[Cite as R2H, L.L.C. v. E-Poch Properites, L.L.C. , 2011-Ohio-4413.]


         Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 96012




                                            R2H, LLC
                                                           PLAINTIFF-APPELLEE

                                                     vs.

               E-POCH PROPERTIES, LLC, ET AL.
                                                           DEFENDANTS-APPELLANTS




                                          JUDGMENT:
                                           AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CV-630548

        BEFORE:            Cooney, J., Stewart, P.J., and Rocco, J.

    RELEASED AND JOURNALIZED: September 1, 2011
FOR APPELLANT
                                             2


For Jamie Melvin

Jamie Melvin, pro se
1770 Horseshoe Blvd.
Westlake, Ohio 44145


ATTORNEY FOR APPELLEE

For R2H, LLC

Brian J. Green
Shapero & Green LLC
Signature Square II
25101 Chagrin Blvd., Ste. 220
Beachwood, Ohio 44122

For Nick Gautam, Receiver

Kimberly A. Brennan
Charles A. Nemer
McCarthy, Lebit, Crystal & Liffman Co.
1800 Midland Building
101 Prospect Avenue W.
Cleveland, Ohio 44115

COLLEEN CONWAY COONEY, J.:

       {¶ 1} Defendant-appellant, Jamie Melvin (“Melvin”), pro se, appeals the trial court’s

order granting an amended motion for authority to sell personal property filed by the receiver

for plaintiff-appellee, R2H, LLC (“R2H”).   Finding no merit to the appeal, we affirm.

       {¶ 2} Melvin is the owner and operator of E-Poch Properties (“E-Poch”).           E-Poch

owned the building located at 1455 East 185 Street (“the building”).
                                              ht
                                                                           Melvin is also the
                                               3

manager of Sansai Environmental Technologies, LLC (“Sansai”), a company that

manufactures organic potting material and cultivates earthworms in large quantities (“personal

property” or “the property”).    Sansai’s operation was housed within the building.

       {¶ 3} E-Poch entered into loan and mortgage agreements with R2H.           In 2007, when

E-Poch began to default on these agreements, R2H filed a complaint against E-Poch.           The

court found in favor of R2H and appointed Nick Gautam as receiver (“the receiver”).

       {¶ 4} The receiver became the owner and operator of the building, and in turn, Sansai

became a tenant and was required to pay rent.        When Sansai failed to pay rent, the receiver

moved to evict Sansai.      Melvin, as the owner and operator of Sansai, agreed to a court order

that allowed him 30 days to remove the personal property from the building.           The order

stipulated that if after the 30 days the property remained in the building, it would be

considered abandoned and would become the personal property of the receiver.             Despite

having personally signed this order, Melvin failed to remove the property from the building.

In July 2010, a court order granted the receiver’s motion to expand the receivership to include

all Sansai property abandoned in the building.

       {¶ 5} In August 2010, the receiver filed a motion for authority to sell the personal

property by private sale.     A hearing was held, and an agreement was announced between

Melvin and the receiver.       The receiver agreed not to sell the property pending Melvin’s
                                               4

reaching an agreement with R2H regarding the building prior to September 17, 2010.

However, Melvin failed to reach any agreement with R2H prior to the deadline.           Thus, the

trial court granted the receiver’s original motion to sell the property.

       {¶ 6} In October 2010, the receiver filed an amended motion for authority to sell the

personal property.    The motion sought an amendment of the value based on the actual value

of the property as opposed to the value Melvin had originally estimated.      Melvin objected in

writing to the motion, arguing that the newly proposed sale price was too low.     A hearing was

held, at which Melvin was represented by counsel.            Documentary evidence, as well as

affidavits, were submitted to the trial court in support of Melvin’s objection.       Counsel for

Melvin and for the receiver were invited to address the court.     After hearing from both sides,

the trial court ordered that the personal property be sold at the amended price.

       {¶ 7} It is from this order that Melvin now appeals, raising two assignments of error.

       {¶ 8} In his first assignment of error, Melvin argues that the trial court erred in granting

the motion without accepting evidence and testimony, in violation of his right to due process.

In his second assignment of error, Melvin argues that the trial court abused its discretion in

denying him the opportunity to present witnesses during the hearing on the amended motion.

Both assignments of error relate to the same facts and applicable law and will, therefore, be

addressed together.
                                               5

       {¶ 9} The admission or exclusion of evidence is a matter left to the trial court’s sound

discretion; therefore, it will not be disturbed absent an abuse of discretion. State v. Lundy

(1987), 41 Ohio App.3d 163, 169, 535 N.E.2d 664; State v. Duncan (1978), 53 Ohio St.2d

215, 219, 373 N.E.2d 1234.        An abuse of discretion is a decision that is unreasonable,

arbitrary, or unconscionable, rather than a mere error in judgment. Blakemore v. Blakemore

(1983), 5 Ohio St.2d 217, 215 N.E.2d 384.

       {¶ 10} However, Melvin’s counsel failed to object to the trial court’s exclusion of

testimonial evidence during the hearing, thus waiving all but plain error.        State v. Sutton,

Cuyahoga App. No. 90172, 2008-Ohio-3677, citing State v. Childs (1968), 14 Ohio St.2d 56,

263 N.E.2d 545. “A plain error does not exist unless, but for the error, the outcome of the

trial would have been different.”    State v. Joseph, 73 Ohio St.3d 450, 455, 1995-Ohio-288,

653 N.E.2d 285.      Moreover, as the Ohio Supreme Court stated in Goldfuss v. Davidson, 79

Ohio St.3d 116, 1997-Ohio-401, 679 N.E.2d 1099, at syllabus:

       {¶ 11} “In appeals of civil cases, 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.”
                                                6

         {¶ 12} In the instant case, Melvin concedes that he was given notice and an opportunity

to be heard.     Melvin’s counsel addressed the trial court at the hearing and argued at great

length in support of denying the motion.          During the course of his argument, counsel

mentioned that the property is worth a great deal more than the original estimate and that he

could “show that that [sic] inventory is worth way over $150,000 from the testimony of the

people who know what they’re talking about * * *.”         This was the only mention of possible

witnesses made during the hearing.       At no time did counsel ask the court to hear from any

witnesses, nor did counsel specify who was present to testify or the substance of their

testimony.     As the receiver correctly argues in its brief, Melvin failed to proffer the substance

of the “excluded” testimony, thus barring our review on appeal.

         {¶ 13} The trial court asked counsel twice if he had any further objections.     The first

time counsel responded with more objections but never mentioned the need for witnesses.

The second time, trial counsel indicated no objection by responding, “That’s basically it, your

Honor.”      After counsel for the receiver spoke, the trial court proceeded directly to issue its

order.    No objection was made to the court’s ruling, nor was any objection made to preserve

this issue on the record after the order had been given.       No proffer was made.       Thus, the

record clearly indicates that trial counsel for Melvin was given ample opportunity to either
                                               7

request specifically that the court hear from witnesses or to object to the trial court’s rendering

a decision without hearing from witnesses.

       {¶ 14} Moreover, Melvin suffered no prejudice by his inability to elicit witness

testimony because the trial court ordered the property be sold to the original buyer for $69,522.

Melvin had argued that the property should be sold to a new buyer for $70,000, a de minimis

difference.

       {¶ 15} Thus, after a careful review of the transcript, we cannot say that failing to hear

from Melvin’s witnesses seriously affected the final outcome of the hearing.          We find no

plain error nor any violation of Melvin’s due process rights.

       {¶ 16} Accordingly, both of Melvin’s assignments of error are overruled.

       Judgment affirmed.
                                     8

     It is ordered that appellee recover of appellant costs herein taxed.

     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
