[Cite as Riebe v. Hilton, 2012-Ohio-1699.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


NICHOLINA RIEBE, et al.                       )    CASE NO. 11 MA 180
                                              )
        PLAINTIFFS-APPELLEES                  )
                                              )
VS.                                           )    OPINION
                                              )
SILKA HILTON, et al.                          )
                                              )
        DEFENDANTS-APPELLANTS                 )

CHARACTER OF PROCEEDINGS:                          Civil Appeal from the Youngstown
                                                   Municipal Court of Mahoning County,
                                                   Ohio
                                                   Case No. 10 CVI 1771

JUDGMENT:                                          Modified. Affirmed.

APPEARANCES:

For Plaintiffs-Appellees:                          Nicholina Riebe, Pro se
                                                   1698 Olson Avenue
                                                   Youngstown, Ohio 44509

                                                   Kelly K. Riebe, Pro se
                                                   4595 Alderwood Drive
                                                   Canfield, Ohio 44406

For Defendants-Appellants:                         Atty. Timothy F. George
                                                   1029 Youngstown-Warren Road
                                                   Niles, Ohio 44446

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                   Dated: March 28, 2012
[Cite as Riebe v. Hilton, 2012-Ohio-1699.]
WAITE, P.J.


        {¶1}     This is an appeal of a small claims action in Youngstown Municipal

Court involving an automobile accident. Appellee Nicholina Riebe (“Appellee”) filed a

pro se negligence complaint after her daughter Kelly K. Riebe (“Riebe”) was involved

in an accident using Appellee’s car. The accident occurred when Appellant Silka S.

Hilton (“Hilton”) was making a left turn on McCollum Road in Youngstown. Riebe

was travelling in the opposite direction on McCollum Road. The two cars collided

before Hilton finished making the left turn. The other defendant in the case is Hilton’s

mother, Appellant Celina H. Gardenhire (“Gardenhire”) who was the owner of the car

that Hilton was driving.

        {¶2}     Appellee alleged that Hilton failed to yield while making a left turn, and

thus, was responsible for the accident. She filed the small claims action to recover

the cost of the vehicle, which was destroyed in the accident. The case was heard

before a magistrate, who ruled in Appellee’s favor in the amount of $2,610 plus costs.

Appellee was unrepresented by counsel both at trial and in this appeal. Appellants

argue that judgment against Gardenhire, the vehicle owner, was inappropriate

because Appellee failed to prove (or even allege) negligent entrustment. Appellants

are correct, and the judgment against Gardenhire must be dismissed. Appellants

also argue that the trial court incorrectly relied on evidence that Hilton pleaded no

contest to a left turn violation. Evid.R. 410(A) prohibits the use of no contest pleas as

evidence in any civil or criminal action. The record does not reflect that the trial court

relied on the no contest plea in rendering its judgment, and this argument has no
                                                                                    -2-

merit. The judgment of the trial court is modified to dismiss the claim against Celina

H. Gardenhire, and is affirmed in all other aspects.

       {¶3}   The accident occurred on August 20, 2009. The record reflects that

Appellee, as the owner of the car Riebe was driving, filed the small claims action

because the other driver had no insurance. Questions about insurance coverage are

not part of this case, although it is clear from the record that there was no insurance

on Gardenhire’s vehicle at the time of the accident. Riebe does not appear to be a

party to this action, as she did not sign her mother’s small claims complaint nor

otherwise join the lawsuit.

       {¶4}   Attached to the small claims complaint was a copy of a Youngstown

traffic citation that Hilton received at the time of the accident. Hilton was cited for

violating Youngstown Municipal Ordinance (“Ord.”) 331.17, which requires a driver

making a left turn to yield to a vehicle approaching in the opposite direction.

Appellee also attached a copy of Hilton’s no contest plea to the complaint. The small

claims case was heard at a bench trial before a magistrate on August 5, 2010.

Appellee proceeded pro se, but the defendants were represented by counsel. Riebe

described her version of the accident, and Appellee testified about the value of the

vehicle and the disposition of the vehicle after the accident. The accident occurred at

the intersection of McCollum Road and Schenley Avenue in Youngstown. Hilton was

heading west and attempted to make a left turn to travel south on Schenley Ave.

Riebe was heading east and hit Hilton’s car as it was in the intersection making the

left turn. Hilton also testified that she was making a left turn on McCollum when the
                                                                                     -3-

cars collided, but she did not remember seeing Riebe’s vehicle as she was making

the turn.

       {¶5}   Appellants’ attorney objected to Appellee’s use of the no contest plea to

Ord. 331.17 as proof of liability. The magistrate agreed that it could not be used as

evidence. (Tr., p. 27.)

       {¶6}   The magistrate found in favor of Appellee and awarded her $2,610 for

the value of the car and for the towing charge. Appellants filed objections to the

magistrate’s decision, but the trial court overruled the objections and adopted the

magistrate’s decision on December 6, 2010. This appeal followed. Appellee has not

filed a brief on appeal, which allows us to “accept the appellant's statement of the

facts and issues as correct and reverse the judgment if appellant's brief reasonably

appears to sustain such action.” App.R. 18(C).

                          ASSIGNMENT OF ERROR NO. 1

       {¶7}   “THE TRIAL COURT ERRED IN GRANTING JUDGMENT AGAINST

APPELLANT,       CELINA     GARDENHIRE,        BECAUSE       THE     ELEMENTS       OF

NEGLIGENT ENTRUSTMENT WERE NOT ESTABLISHED.”

       {¶8}   Appellants’ first argument is that Gardenhire, who owns the vehicle that

Hilton was driving but was not in the vehicle at the time of the accident, should not be

liable for any part of the judgment because Appellee did not allege or prove any

theory by which she could be held liable. Appellants contend that the owner of a

vehicle may be held vicariously liable when a vehicle is negligently entrusted to

another, but no allegation or proof of negligent entrustment was made in this case.
                                                                                     -4-

Appellants are correct. In order to prove negligent entrustment, the plaintiff must

show that “that the owner of the automobile had knowledge of the driver's

incompetence, inexperience or reckless tendency as an operator, or that the owner,

in the exercise of ordinary care, should have known thereof from facts and

circumstances with which he was acquainted.” Mt. Nebo Baptist Church v. Cleveland

Crafts Co., 154 Ohio St. 185, 93 N.E.2d 668 (1950), paragraph two of the syllabus.

       {¶9}   There is no evidence in the record supporting the conclusion that

Gardenhire gave Hilton permission to use the vehicle, or that she had any knowledge

that Hilton may have had any history of incompetence, inexperience or reckless

tendencies as an operator of a motor vehicle. The only evidence on the subject

came from Gardenhire herself, who stated that she did not permit Hilton to use the

car and did not entrust her car to Hilton. (Tr., p. 26.) There is no evidence at all

about Hilton’s driving history.    Because Appellee did not attempt to establish

negligent entrustment or advance any other theory as to Appellant’s liability as mere

owner of the car, she should have been dismissed as a defendant. Appellants were

not insured at the time of accident, and there are no issues regarding possible

insurance claims that might arise based on ownership of the vehicle. The judgment

of the trial court is modified to dismiss Gardenhire from the case.

                          ASSIGNMENT OF ERROR NO. 2

       {¶10} “THE TRIAL COURT ERRED IN CONSIDERING THAT APPELLANT,

SILKA HILTON, WAS CHARGED WITH A VIOLATION OF YOUNGSTOWN CITY
                                                                                     -5-

ORDINANCE 331.17 INASMUCH AS SAID APPELLANT ENTERED A PLEA OF NO

CONTEST TO SAID CHARGE.”

       {¶11} Appellants’ second assignment of error alleges that the trial court

improperly relied on evidence of a no contest plea to establish that Hilton was liable

for the accident.   Evid.R. 410(A)(2) prohibits the use of a no contest plea as

evidence:   “[E]vidence of the following is not admissible in any civil or criminal

proceeding against the defendant who made the plea or who was a participant

personally or through counsel in the plea discussions: * * * (2) a plea of no contest or

the equivalent plea from another jurisdiction”. This prohibition is repeated in Crim.R.

11(B)(2). The Ohio Supreme Court has explained the purpose of Evid.R. 410(A) as

follows:

             {¶12} The purpose behind the inadmissibility of no contest

             pleas in subsequent proceedings is to encourage plea

             bargaining as a means of resolving criminal cases by

             removing any civil consequences of the plea. The rule also

             protects the traditional characteristic of the no contest plea,

             which is to avoid the admission of guilt. The prohibition

             against admitting evidence of no contest pleas was

             intended generally to apply to a civil suit by the victim of the

             crime against the defendant for injuries resulting from the

             criminal acts underlying the plea. The plain language of

             Evid.R. 410(A) prohibits admission of a no contest plea,
                                                                                     -6-

             and the prohibition must likewise apply to the resulting

             conviction. To find otherwise would thwart the underlying

             purpose of the rule and fail to preserve the essential nature

             of the no contest plea. (Citations omitted.) Elevators Mut.

             Ins. Co. v. J. Patrick O'Flaherty's, 125 Ohio St.3d 362,

             2010-Ohio-1043, 928 N.E.2d 685, ¶14.

      {¶13} The record does not reflect that the magistrate or the trial judge relied

on the no contest plea as proof of liability. The magistrate sustained Appellants’

objection to the use of the no contest plea, and stated that “I tell everyone in traffic

court, a no contest plea can’t be used against you at any later civil proceeding.” (Tr.,

p. 27.) The magistrate’s findings of fact and conclusions of law do not make any

reference to the no contest plea. A judge, or in this case, a magistrate, proceeding in

a bench trial is presumed to know the law and apply it correctly. State v. Eley, 77

Ohio St.3d 174, 180-181, 672 N.E.2d 640 (1996); E. Cleveland v. Odetellah, 91 Ohio

App.3d 787, 794, 633 N.E.2d 1159, (8th Dist.1993). Nothing in this record acts to

overcome this presumption. The remaining evidence in the record firmly supports a

conclusion that Hilton made a left turn and failed to yield to the oncoming driver, and

thus, was negligent and was liable for damages.              Appellants’ argument is

unpersuasive, and this assignment of error is overruled.

      {¶14} In conclusion, Appellants are correct that the owner of the vehicle

involved in the accident, Celina H. Gardenhire, should have been dismissed from the

action because no theory of liability against her was set forth or proven. Appellants
                                                                                          -7-

are incorrect that the trial court relied on Hilton’s no contest plea to a left turn violation

as proof of liability. The magistrate had other evidence to rely on to support its

judgment in favor of Appellee, and nothing in the record demonstrates that the trial

court relied on the no contest plea.        The judgment entry is therefore modified to

reflect that Gardenhire is dismissed as a party and is not liable for the judgment. The

judgment is affirmed in all other aspects.


Donofrio, J., concurs.

DeGenaro, J., concurs.
