[Cite as Trammell v. McCortney, 2011-Ohio-6598.]


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

JASON TRAMMELL                                          C.A. No.   25840

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
MICHAEL MCCORTNEY                                       BARBERTON MUNICIPAL COURT
                                                        COUNTY OF SUMMIT, OHIO
        Appellant                                       CASE No.   10 CVI 2851

                               DECISION AND JOURNAL ENTRY

Dated: December 21, 2011



        CARR, Judge.

        {¶1}    Michael McCortney appeals the judgment of the Barberton Municipal Court.

This Court affirms.

                                                   I.

        {¶2}    On December 2, 2010, appellee, Jason Trammell, filed a complaint against

McCortney in which he alleged a claim of unjust enrichment. Trammell prayed for damages in

the amount of $3,000.00 as compensation for a driveway he installed on McCortney’s property.

The matter proceeded to a hearing before the magistrate who recommended that judgment be

entered in favor of Trammell in the amount of $2,000.00, plus interest and costs. McCortney

filed objections to the magistrate’s decision. The trial court overruled McCortney’s objections,

adopted the decision of the magistrate, and entered judgment in favor of Trammell in the amount

of $2,000.00. McCortney appealed, raising two assignments of error for review.
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                                                 II.

                                 ASSIGNMENT OF ERROR I

       “THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT
       SUFFICIENT EVIDENCE WAS PRESENTED TO DEMONSTRATE THE
       CREATION OF AN EASEMENT BY ESTOPPEL.”

       {¶3}    McCortney argues that the trial court erred by finding sufficient evidence to

establish the creation of an easement by estoppel. This Court disagrees.

       {¶4}    In cases where the matter was initially heard by a magistrate who issued a

decision to which objections were filed and disposed, “[a]ny claim of trial court error must be

based on the actions of the trial court, not on the magistrate’s findings or proposed decision.”

Mealey v. Mealey (May 8, 1996), 9th Dist. No. 95CA0093.

       {¶5}    Here, McCortney misconstrues both the nature of Trammell’s claim and the trial

court’s order. Trammell filed a claim for unjust enrichment, not for a declaration that an

easement by estoppel had been created. Significantly, the trial court entered judgment in favor

of Trammell on his sole claim and awarded monetary damages. McCortney’s argument in his

first assignment of error is misplaced and irrelevant to the action taken by the trial court.

Accordingly, his first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       “THE TRIAL COURT ERRED AS A MATTER OF LAW IN AWARDING
       PLAINTIFF-APPELLEE MONETARY DAMAGES[.]”

       {¶6}    McCortney argues that the trial court erred in awarding monetary damages to

Trammell on his claim for unjust enrichment. His argument must properly be construed as an

allegation that the trial court’s award is against the weight of the evidence. This Court disagrees.

       {¶7}    In determining whether the trial court’s decision is or is not supported by the

manifest weight of the evidence, this Court applies the civil manifest weight of the evidence
                                                 3


standard set forth in C.E. Morris Co. v. Foley Const. Co. (1978), 54 Ohio St.2d 279, syllabus,

which holds: “Judgments supported by some competent, credible evidence going to all the

essential elements of the case will not be reversed by a reviewing court as being against the

manifest weight of the evidence.” The Ohio Supreme Court has clarified that:

       “when reviewing a judgment under a manifest-weight-of-the-evidence standard, a
       court has an obligation to presume that the findings of the trier of fact are correct.
       Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80-81. This
       presumption arises because the trial judge had the opportunity ‘to view the
       witnesses and observe their demeanor, gestures and voice inflections, and use
       these observations in weighing the credibility of the proffered testimony.’ Id. at
       80. ‘A reviewing court should not reverse a decision simply because it holds a
       different opinion concerning the credibility of the witnesses and evidence
       submitted before the trial court. A finding of an error in law is a legitimate
       ground for reversal, but a difference of opinion on credibility of witnesses and
       evidence is not.’ Id. at 81.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-
       2202, at ¶24.

       {¶8}    To prevail on a claim of unjust enrichment, Trammell must prove the following

elements: “(1) the plaintiff conferred a benefit on the defendant; (2) the defendant had

knowledge of the benefit; and (3) the defendant retained the benefit under circumstances where it

would be unjust for him to retain that benefit without payment.”           Apostolos Grp., Inc. v.

Josephson (Feb. 20, 2002), 9th Dist. No. 20733.

       {¶9}    Civ.R. 53(D)(3)(b)(iii) states 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.” McCortney failed to file either a

transcript or affidavit of the evidence submitted to the magistrate to the trial court when he filed

his objections to the magistrate’s decision. McCortney’s objections to the magistrate’s decision

challenged the factual determinations made by the magistrate. Accordingly, he was required to

file a transcript of the hearing or an affidavit of the evidence before the magistrate pursuant to
                                                 4


Civ.R. 53(D)(3)(b)(iii). Because he failed to do so, the trial court had no option but to accept the

magistrate’s factual findings of fact and overrule McCortney’s objections.          See Jaroch v.

Madalin, 9th Dist. No. 21681, 2004-Ohio-1982, at ¶10. Moreover, in the absence of a properly

filed transcript or affidavit of the evidence, this Court must also conclude that the trial court’s

decision was supported by some competent, credible evidence and affirm.

       {¶10} Although McCortney filed an App.R. 9(C) statement of the evidence, approved by

the trial court, in conjunction with this appeal, the statement constitutes evidence outside the

record of the trial court’s proceedings and this Court may not consider it. See McAuley v. Smith

(1998), 82 Ohio St.3d 393, 396.

       {¶11} McCortney’s second assignment of error is overruled.

                                                III.

       {¶12} McCortney’s assignments of error are overruled. The judgment of the Barberton

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 Barberton

Municipal Court, County of Summit, 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
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period for review shall begin to run. App.R. 22(E). 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.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT



BELFANCE, P. J.
MOORE, J.
CONCUR


APPEARANCES:

ROBERT E. SOLES, JR. and KARA DODSON, Attorneys at Law, for Appellant.

JASON TRAMMEL, pro se, Appellee.
