[Cite as Latina v. Ciora, 2014-Ohio-2887.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


JOSEPH M. LATINA,                                :      OPINION

                 Plaintiff-Appellant,            :
                                                        CASE NO. 2013-L-112
        - vs -                                   :

BEVERLY A. CIORA,                                :

                 Defendant-Appellee.             :


Civil Appeal from the Willoughby Municipal Court, Case No. 13 CVI 00904.

Judgment: Affirmed.


Joseph M. Latina, pro se, 131 East 205th Street, Euclid, OH 44123 (Plaintiff-Appellant).

April C. Ryan and Craig S. Cobb, Law Offices of Craig S. Cobb, 55 Public Square,
Suite 1580, Cleveland, OH 44113 (For Defendant-Appellee).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Joseph A. Latina, appeals the judgment of the Willoughby

Municipal Court finding in favor of appellee, Beverly A. Ciora, on appellant’s small claim

complaint seeking damages in the amount of $3,000. Appellant alleged that appellee

improperly backed into appellant’s vehicle causing extensive damage. The trial court

also granted judgment in favor of appellee on her counterclaim in the amount of $300

plus interest at 3% per annum from the date of judgment and costs. Based on the

following, we affirm.
       {¶2}   The record demonstrates that on April 6, 2013, the parties were involved

in a motor vehicle accident whereby appellee was backing out of a driveway onto East

Spaulding Avenue; appellant was traveling westbound on East Spaulding Avenue. The

vehicles collided.

       {¶3}   Appellant filed his complaint against appellee on May 20, 2013. Appellee

filed a counterclaim against appellant on June 15, 2013. Appellee alleged that appellant

hit the back of her vehicle causing a total loss of her vehicle. Appellee sought judgment

against appellant in the sum of $3,000 plus interest at the rate of 3% and court costs.

       {¶4}   The matter came on for a hearing on August 5, 2013. After the hearing,

the magistrate issued her decision, finding the following: “an independent witness

testified that plaintiff was not paying attention as defendant pulled out. Both parties’

damage is in excess of $3,000.        It is found that plaintiff was 55% negligent and

[defendant] is 45% negligent.” The magistrate granted judgment for appellee on the

complaint and judgment for appellee on the counterclaim in the amount of $300 plus

interest at a rate of 3% and court costs.

       {¶5}   Appellant filed objections to the magistrate’s decision.          Appellant,

however, failed to provide a transcript of the proceedings before the magistrate. The

trial court noted this failure and further noted that neither party filed an affidavit with

respect to any of the magistrate’s findings of fact. The trial court affirmed the decision

of the magistrate.

       {¶6}   Appellant filed a notice of appeal and asserts the following assignments of

error for our review:

              [1.] The trial court committed an error in granting defendant-
              appellee’s, Beverly A. Ciora, motion for summary judgment based



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             upon its opinion that the plaintiff-appellant, Joseph M. Latina, was
             ‘not paying attention’ as the defendant-appellee was backing up.
             The trial court is in error in its interpretation/enforcement of ORC
             4511.38 (Rules for starting and backing vehicles) regarding
             exercising vigilance not to injure person or property on the street of
             highway which is the responsibility of the backing vehicle and its
             operator, defendant-appellees’, Beverly A. Ciora.

             [2.] The trial court committed an error in its granting defendant-
             appellee’s, Beverly A. Ciora, motion of summary judgment based
             on the determination that the ‘independent witness’ testimony was
             accurate. The ‘independent witness’ testified that the plaintiff-
             appellee was going faster than 10 mph on a street where the speed
             limit is 25 mph while traveling straight but admitted he was not able
             to determine the speed. This witness then testified that the
             defendant-appellant, Joseph M. Latina, was ‘looking to the left.’
             The line of sight and the dynamics of the plaintiff’s-appellant’s
             vehicle, involved at the time of the incident does not give the
             ‘independent witness’ a reasonable or beneficial position to be able
             to make such a determination. The ‘independent witness’ also
             testified that the defendant-appellee, Beverly A. Ciora, backed into
             the middle of the street and that the plaintiff-appellant, Joseph M.
             Latina, made contact with the defendant-appellee vehicle near East
             Spaulding Street/Public Square in Willoughby Ohio at
             approximately 6:10 P.M. on Saturday, April 6th, 2013 and ‘pushed’
             her vehicle. The ‘independent witness’’ testimony is inaccurate and
             based on hearsay evidence and his own opinion. The physical
             evidence, police report and photo evidence shows contrary.

             [3.] The trial court committed an error in its granting defendant-
             appellee’s, Beverly A. Ciora, motion of summary judgment based
             on the defendant’s-appellee’s admitted unfamiliarity with the area
             and distraction level. The defendant-appellee, Beverly A. Ciora,
             testified that she was not familiar with the area where the auto
             accident occurred. The defendant-appellee, Beverly A. Ciora, also
             testified that she had a canine in the vehicle with her that was not
             restrained causing distraction. The defendant-appellee, Beverly A.
             Ciora, testified that she was unaware that the driveway for 12
             Public Square was a private drive with a posted no trespassing
             sign. The defendant-appellee, Beverly A. Ciora, testified that she
             had a bright colored object in the back shelf of her rear window.

      {¶7}   Appellant, a pro se civil litigant, “is bound by the same rules and

procedures as litigants who retain counsel.” Miner v. Eberlin, 7th Dist. Belmont No. 08-




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BE-21, 2009-Ohio-934, ¶11. “‘[Pro se civil litigants] are not to be accorded greater

rights and must accept the results of their own mistakes and errors.’” Karnofel v. Cafaro

Mgt. Co., 11th Dist. Trumbull No. 97-T-0072, 1998 Ohio App. LEXIS 2910, *2 (June 26,

1998), quoting Meyers v. First Natl. Bank, 3 Ohio App.3d 209, 210 (1st Dist.1981).

       {¶8}   A review of the record reveals that appellant has failed to file a transcript

of the trial court proceedings. “Upon appeal of an adverse judgment, it is the duty of the

appellant to ensure that the record, or whatever portions thereof are necessary for the

determination of the appeal, are filed with the court in which he seeks review.” Rose

Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 19 (1988). “Any lack of diligence on the

part of an appellant to secure a portion of the record necessary to his appeal should

inure to appellant’s disadvantage rather than to the disadvantage of appellee.” Id.

       {¶9}   In Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980), the

Ohio Supreme Court held:

              The duty to provide a transcript for appellate review falls upon the
              appellant. This is necessarily so because an appellant bears the
              burden of showing error by reference to matters in the record. * * *
              When portions of the transcript necessary for resolution of assigned
              errors are omitted from the record, the reviewing court has nothing
              to pass upon and thus, as to those assigned errors, the court has
              no choice but to presume the validity of the lower court’s
              proceedings, and affirm.

       {¶10} Appellant failed to provide a transcript of the trial held before the

magistrate when he appealed the magistrate’s decision to the trial court, as required by

Civ.R. 53(D)(3)(b)(iii). That rule provides:

              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



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               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.

         {¶11} The trial court recognized appellant’s failure to file a transcript in its

judgment entry.     The trial court, without a transcript of the proceedings before the

magistrate, could not consider appellant’s objections. Appellant cannot claim the trial

court erred in adopting the magistrate’s decision.

         {¶12} Appellant’s assignment of errors all attack factual findings by the

magistrate. As such, a transcript or affidavit as set forth in the rule was necessary in

order to allow the trial court to consider appellant’s objections. Appellant has failed to

provide the trial court or this court with a transcript of the proceeding or an affidavit. As

a result, we have no alternative but to affirm the judgment of the Willoughby Municipal

Court.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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