[Cite as Hudson v. Lager & Vine Gastro Pub & Wine Bar, 2018-Ohio-2802.]


STATE OF OHIO                   )                       IN THE COURT OF APPEALS
                                )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                )

SELMA G. HUDSON                                         C.A. No.          17CA0085-M

        Appellant

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
LAGER & VINE GASTRO PUB & WINE                          MEDINA MUNICIPAL COURT
BAR, et al.                                             COUNTY OF MEDINA, OHIO
                                                        CASE No.   16 CVH 00618
        Appellants

                               DECISION AND JOURNAL ENTRY

Dated: July 16, 2018



        SCHAFER, Judge.

        {¶1}    Plaintiff-Appellant, Selma Hudson, appeals the decision of the Medina Municipal

Court granting summary judgment in favor of Defendants-Appellees, Lager & Vine Gastro Pub

& Wine Bar and Lager & Vine, LLC (collectively “Lager & Vine”). This Court affirms.

                                                   I.

        {¶2}    On December 17, 2014, Ms. Hudson was a patron at Lager & Vine’s dining

establishment. Ms. Hudson used Lager & Vine’s restroom facilities, wherein she slipped and fell

on a wet spot. Ms. Hudson sustained significant physical injuries as a result of her fall.

        {¶3}    Ms. Hudson filed her complaint against Lager & Vine on April 11, 2016, alleging

a claim of negligence. Thereafter, Lager & Vine moved the trial court for summary judgment on

Ms. Hudson’s claims. Ms. Hudson opposed the motion for summary judgment, and filed a

“motion to strike [Lager & Vine]’s affidavit of Clifton M. Cravens and [Lager & Vine]’s

Exhibits 1-8 referenced therein and all related references in the record[.]”
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       {¶4}    On May 19, 2017, the magistrate issued a decision finding no genuine issues of

material fact were in dispute, and summary judgment should be granted in favor of Lager & Vine

as a matter of law because the hazard was “observable, open, and obvious.” In the decision, the

magistrate stated that Ms. Hudson’s “[m]otion to [s]trike the deposition and deposition exhibits 1

through 8 of Clifton M. Cravens is granted.” The magistrate indicated that in ruling on the

summary judgment motion the court was considering, inter alia, “Hudson deposition exhibits 1

through 8, which [Ms. Hudson] authenticated in her deposition.”

       {¶5}    The decision contained the following language:

       EITHER PARTY MAY FILE OBJECTIONS TO A MAGISTRATE’S
       DECISION. ANY OBJECTIONS MUST BE FILED WITHIN FOURTEEN
       (14) DAYS OF THE DATE THE MAGISTRATE’S DECISION WAS
       FILED. OBJECTIONS MUST BE ACCOMPANIED BY A $15.00 FILING
       FEE. A COPY OF A TRANSCRIPT OF THE ORIGINAL PROCEEDINGS
       PREPARED BY A CERTIFIED COURT REPORTER MUST BE FILED
       WITHIN THIRTY (30) DAYS OF THE DATE THE OBJECTIONS WERE
       FILED. THE OBJECTING PARTY MUST SERVE A COPY OF THE
       OBJECTIONS ON THE OTHER PARTIES BY REGULAR MAIL AND
       CERTIFY IN WRITING ON THE OBJECTIONS THAT THIS WAS
       DONE. IF NO OBJECTION IS FILED, THIS DECISION WILL BECOME
       THE FINAL DECISION OF THE COURT.

       UNLESS A PARTY TIMELY AND SPECIFICALLY OBJECTS TO A
       FACTUAL FINDING OR LEGAL CONCLUSION IN THE
       MAGISTRATE’S DECISION AS REQUIRED BY CIVIL RULE 53(D)(3),
       NO PARTY MAY ASSIGN AS ERROR ON APPEAL THE COURT’S
       ADOPTION OF ANY FACTUAL FINDING OR LEGAL CONCLUSION.
       ANY REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF
       LAW MUST BE FILED WITHIN SEVEN (7) DAYS OF THE DATE THE
       MAGISTRATE’S DECISION WAS FILED.

Rather than issuing a separate entry, the trial judge attempted to adopt the May 19, 2017

magistrate’s decision as the order of the court within that same journal entry.

       {¶6}    On June 5, 2017, Ms. Hudson filed objections to the magistrate’s decision of May

19, 2017. Lager & Vine then objected to Ms. Hudson’s objections to the magistrate’s decision as
                                                3


being untimely filed. The trial court had not yet ruled on the objections when, on June 15, 2017,

Ms. Hudson filed a notice of appeal of the May 19, 2017 decision.

       {¶7}    On September 25, 2017, this Court dismissed the appeal in Case No. 17CA0051-

M, because the trial court attempted to adopt the decision of the magistrate as the order of the

court without issuing its own judgment. This Court determined the trial court had not yet entered

a final appealable order, and concluded that we lacked jurisdiction to consider the appeal.

       {¶8}    Following the dismissal of the attempted appeal, Ms. Hudson moved the trial

court for a final and appealable judgment entry. The trial court entered a separate judgment on

November 9, 2017. In that judgment entry, the trial court declined to consider Ms. Hudson’s

objections to the May 19, 2017 magistrate’s decision, finding that they were not timely filed.

       {¶9}    Regarding Ms. Hudson’s motion to strike, the trial court found that the magistrate

correctly granted the motion, but incorrectly stated “‘the deposition and deposition exhibits’

were stricken, instead of stating that the affidavit and [Lager & Vine’s] Exhibits 1-8 as

referenced therein are stricken.” (Emphasis sic.) The trial court then modified the magistrate’s

decision to reflect that the court was striking “the affidavit of Clifton M. Cravens and [Lager &

Vine’s] Exhibits 1-8 as referenced therein, because the affidavit did not demonstrate personal

knowledge of the affiant, and the exhibits were not attached to the affidavit.” The trial court

clarified it was striking the Cravens affidavit and Exhibit’s 1 through 8 “only to the extent

referenced in the affidavit[.]”

       {¶10} As to the summary judgment motion, the trial court adopted the magistrate’s

decision. In doing so, the court found that Ms. Hudson had an unobstructed view of the hazard

she attributed as the cause of her slip and fall. The trial court further found that the hazard was

observable, open, and obvious; therefore, Lager & Vine owed no duty of care to Ms. Hudson.
                                                4


Concluding that no genuine issue of material fact existed, the trial court found that Lager & Vine

was entitled to judgment as a matter of law and entered judgment in favor of Lager & Vine,

dismissing Ms. Hudson’s complaint.

       {¶11} Ms. Hudson timely filed this appeal of the trial court’s November 9, 2017

judgment entry, raising four assignments of error for our review. For ease of analysis, we elect

to consider the assignments of error out of order and consolidate our review of the third and

fourth assignments.

                                                II.

                                     Assignment of Error I

       The trial court erred as a matter of law in ruling that [Ms. Hudson]’s
       objections to the magistrate[’s] decision were untimely[.]

       {¶12} Ms. Hudson argues that the trial court erred by finding that her objections to the

magistrate’s decision, filed Monday, June 5, 2017, were not timely filed. Pursuant to Civ.R.

53(D)(3)(b)(i) “[a] party may file written objections to a magistrate's decision within fourteen

days of the filing of the decision, whether or not the court has adopted the decision during that

fourteen-day period as permitted by Civ.R. 53(D)(4)(e)(i).”

       {¶13} Ms. Hudson acknowledges that she had fourteen days from the filing of the May

19, 2017 magistrate’s decision to file her objections to the decision. Ms. Hudson takes issue,

however, with the trial court’s statement in the November 9, 2017 judgment entry indicating that

her fourteen day period expired on “Friday, June 3, 2017.” Maintaining that her fourteen days

did expire on June 3, 2017, she contends that date fell on a Saturday and not a Friday as stated in

the judgment entry. Therefore, it is Ms. Hudson’s contention that, pursuant to Civ.R. 6(A), she

had until Monday, June 5, 2017, to timely file her objections.
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          {¶14} In its response brief, Lager & Vine recognizes that June 3, 2017, did not fall on a

Friday.     However, Lager & Vine contends that Ms. Hudson’s objections were untimely

nonetheless. Lager & Vine asserts that the objections were due on Friday, June 2, 2017, not

Saturday, June 3, 2017, as Ms. Hudson argues.

          {¶15} Upon review of the record, this Court concludes that the discrepancy in the

judgment entry is not in stating the incorrect day of the week (Friday), but rather the incorrect

date (June 3, 2017). The magistrate’s decision, which clearly provided notice of the fourteen day

period for filing objections, was filed May 19, 2017. Pursuant to Civ.R. 53(D)(3)(b)(i), Ms.

Hudson had fourteen days from May 19, 2017 to file written objections, meaning Friday, June 2,

2017, was the last day for Ms. Hudson to timely file her objections. Therefore, the objections

Ms. Hudson filed Monday, June 5, 2017, were not timely filed.              Accordingly, this Court

determines that the trial court did not err in finding that Ms. Hudson’s objections were untimely.

Ms. Hudson’s first assignment of error is overruled.

                                      Assignment of Error III

          The trial court erred as a matter of law by misapplying Ohio law regarding
          open and obvious dangers.

                                      Assignment of Error IV

          The trial court erred as a matter of law by ignoring genuine issues of
          material fact that precluded summary judgment.


          {¶16} In her third assignment of error, Ms. Hudson argues that the trial court erred in its

application of law regarding the open and obvious doctrine when it granted summary judgment.

In her fourth assignment of error, Ms. Hudson argues the trial court erred by ignoring genuine

issues of material fact that remained to be litigated. Lager & Vine contends that Ms. Hudson is
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attempting to raise these arguments on appeal despite not having raised them below in a timely

objection to the magistrate’s decision.

       {¶17} As discussed in the first assignment of error, Ms. Hudson failed to file timely

objections to the May 19, 2017 magistrate’s decision. According to Civ.R. 53(D)(4)(c), “[i]f no

timely objections are filed, the court may adopt a magistrate’s decision, unless it determines that

there is an error of law or other defect evident on the face of the magistrate’s decision.” The trial

court correctly determined that the objections Ms. Hudson filed on June 5, 2017, were filed

beyond the fourteen day period provided for by Civ.R. 53(D)(3)(b)(i) and, therefore, untimely

and declined to consider the objections. Although the trial court determined it was necessary to

correct an error in the magistrate’s decision ruling on Ms. Hudson’s motion to strike, the court

adopted the magistrate’s decision as to the motion for summary judgment and entered judgment

accordingly.

       {¶18} Civ.R. 53(D)(3)(b)(iv) states:

       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 [such] * * *, unless the party has objected to that
       finding or conclusion as required by Civ.R. 53(D)(3)(b).

Ms. Hudson did not timely object to the magistrate’s decision pursuant to Civ.R. 53(D)(3)(b)(i).

Accordingly, we conclude that Ms. Hudson “has forfeited all but plain error on th[ese] issue[s]

because [s]he failed to timely object to the magistrate’s decision” and Ms. Hudson, in her merit

brief, “has not advanced a plain error argument on appeal.” Hess v. Satink, 9th Dist. Summit No.

27729, 2016-Ohio-4684, ¶ 23, citing App.R. 16(A)(7); See also State v. White, 9th Dist. Summit

Nos. 23955, 23959, 2008-Ohio-2432, ¶ 33 (“[T]his Court will not construct a claim of plain error

on behalf of an appellant who fails to raise such an argument in her brief.”). Therefore, Ms.

Hudson’s third and fourth assignments of error are overruled.
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                                     Assignment of Error II

       The trial court abused its discretion by ruling that the stricken exhibits were
       properly considered in its summary judgment ruling because [Ms. Hudson]
       allegedly authenticated them.

       {¶19} Ms. Hudson challenges the trial court’s decision to consider Lager & Vine’s

Exhibits 1 through 8—photographs of the restroom—as part of the record for the purpose of

ruling on the summary judgment motion in her second assignment of error.             Ms. Hudson

contends that these exhibits were not part of the record pursuant to the Craven affidavit, and the

trial court abused its discretion by admitting the exhibits as part of the record based on Ms.

Hudson’s deposition. During the deposition, Ms. Hudson contends, “she could not authenticate

the pictures.”

       {¶20} In the judgment entry, the trial court adopted the magistrate’s decision to grant

Ms. Hudson’s motion to strike. However, the trial court clarified that the magistrate’s decision

had incorrectly described Ms. Hudson’s motion as a “[m]otion to [s]trike the deposition and

deposition exhibits 1 through 8 of Clifton M. Cravens[.]” The trial court corrected that mistake

to clarify that the motion being granted was actually Ms. Hudson’s motion to strike the affidavit

of Clifton M. Cravens and Lager & Vine’s Exhibits 1-8 as referenced therein.

       {¶21} In contrast, the trial court did not alter the magistrate’s decision to consider the

deposition of Ms. Hudson and “[E]xhibits 1 through 8, which [Ms. Hudson] authenticated in her

deposition.”     The trial court did not find error with respect to that issue and adopted the

magistrate’s decision finding that Ms. Hudson authenticated Exhibits 1 through 8 and

considering them as summary judgment evidence. In her merit brief, Ms. Hudson argues that it

was improper for the court to consider those exhibits based on Ms. Hudson’s deposition, because
                                                  8


Ms. Hudson was unable to properly authenticate them. However, Ms. Hudson did not present

this argument to the trial court in a timely objection to the magistrate’s decision

       {¶22} As we determined above, Ms. Hudson failed to present timely objections to the

magistrate’s decision pursuant to Civ.R. 53(D)(3)(b)(i).        Consequently, pursuant to Civ.R.

53(D)(3)(b)(iv), Ms. Hudson is precluded from assigning this issue as error on appeal, except to

assert a claim of plain error. Ms. Hudson forfeited all but plain error, and failed to argue plain

error in her merit brief. See Satink, 2016-Ohio-4684, ¶ 23; White, 2008-Ohio-2432, ¶ 33.

Therefore, Ms. Hudson’s second assignment of error is overruled.

                                                 III.

       {¶23} Ms. Hudson’s assignments of error one through four are each overruled. The

judgment of the Medina Municipal Court is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                             JULIE A. SCHAFER
                                             FOR THE COURT



CARR, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

NATALIE F. GRUBB and MARK E. OWENS, Attorneys at Law, for Appellant.

GREGORY A. HUBER, Attorney at Law, for Appellee.

BLAKE R. GERNEY, Attorney at Law, for Appellee.
