[Cite as Pluck v. Williams, 2019-Ohio-897.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


Rodney Dale Pluck                                 Court of Appeals No. E-18-043

        Appellant                                 Trial Court No. CVI 1800136

v.

Mark Williams                                     DECISION AND JUDGMENT

        Appellee                                  Decided: March 15, 2019

                                              *****

        Oglesby & Oglesby, Ltd., for appellant.

                                              *****

        MAYLE, P.J.

        {¶ 1} Plaintiff-appellant, Rodney Dale Pluck, appeals the June 19, 2018 judgment

of the Vermilion Municipal Court, Small Claims Division, granting judgment in favor of

defendant-appellant, Mark Williams. For the reasons that follow, we affirm the trial

court judgment.
                                      I. Background

       {¶ 2} Rodney Dale Pluck filed a small-claims complaint against his neighbor,

Mark Williams, in the Vermilion Municipal Court, alleging that Williams destroyed his

property, trespassed, and committed theft and arson when he tore down Pluck’s fence.

The case was heard by the trial court on June 5, 2018.

       {¶ 3} The central issue at trial was whether the fence was located on Pluck’s

property or whether it was located on Williams’s. While Pluck maintained that the fence

was on his property, the trial court granted judgment in favor of Williams, holding that

Pluck failed to prove through expert testimony that the fence was situated on his

property. In his sole assignment of error, Pluck challenges this ruling:

              The Trial Court erred and abused its discretion by requiring a

       plaintiff in a small claims case to prove his case by expert testimony.

       {¶ 4} Williams did not file a brief on appeal.

                                  II. Law and Analysis

       {¶ 5} We review small-claims court proceedings under an abuse-of-discretion

standard. Broadstock v. Elmwood at the Springs, 6th Dist. Sandusky No. S-12-021,

2013-Ohio-969, ¶ 6. The only issue raised in this appeal is whether a trial court abuses

its discretion when it requires a small-claims plaintiff to prove his case by expert

testimony. Pluck contends that expert testimony is not required in small-claims court

because the rules of evidence do not apply. He maintains that it is sufficient that a party




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present “some reliable evidence” to prove a claim or defense and may do so using

otherwise inadmissible evidence, such as hearsay statements.

       {¶ 6} In Murray v. Doney, 6th Dist. Lucas No. L-01-1365, 2002-Ohio-401, the

plaintiff filed a complaint in small-claims court alleging that she sustained neck and back

injuries in a low-impact automobile accident caused by the defendant. The magistrate

agreed that the defendant was at fault for the accident, but he concluded that the

plaintiff—who had injuries from previous accidents and had seen a chiropractor six days

before the accident—failed to meet her burden of proof because she did not adduce

medical testimony establishing that her injuries were caused by the collision with

defendant.

       {¶ 7} The plaintiff argued on appeal that because the rules of evidence are

inapplicable to small-claims actions, she could not be required to present expert

testimony. We acknowledged that under Evid.R. 101(C)(8), the Ohio Rules of Evidence

do not apply to proceedings in the small claims division of a municipal court.

Nevertheless, we held that “if proof of an element of a cause brought in small claims

requires ‘expert’ testimony, the plaintiff is required to present that evidence, albeit in the

most economical fashion possible.”1 Id. at ¶ 17. We noted that in some cases, cause and


1
  In Dysart v. Estate of Dysart, 2d Dist. Miami No. 2009 CA 24, 2010-Ohio-1238, ¶ 32,
the court held that “the existence and location of boundary lines requires knowledge
typically beyond that of a layperson.” But see Galehouse v. Geiser, 9th Dist. Wayne No.
05CA0037, 2006-Ohio-766, ¶ 8 (rejecting argument that dispute over boundary line
requires expert testimony because its research revealed no Ohio case law supporting this
position). Pluck does not argue that proof of the elements of his claim do not require




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effect may be apparent and within a layman’s common knowledge, obviating the need for

expert testimony. But under the facts of the case, where the plaintiff was alleging injuries

caused by a low-impact automobile collision and had a history of neck and back injuries,

expert testimony was required to support her claim.

       {¶ 8} In other cases, under different facts, courts have held that it would create an

undue burden on a plaintiff to require expert testimony in a small-claims action. See,

e.g., Stull v. Budget Interior, 7th Dist. Belmont No. 02 BA 17, 2002-Ohio-5230, ¶ 11;

Wetzel v. Cars Prot. Plus, 11th Dist. Lake No. 2005-L-010, 2006-Ohio-740, ¶ 11; Stahl v.

Neff, 3d Dist. Seneca No. 13-08-09, 2008-Ohio-5195, ¶ 11; Seff v. Davis, 10th Dist.

Franklin No. 03AP-159, 2003-Ohio-7029, ¶ 20; Turpening Elec. v. Jones, 6th Dist. Lucas

No. L-96-175, 1997 Ohio App. LEXIS 581, *5 (Feb. 21, 1997). Those cases permit

plaintiffs to present lesser evidence to support their claims. See Stull at ¶ 14 (holding that

hearsay evidence of standard of care was improperly excluded); Stahl at ¶ 11 (concluding

that owner of manufactured home could testify as to its market value).

       {¶ 9} But while expert testimony generally may not be required in small-claims

court cases, a plaintiff must nonetheless present reliable evidence. See Wetzel at ¶ 12

(finding that reliable evidence was presented in automobile repair case where plaintiff

offered testimony of his stepfather who works on cars and rebuilds them); Seff at ¶ 21




expert testimony. He complains only that the trial court could not require expert
testimony of a small-claims plaintiff.




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(holding that reliable evidence was presented where contractor testified as to why roof

had become detached); Turpening at *5 (noting that “reliable” evidence is sufficient and

reversing trial court judgment where trial judge disregarded testimony of contractor).

       {¶ 10} Here, Pluck has not provided this court with a transcript of proceedings—

despite the fact that he filed a request for the audio recording of the proceedings—and

Pluck also did not file a statement of evidence in accordance with App.R. 9(C). “Without

a transcript or other acceptable statement of the evidence * * *, our review of the trial

court’s judgment is by necessity confined to the remaining pertinent portions of the

record.” Rose Chevrolet v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988). Thus

our review here is limited to the evidence as summarized by the trial court in its June 19,

2018 judgment.

       {¶ 11} According to the June 19, 2018 judgment, Pluck testified that the fence was

on his property; Williams testified that he did not know whose property the fence was on,

but he had maintained the fence “for some time;” the Vermilion building inspector

testified that no building permit was ever obtained for the fence and told Pluck to hire a

surveyor to determine the exact location of the lot line; and while Pluck offered exhibits

purporting to depict property pins, those exhibits did not make clear where the fence was

in relation to those pins.

       {¶ 12} We conclude that regardless of the absence of expert evidence, the record

before this court is insufficient to allow us to conclude that Pluck established—by

reliable evidence—that the fence was, in fact, on his property. In other words, the record




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is insufficient to demonstrate that the trial court abused its discretion by ruling in favor of

Williams. See Sutfield v. Toledo Trust Co., 6th Dist. Lucas No. L-79-024, 1979 Ohio

App. LEXIS 10739, *4 (Oct. 12, 1979) (finding that record was insufficient to

demonstrate error where no transcript of proceedings or statement of evidence was filed);

Steigerwald v. Denise, 6th Dist. Erie No. E-99-049, 1999 Ohio App. LEXIS 6231, *3

(Dec. 23, 1999) (explaining that where record contains no transcript or other record of

proceedings, we must presume regularity of the trial court).

       {¶ 13} Accordingly, we find Pluck’s assignment of error not well-taken.

                                      III. Conclusion

       {¶ 14} We find Pluck’s assignment of error not well-taken. He failed to file the

transcript of proceedings or an App.R. 9(C) statement of evidence, and the evidence as

summarized by the small-claims court is insufficient to allow us to conclude that the trial

court abused its discretion by ruling in favor of Williams. We affirm the June 19, 2018

judgment of the Vermilion Municipal Court, Small Claims Division. Pluck is ordered to

pay the costs of this appeal under App.R. 24.


                                                                          Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                                                                     Pluck v. Williams
                                                                     C.A. No. E-18-043




Arlene Singer, J.                             _______________________________
                                                          JUDGE
Christine E. Mayle, P.J.
                                              _______________________________
Gene A. Zmuda, J.                                         JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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