[Cite as Wallace v. Ferguson, 2013-Ohio-2437.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



LOIS W. WALLACE                                  :   JUDGES:
                                                 :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                      :   Hon. William B. Hoffman, J.
                                                 :   Hon. Sheila G. Farmer, J.
-vs-                                             :
                                                 :
CRAIG & LISA FERGUSON                            :   Case No. 12-CA-105
                                                 :
        Defendants-Appellees                     :   OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
                                                     Case No. 12CV100540



JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    June 4, 2013




APPEARANCES:

For Plaintiff-Appellant                              For Defendants-Appellees

LOIS W. WALLACE, PRO SE                              MICHAEL O'REILLY
13831 Carlstead Drive                                30 Hill Road South
Pickerington, OH 43147                               Pickerington, OH 43147
Fairfield County, Case No. 12-CA-105                                                     2

Farmer, J.

      {¶1}   On February 13, 2012, appellant, Lois Wallace, filed a complaint against

appellees, Craig and Lesa Ferguson, for damages to her property caused by felled

trees by persons hired by appellees.

      {¶2}   A hearing before a magistrate commenced on March 28, 2012.                 By

decision filed June 1, 2012, the magistrate ruled in favor of appellees, finding appellant

failed to establish her damages.       Appellant filed objections.   By journal entry filed

September 19, 2012, the trial court denied the objections and approved and adopted

the magistrate's decision.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

      {¶4}   "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND THE

PLAINTIFF-APPELLANT'S ESTIMATES OF DAMAGES WERE INADMISSIBLE,

THEREFORE FAILING TO PROVE HER DAMAGES."

                                             II

      {¶5}   "THE TRIAL COURT'S FINDING THAT THE PLAINTIFF-APPELLANT

FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE, THE DAMAGES

TO HER PROPERTY AND THE CAUSE OF THESE DAMAGES, IS AGAINST THE

WEIGHT OF THE EVIDENCE."

                                             III

      {¶6}   "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED

THE MAGISTRATE TO PRESIDE OVER THIS CASE. THE SAME MAGISTRATE HAD
Fairfield County, Case No. 12-CA-105                                                      3


RULED ON AN EARLIER CASE THAT WAS CURRENTLY UNDER APPEAL IN THE

5TH DISTRICT COURT OF APPEALS."

                                             I

       {¶7}   Appellant claims the trial court erred in finding her exhibits on estimates of

damages were inadmissible. We agree.

       {¶8}   Generally, rulings on admissibility are reviewed under an abuse of

discretion standard. State v. Sage, 31 Ohio St.3d 173 (1987). In order to find an abuse

of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217 (1983).

       {¶9}   The magistrate and the trial court appear to have completely disregarded

Evid.R. 101(C)(8) which states the rules of evidence do not apply to proceedings in

small claims court. Rule 4.0 of the Small Claims Division of Fairfield County Municipal

Court states the following:



              You must have all of your evidence at the hearing of your

       case. Under no circumstances will any new evidence be accepted

       after conclusion of the hearing. Although you may prepare and present

       your case in any manner you see fit, you must have evidence to support

       your claim. Evidence includes your testimony, the testimony of witnesses,

       written agreements, receipts, public records, tangible items, photographs,

       etc.   A written statement from a witness is not admissible as

       evidence.    You may issue subpoenas, if necessary, to command the
Fairfield County, Case No. 12-CA-105                                                  4


      attendance of witnesses, and also for any documents you may need to

      substantiate your claim. Listed below are several examples of the types of

      cases commonly heard in the Small Claims Division, and the evidence

      that is suggested:

      ***

      DAMAGE TO REAL PROPERTY

                Two copies of two estimates of repair, or repair bill.

                Photographs/video recording of the damage.

                Witnesses who viewed the incident.



      {¶10} The magistrate's decision filed June 1, 2012 demonstrates a disregard for

the exception to the Rules of Evidence:



             2.***The issue in the within cause is reasonable cost. None of the

      companies providing estimates had representatives testify at the hearing.

      Plaintiff is well aware of the procedures for filing subpoenas, since she has

      requested subpoenas both in this case and in previous actions against the

      Defendants.    Based on the evidence presented, including pictures, it

      would appear that Plaintiff is attempting to collect from Defendants much

      more than the actual damages caused by Defendants' agents. In the

      instant case, testimony from the companies providing estimates of

      damages was crucial.
Fairfield County, Case No. 12-CA-105                                                      5


                3. Plaintiff received $691.12 from her insurance company leaving a

        demand of $948.19 which includes attorney's fees.

                4. Plaintiff has the burden of proving damages and in the instant

        case, has failed to do so. The Court cannot speculate.



        {¶11} Appellees were well aware of the amount in question because a complete

packet of the proposed estimates to repair the damage was filed along with the

complaint on February 13, 2012.

        {¶12} Upon review, we find the trial court erred in excluding appellant's exhibits

on the issue of damages.

        {¶13} Assignment of Error I is granted and the matter is remanded for

reconsideration.

                                             II

        {¶14} Based upon our decision in Assignment of Error I, this assignment is

moot.

                                             III

        {¶15} Appellant claims the magistrate should have recused himself.                In

reviewing the docket, we do not find a motion for recusal or an affidavit of prejudice filed

by appellant.

        {¶16} Assignment of Error III is denied.
Fairfield County, Case No. 12-CA-105                                             6


      {¶17} The judgment of the Municipal Court of Fairfield County, Ohio is hereby

reversed, and the matter is remanded to said court for reconsideration.

By Farmer, J.

Gwin, P.J. and

Hoffman, J. concur.




                                        _s/ Sheila G. Farmer________________



                                        s/ W. Scott Gwin____________________



                                        s/ William B. Hoffman________________

                                                      JUDGES

SGF/sg 521
[Cite as Wallace v. Ferguson, 2013-Ohio-2437.]


                  IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



LOIS W. WALLACE                                     :
                                                    :
        Plaintiff-Appellant                         :
                                                    :
-vs-                                                :        JUDGMENT ENTRY
                                                    :
CRAIG & LISA FERGUSON                               :
                                                    :
        Defendants-Appellees                        :        CASE NO. 12-CA-105




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Fairfield County, Ohio is reversed, and the matter is

remanded to said court for reconsideration. Costs to appellees.




                                                 _s/ Sheila G. Farmer________________



                                                 s/ W. Scott Gwin____________________



                                                 s/ William B. Hoffman________________

                                                             JUDGES
