[Cite as Berry v. Ivy, 2011-Ohio-3073.]



             Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 96093



                                    GAREY S. BERRY
                                              PLAINTIFF-APPELLEE

                                                vs.

                                          DEBBIE IVY
                                              DEFENDANT-APPELLANT


                                          JUDGMENT:
                                           AFFIRMED

                                        Civil Appeal from the
                                     Cleveland Municipal Court
                                      Case No. 10 CVI 003822

               BEFORE:             Blackmon, P.J., S. Gallagher, J., and Rocco, J.

               RELEASED AND JOURNALIZED:                         June 23, 2011
ATTORNEY FOR APPELLANT

Charles A. Bakula
30285 Bruce Industrial Parkway
Suite C-2nd Floor
Solon, Ohio 44139


APPELLEE PRO SE

Garey S. Berry
421 East 222nd Street, #D-23
Euclid, Ohio 44123




PATRICIA ANN BLACKMON, P.J.:

      {¶ 1} Appellant Debbie Ivy (“Ivy”) appeals the trial court’s award of

$1,900, plus interest in favor of appellee Garey S. Berry (“Berry”) and assigns

the following error for our review:

      “The trial court erred when it rendered the judgment to
      the appellee contrary to the evidence presented.”

      {¶ 2} Having reviewed the record and pertinent law, we affirm the trial

court’s decision. The apposite facts follow.

                                       Facts
      {¶ 3} No transcript of the proceedings below was filed.      Thus, we rely

on the facts of the case as recited in the magistrate’s opinion.

      {¶ 4} In August 2006, Ivy hired Berry to perform repair and

installation work in the basement of her house. According to Berry, after he

started the work, Ivy requested that he perform additional work on the

property. The work was completed in November 2006, and Berry billed Ivy

$3,225.   Ivy paid Berry $1,325, leaving a balance of $1,900.         Berry sent

several letters to Ivy requesting payment of the balance. Ivy did not respond

to the letters; therefore, Berry placed a lien on Ivy’s property and filed a claim

for the balance in Cleveland’s small claims court.

      {¶ 5} The conclusions of law set forth in the magistrate’s opinion

indicate that there was no written contract between the parties. As to the

work performed in the basement, the magistrate found that Berry billed Ivy

$1,725 and that Ivy paid $1,325 of the bill. The magistrate also indicated

that Ivy did not testify that she was dissatisfied with the work conducted in

the basement or that anyone else specifically performed those repairs.

Therefore, the magistrate concluded that Ivy owed Berry the balance of $400

for the basement repairs.

      {¶ 6} Berry claimed to have performed additional work for Ivy, which

included installing light fixtures on the exterior and interior of the house,

painting, installing electric lines to several rooms, sewer snake and clean out,
gutter cleaning, and power washing. The bill for these additional services

totaled $1,500.    At the hearing, Berry presented his itemized bill and

photographs of the work performed. In spite of this evidence, Ivy testified

that Berry only did the basement project. In support of her contention, she

presented letters and invoices from other contractors stating that they had

performed work in her house from the year 2006 to 2007.

     {¶ 7} The magistrate concluded that the letters Ivy submitted were

vague as to what services the other contractors allegedly performed and for

the most part did not show any overlap with the services provided by Berry.

Some of the services admittedly did overlap, such as gutter cleaning and

power washing, but the magistrate concluded these were services that would

be performed annually. Moreover, Berry submitted thank you letters from

Ivy that indicated they had an ongoing work relationship that extended

beyond the basement project.    Based upon the evidence, the magistrate

concluded Ivy owed Berry $1,900 ($400 for the basement project and $1,500

for the additional work) and awarded interest of 4% per annum from the date

of the judgment.

     {¶ 8} Ivy filed objections to the magistrate’s report claiming Berry was

only hired to perform work in the basement, which she paid him for in

installments as each project was completed. She also contended the letters

she presented at the hearing supported her claim that other contractors
performed the work for which Berry was billing her.        She also claimed

Berry’s undated letters requesting payment and photographs did not

substantiate his claim. The trial court confirmed the magistrate’s decision

and ordered Ivy to pay Berry $1,900, with 4% interest from the date of

judgment.

                      Manifest Weight of the       Evidence

     {¶ 9} In her sole assigned error, Ivy argues the trial court’s judgment

was against the manifest weight of the evidence.

     {¶ 10} “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.” C.E.

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, at

syllabus. The civil manifest weight of the evidence standard “affords more

deference to the fact-finder” than is afforded in criminal cases.    State v.

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶26. The civil

standard “tends to merge the concepts of weight and sufficiency.” Id.      In

determining whether a civil judgment is against the manifest weight of the

evidence, an appellate court does not reweigh the evidence. Id.

     {¶ 11} As we stated above, Ivy failed to file a transcript of the hearing

held before the magistrate. “Upon appeal of an adverse judgment, it is the

duty of the appellant to ensure that the record, or whatever portions thereof
are necessary for the determination of the appeal, are filed with the court in

which he seeks review.” Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d

17, 19, 520, N.E.2d 564. (Citations omitted.) The appellant bears the burden

of showing error by reference to matters in the record. Knapp v. Edwards

Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384, citing State v.

Skaggs (1978), 53 Ohio St.2d 162, 372 N.E.2d 1355.

      {¶ 12} 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. Id.

This principle is recognized in App.R. 9(B), which requires the appellant to

include in the appellate record a transcript of all evidence relevant to the

findings or conclusion if the appellant intends to urge on appeal that a finding

or conclusion is unsupported by the evidence or is contrary to the weight of

the evidence.   Thus, because we have no transcript to review, we cannot

review Ivy’s contentions that 1) the photographs of the work performed by

Berry were not valid; 2) Berry was only hired to perform work in the

basement; 3) outlets were purchased from and installed by Best Buy; 4) the

thank you notes from Ivy to Berry only applied to the basement work; 5)

Berry’s progress on the job was slow and their professional relationship

deteriorated; 6) Ivy’s claim that she never received the letters from Berry
requesting payment and that she was not aware of the lien on her house until

she sought to refinance; and 7) her claim she paid Berry in full for the repairs

to the basement.     All of these claims require a review of the testimony

presented at the hearing.

      {¶ 13} Ivy did provide us with the exhibits from the hearing, including

the invoice from Berry and the invoices and letters from the other contractors

hired by Ivy.   Therefore, we are able to address Ivy’s argument that the

magistrate erred in concluding the other contractor’s invoices and letters did

not contradict Berry’s itemized billing statement. Our review of the exhibits,

even without the benefit of any testimony, indicates that the magistrate

correctly concluded that Berry’s itemized billing statement from December

17, 2006 is not contradicted by the invoices from the other contractors.

      {¶ 14} For example, although the other contractors also performed

electrical work for Ivy, none of the invoices and letters specifically stated that

they ran lines to the computer or installed plugs in the office and bedroom.

Additionally, although other contractors did install lighting, Berry charged

for changing the light fixtures not installing them. Berry also snaked out

specific sewer lines that were not listed by the other contractors.           For

example, Berry snaked out the main service line and sewer line to the street.

The other contractors only snaked out window wells and laundry and

bathroom drains. Therefore, we agree with the magistrate’s conclusion that
the invoices from the other contractors did not contradict Berry’s itemized

statement.

      {¶ 15} Thus, based on the limited record before us, we conclude the trial

court’s judgment is not against the manifest weight of the evidence and is

supported by competent, credible evidence. Accordingly, Ivy’s sole assigned

error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.



      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
