[Cite as Gati v. Reagan, 2014-Ohio-5800.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

KEVIN GATI                                          :
                                                    :
        Plaintiff-Appellant                         :       C.A. CASE NO. 26253
                                                    :
v.                                                  :       T.C. NO. 13CV1856
                                                    :
TOM REAGAN, PRESIDENT,                              :       (Civil Appeal from
TLR PROPERTIES                                      :        Kettering Municipal Court)
                                                    :
        Defendant-Appellee                          :


                                              ...........

                                             OPINION

                      Rendered on the       30th   day of      December     , 2014.

                                              ...........

BRIAN D. BRENNAMAN, Atty. Reg. No. 0088988, 1616 Turner Road, Xenia, Ohio 45385
     Attorney for Plaintiff-Appellant

THOMAS L. REAGAN, TLR Properties, 3430 S. Dixie Drive, Suite 303, Kettering, Ohio 45439
    Defendant-Appellee

                                             .............

DONOVAN, J.

        {¶ 1} This matter is before the Court on the notice of appeal of Kevin Gati, filed June 2,

2014. Gati appeals from the May 5, 2014 decision of the trial court that affirmed the Magistrate’s

decision granting judgment in favor of Thomas Reagan in the amount of $330.00. We hereby

affirm the judgment of the trial court.
                                                                                             -2-
       {¶ 2} On October 29, 2013, Gati filed a Statement of Claim against T.L.R. Properties,

LLC, and Reagan in the small claims division of Kettering Municipal Court. Reagan is the owner

of T.L.R. Properties, LLC. The Statement of Claim provides as follows:

       On or about June 14, 2012, Plaintiff Kevin Gati and Defendant Thomas Reagan of

       TLR Properties entered into a lease agreement for property located at 1370 Devon

       Ave., Apt. E-1 in Kettering, Ohio. On or about June 11, 2012, a security deposit of

       $398 was deposited with Defendant. Plaintiff vacated the apartment on June 28,

       2013 in compliance with the lease. Plaintiff gave required notice of forwarding

       address when he turned keys in to the office on or about June 28, 2013.

       {¶ 3} On November 14, 2013, Gati filed a notice of voluntary dismissal of T.L.R.

Properties, LLC, from the action. On November 25, 2013, Reagan filed a Counterclaim against

Gati that provides as follows:

       Plaintiff failed to give proper notice so Defendant did not realize tenant had

       vacated. Plaintiff violated rental agreement [and] was harboring dogs. Plaintiff

       also did not clean the apt[.] per lease agreement. Cleaning charges, carpet damage

       totaled $1544.45.

       Wherefore Defendant prays judgment against Plaintiff in the sum of $1544.45 plus

       interest at a rate of 3%.

       {¶ 4} On December 3, 2013, Gati filed a Reply to Answer and Counterclaim. After a

hearing on December 3, 2013, the Magistrate issued a report on March 11, 2014 that provides as

follows:

               ***

               It is the finding and recommendation of this Magistrate that on or about
                                                                                         -3-
June 14, 2012 Plaintiff leased from Defendant real estate commonly known as 1370

Devon Avenue, Apt. E-1. Plaintiff also paid to Defendant a security deposit of

$398.00 pursuant to the Lease Agreement. Plaintiff vacated the apartment on June

28, 2013, Plaintiff states that he gave any required notice and a forwarding address

to Defendant when he left the keys in the premises on or about June 28, 2013.

Defendant filed a counterclaim alleging that Plaintiff failed to give proper notice of

his intent to vacate the property. Defendant additionally claims that the Plaintiff

failed to clean the premises pursuant to the terms and conditions of the Lease

Agreement and as a result Defendant seeks a counterclaim in the amount of

$1,544.00. Plaintiff admits that he left the keys and his forwarding address in the

unit on a table and he did not otherwise confirm how or when Defendant received

the same.    Nevertheless, in August 2013 Defendant forwarded to Plaintiff

correspondence itemizing the costs being deducted from the security deposit and

identifying a balance due of $330.00. The Court finds that the Defendant properly

addressed the costs, charges, and security deposit pursuant to the terms of the Lease

Agreement.

       The Court finds, based upon all of the testimony and evidence presented

that Plaintiff’s tenancy caused or resulted in the charges claimed by Defendant * *

*. The Court further finds that after a proper credit for Plaintiff’s security deposit

Defendant is entitled to recover $330.00 under his counterclaim. The Court further

finds that Plaintiff’s claims and defenses are unsupported by any credible evidence

and without merit. Plaintiff’s Complaint is dismissed.

       It is, therefore, the opinion of this Magistrate that Judgment should be
                                                                                                 -4-
       granted in favor of the Defendant and against the Plaintiff in the amount of

       $330.00, plus interest at 3% from the date of the Judgment, plus costs.

       {¶ 5} Gati filed objections to the Magistrate’s Report on March 27, 2014, asserting as

follows:

               The Magistrate erred in his finding of fact that, Plaintiff states that he gave

       any required notice and a forwarding address to Defendant when he left the keys in

       the premises on or about June 28, 2013 and Plaintiff admits that he left the keys in

       the premises on a table and he did not otherwise confirm how or when Defendant

       received the same. And, that Plaintiff received itemize (sic) list on August of

       2013, and that Defendant properly addressed the costs, charges, and security

       deposit, and finding for Defendant.

       {¶ 6} On April 7, 2014, the Magistrate filed an amended report, noting that T.L.R.

Properties, LLC was dismissed from the matter. In its Decision in favor of Reagan, the trial court

determined as follows:

               ***

               The Court has reviewed the Record of the Court, the Report of the

       Magistrate, the transcript of the Small Claims trial held December 3, 2013, and the

       Objections to the Magistrate’s Report and finds the evidence is reasonable and

       credible and that no error is apparent that would warrant a re-trial of this matter. It

       appears, therefore, that the Report of the Magistrate is in accordance with law and

       orders the same incorporated here as if wholly rewritten.

               IT IS, THEREFORE, THE ORDER OF THIS COURT, that judgment

       be granted in favor of the Defendant, Thomas Re[a]gan, and against the Plaintiff in
                                                                                                 -5-
       his counterclaim, in the amount of Three Hundred Thirty Dollars ($330.00), plus

       interest at the statutory rate of three percent (3%) per annum from the date of

       Judgment, plus costs expended.

       {¶ 7} Gati asserts two assignments of error herein, which we will consider together.

They are as follows:

       “THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DISMISSED

PLAINTIFF’S CLAIMS,”

       And,

       “THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FINDS

PLAINTIFF’S CLAIMS AND DEFENSES UNSUPPORTED BY ANY CREDIBLE EVIDENCE

AND WITHOUT MERIT.”

       {¶ 8} Gati asserts that his “rent was wrongfully withheld in violation of R.C. 5321.16.

Therefore, the trial court erred as a matter of law when it dismissed Mr. Gati’s complaint and

entered judgment for Mr. Reagan. Mr. Gati submitted credible evidence to substantiate his

claims.”

       {¶ 9} A transcript of the hearing before the Magistrate is not in the file before us. As this

Court recently noted, the Supreme Court of Ohio has determined as follows:

       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. * * *.
                                                                                                 -6-
       Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

Baker v. Baker, 2d Dist. Montgomery No. 26167, 2014-Ohio-5066, ¶ 5.

       {¶ 10} In the absence of a transcript, we presume the validity of the proceedings below.

Gati’s assigned error(s) are accordingly overruled, and the judgment of the trial court is affirmed.

                                             .............

FAIN, J. and HALL, J., concur.

Copies mailed to:

Brian D. Brennaman
Thomas L. Reagan
Acting Judge Jay Newberry
cc: Hon. Frederick W. Dressel
