an

amended page 2 of the land installment contract to Brown. Given these facts, the magistrate

and the trial court could have reasonably concluded that Brown was satisfied with the terms

of the land installment contract (taking into account Sigler’s concession), that the matter was

settled, and that a trial was not warranted. Thus, we find no plain error in the trial court’s

determination that Brown’s claim had been settled to the parties’ satisfaction and that the

matter should be dismissed with prejudice.

       {¶ 32} Brown’s assignments of error are overruled.

                                                  III

       {¶ 33} The trial court’s judgment will be affirmed.

                                         ..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Kenneth Brown
J. Joseph Walsh
                       10

Hon. Connie S. Price
