[Cite as Pallone v. Ohio Dept. of Natural Resources, 2013-Ohio-3640.]



                                                        Court of Claims of Ohio
                                                                                The Ohio Judicial Center
                                                                        65 South Front Street, Third Floor
                                                                                   Columbus, OH 43215
                                                                         614.387.9800 or 1.800.824.8263
                                                                                    www.cco.state.oh.us

ROMAN J. PALLONE

       Plaintiff

       v.

OHIO DEPARTMENT OF NATURAL RESOURCES

       Defendant

Case No. 2010-10505

Judge Patrick M. McGrath
Magistrate Anderson M. Renick

JUDGMENT ENTRY

        {¶ 1} On January 30, 2013, the magistrate issued a decision recommending
judgment in favor of defendant after a trial on the issue of liability.
        {¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: “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). Plaintiff filed objections on February 13, 2013. Defendant did not object
or otherwise respond to plaintiff’s objections.
        {¶ 3} Civ.R. 53(D)(3)(b)(iii) provides in relevant part: “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.” Plaintiff has filed neither a transcript nor an affidavit of the evidence in lieu
thereof.
        {¶ 4} According to the magistrate’s decision, plaintiff operated a business located
at Buckeye Lake State Park known as Smitty’s on the Lake (Smitty’s), which was
surrounded by property owned by defendant. On September 14, 2008, the remnants of
Case No. 2010-10505                         -2-                                    ENTRY

Hurricane Ike traveled through Ohio. During the storm, a large branch from a silver
maple tree located on defendant’s property split and fell onto Smitty’s roof. Plaintiff
alleges that defendant had notice that the tree was a hazard and that defendant was
negligent in maintaining the tree.
       {¶ 5} After a trial on the issue of liability, the magistrate found that defendant did
not have notice that the silver maple tree which fell onto Smitty’s was a hazard.
Additionally, the magistrate found that defendant was entitled to discretionary immunity
for its decision to allow trees to grow on the earthen dam at Buckeye Lake. Finally, the
magistrate found that plaintiff’s claim was barred as an Act of God and that defendant
was immune under the public duty statute in its performance of inspections of trees at
Buckeye Lake.
       {¶ 6} While plaintiff’s objections are not stated with specificity pursuant to Civ.R.
53(D)(3)(b)(ii), the crux of plaintiff’s objections challenge the factual findings of the
magistrate. Plaintiff contends that the evidence establishes that the silver maple that
fell onto Smitty’s roof was a hazard of which defendant had notice. Additionally, plaintiff
contends that the evidence regarding the wind speed on September 14, 2008, at
Buckeye Lake shows that his property damage was not solely an Act of God. Finally,
plaintiff objects to the magistrate’s conclusion that defendant is entitled to discretionary
immunity for its decision to allow trees to grow on the dam at Buckeye Lake.
       {¶ 7} As noted above, plaintiff failed to file a transcript of the proceedings
pursuant to Civ.R. 53(D)(3)(b)(iii). “A party challenging a magistrate’s factual findings is
required to provide the trial court with a transcript of the hearing before the magistrate
‘or an affidavit of that evidence if a transcript is not available.’ Civ.R. 53(D)(3)(b)(iii).
Absent a transcript of affidavit, the trial court must presume the validity of the
magistrate’s proceedings and the ensuing findings of fact unless the court holds further
hearings. * * * The trial court need only determine whether the magistrate’s factual
findings support the conclusions of law in the magistrate’s decision.”         Kormanik v.
Case No. 2010-10505                          -3-                                 ENTRY

Haley, 10th Dist. No. 12AP-18,        2012-Ohio-5975, ¶ 12.      Inasmuch as the factual
findings contained in the magistrate’s decision support the magistrate’s conclusions,
plaintiff’s objections to such findings are without merit.
         {¶ 8} To the extent that plaintiff challenges the magistrate’s conclusions of the
law, the court’s review of the magistrate’s decision reveals that the facts found by the
magistrate are sufficient to sustain the magistrate’s conclusions, and that the
magistrate’s conclusions are consistent with law.
         {¶ 9} Upon review of the record, the magistrate’s decision and plaintiff’s
objections, the court finds that the magistrate has properly determined the factual issues
and appropriately applied the law. Therefore, the objections are OVERRULED and the
court adopts the magistrate’s decision and recommendation as its own, including
findings of fact and conclusions of law contained therein. Judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff. The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the journal.




                                           _____________________________________
                                           PATRICK M. MCGRATH
                                           Judge

cc:


James P. Dinsmore                              Roman J. Pallone
Assistant Attorney General                     5279 Silverthorne Road
150 East Gay Street, 18th Floor                Westerville, Ohio 43081
Columbus, Ohio 43215-3130

007
Filed April 12, 2013
To S.C. Reporter August 22, 2013
