[Cite as Williams v. Matthews, 2013-Ohio-483.]




                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 98136


                               DONALD C. WILLIAMS
                                                 PLAINTIFF-APPELLEE

                                                  vs.

                                    IVAN MATTHEWS
                                                 DEFENDANT-APPELLANT


                                   JUDGMENT:
                             AFFIRMED; REMANDED FOR
                                  CORRECTIONS


                                        Civil Appeal from the
                                      Cleveland Municipal Court
                                      Case No. 2008 CVI 024776

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

             RELEASED AND JOURNALIZED:                      February 14, 2013
FOR APPELLANT

Ivan Matthews, Pro Se
3305 East 143rd Street
Cleveland, OH 44120


FOR APPELLEE

Donald C. Williams
1370 Ontario Street
Suite 330
Cleveland, OH 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Ivan Matthews (“Matthews”) appeals pro se the trial court’s

award in favor of appellee Donald C. Williams (“Williams”) in the amount of $2,207.50

and assigns 12 errors for our review.1

       {¶2} Having reviewed the record and relevant law, we affirm the trial court’s

judgment but remand the matter for the trial court to make corrections. The apposite

facts follow.

                                         Facts

       {¶3} No transcript of the proceedings was provided.       Instead, the appellant

submitted an App.R. 9(C) statement. According to the statement, Matthews was charged

with the crime of menacing by stalking. He retained attorney Williams to represent him.

According to the written attorney-client agreement, Williams agreed to represent

Matthews in exchange for a $1,750 retainer fee at an hourly rate of $185. Williams

provided extensive legal services to Matthews from December 12, 2007 to March 4,

2008. Williams was paid a total of $1,400 as compensation for his services.

       {¶4} Williams withdrew from representing Matthews because Matthews and his

family became unhappy with his representation and threatened Williams while at his

office. The trial court granted his motion to withdraw.




       See appendix.
       1
       {¶5} Because a balance of $2,207.50 remained due and owing to Williams for

legal services he provided Matthews, Williams filed a complaint in small claims court

against Matthews on October 29, 2008. After several continuances were granted and

various motions ruled upon, a hearing was held before a magistrate on April 26, 2012.

       {¶6} The magistrate concluded that attorney Williams was a more credible

witness than Matthews and ordered Matthews to pay the balance of his legal fees in the

amount of $2,207.50, plus interest. The trial court adopted the magistrate’s decision.

                                   Motion to Transfer

       {¶7} In his first assigned error, Matthews argues the trial court abused its

discretion when it cancelled the trial scheduled for March 4, 2009. He contends the trial

court should have dismissed Williams’s complaint because Williams failed to appear at

the hearing.

       {¶8} After several continuances were requested by Matthews and granted, the

trial court set trial for March 4, 2009. On the afternoon prior to the trial, Matthews filed

a motion to transfer the case to the common pleas court because he filed a counterclaim in

the amount of $20,310. As a result, the magistrate cancelled the trial scheduled for the

next day.

       {¶9}    A review of the magistrate’s decision regarding its decision to cancel the

hearing shows that the magistrate did so because Matthews filed a motion to transfer his

case to court of common pleas at approximately 3:00 p.m. the day before trial. The

magistrate explained that:
      Because of the lateness of the filing, the Clerk of Court’s Office
      immediately sent the defendant’s motion to transfer to the Small
      Claims Magistrate, the undersigned. In order for the matter to be
      handled properly, the decision was made to cancel the March 4, 2009
      trial pending ruling on the defendant’s motion. An attempt was made
      to contact both parties to advise them not to appear. A message was
      left for [Matthews]. However, because [Matthews] repeatedly failed to
      give the court a telephone number by which he could be contacted, the
      Magistrate was unable to advise him not to appear. Magistrate’s
      Decision, April 2, 2010.

      {¶10} Thus, it appears the only reason attorney Williams did not appear at the

hearing was because the court telephoned him and told him not to appear. The court

tried to extend the same courtesy to Matthews, but because he failed to provide the court

with a telephone number, the court was unable to contact him.

      {¶11} Under these circumstances, where Matthews filed the motion on the eve of

trial, and the court had not received or reviewed the counterclaim, the court did not abuse

its discretion by affirming the magistrate’s decision to cancel the hearing. Moreover, to

further complicate the matter, it appears that the counterclaim was filed in the court of

common pleas, not the municipal court, and attorney Williams was not served with a copy

of the counterclaim. To proceed with the hearing under these circumstances would have

been unfair to Williams. Accordingly, Matthews’ first assigned error is overruled.

                                    Motion to Vacate

      {¶12} In his second assigned error, Matthews contends that the trial court erred

by vacating its dismissal of Williams’s complaint without prejudice.

      {¶13} A trial court’s decision to grant or deny a motion for relief from judgment

pursuant to Civ.R. 60(B) lies within its sound discretion; thus, the decision will not be
disturbed absent an abuse of discretion. Strack v. Pelton, 70 Ohio St.3d 172, 174,

1994-Ohio-107, 637 N.E.2d 914.          An abuse of discretion is more than an error of

judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in

its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

An abuse of discretion demonstrates “perversity of will, passion, prejudice, partiality, or

moral delinquency.”       Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621,

1993-Ohio-122, 614 N.E.2d 748. When applying this standard, the appellate court may

not substitute its judgment for that of the trial court. Id.

       {¶14} In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the

moving party must demonstrate that (1) the party has a meritorious defense or claim to

present if relief is granted; (2) the party is entitled to relief under one of the grounds

stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time

and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year

after the judgment, order, or proceeding was entered or taken. GTE Automatic Elec., Inc.

v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the

syllabus. Because the requirements of Civ.R. 60(B) are stated in the conjunctive, if one

of the requirements is not met, relief from judgment cannot be granted. Strack at 174.

       {¶15} Williams satisfied all three prongs of the test. Williams had a meritorious

claim that he was owed money for his legal services from Matthews. He filed his motion

mere days after the dismissal judgment was entered. He stated that although he had used

his new address in filing the complaint, the municipal court computer used his old address
as the address to which to send notices and orders. This would fall under the grounds of

mistake or inadvertence pursuant to Civ.R. 60(B)(1). We find no basis to conclude the

trial court abused its discretion in vacating its dismissal. Accordingly, Matthews’ second

assigned error is overruled.

                               Court’s Review of Objections

       {¶16} In his third, fifth, tenth, and eleventh assigned errors, Matthews argues the

trial court failed to conduct an independent review of his objections to the various

magistrate decisions and that the magistrate failed to issue requested findings of fact and

conclusions of law.

       {¶17} In reviewing a trial court’s ruling on objections to a magistrate’s decision

“[a]n appellate court presumes that a trial court performed an independent analysis of a

magistrate’s decision.”   Jones v. Smith, 187 Ohio App.3d 145, 2010-Ohio-131, 931

N.E.2d 592, ¶ 10 (4th Dist.); see also Alessio v. Alessio, 10th Dist. No. 05AP-988,

2006-Ohio-2447, ¶ 36. Therefore, a party asserting error must affirmatively demonstrate

that the trial court failed to conduct the independent analysis. Id. Further, simply because

a trial court adopted a magistrate’s decision does not mean that the court failed to exercise

independent judgment. Id. Matthews has failed to “affirmatively demonstrate” that the

court failed to conduct an independent review of the magistrate’s decisions.

       {¶18} Matthews contends that the trial court did not independently review the

magistrate’s decisions to cancel the March 4, 2009 hearing and to deny Matthews’ motion

to transfer.   He contends that if the court had reviewed the          decision   it   would
realize that magistrate, who did not preside at the March 4, 2009 hearing,

issued the decision to cancel the hearing and deny the motion. However, there was no

March 4, 2009 hearing, because it was cancelled. The decision regarding the motion to

transfer involved merely procedural matters that could have been determined by any of

the available magistrates.

       {¶19} Matthews also contends he did not receive any response to his February 4,

2011 request for findings of fact and conclusions of law. However, the record does not

show that such a request was filed. The record indicates that every time that Matthews

requested findings of fact and conclusions of law, the magistrate responded. In fact, the

magistrate provided findings when it was not obligated to do so. For instance, the court

was not obligated to provide findings of facts and conclusions of law when it was ruling

on purely procedural matters where no evidence was submitted. See Savage v. Zeigler,

4th Dist. No. 06CA5, 2006-Ohio-2760 (“Although Rule 52 mandates the issuance of

findings of fact and conclusions when questions of fact are tried by the court without a

jury, the Rule specifically holds that such findings are ‘unnecessary upon all other

motions.’”)

       {¶20} Matthews also contends the trial court failed to conduct an independent

review because it failed to determine that a mathematical error occurred regarding the

amount of money Matthews paid to Williams. Based on the evidence presented in the

App.R. 9(C) statement and the itemized bill, Matthews only paid a total of $1,400
towards his fees. Therefore, there was no basis for the trial court to determine an error

occurred.

      {¶21} Matthews also contends the trial court erred by adopting the magistrate’s

decision to vacate the dismissal of Williams’s complaint because he discovered evidence

indicating that the court used Williams’s correct mailing address when it mailed notices

and orders to Williams. However, Matthews failed to present any such evidence in his

motion in opposition to Williams’s motion to vacate.

      {¶22} Matthews also contends the trial court could not have independently

reviewed the magistrate’s decision issued on May 24, 2011, because the court’s entry

adopting the decision is dated May 23, 2011. We do agree with Matthews that the date is

incorrect on the court’s adoption of the magistrate’s May 24, 2011 decision. The court’s

adoption of the decision is dated May 23, 2011, a day prior to the magistrate’s decision.

Because the court awarded the same amount of damages as the magistrate did in its

decision, the court obviously did not issue its decision until after it reviewed the

magistrate’s decision. Therefore, the wrong date is a clerical error, which can be fixed

by a nunc pro tunc entry by the trial court. See State v. Lester, 130 Ohio St.3d 303,

2011-Ohio-5204, 958 N.E.2d 142, ¶ 18-19 (courts possess the authority to correct an error

in a judgment entry so that the record speaks the truth); State v. Miller, 127 Ohio St.3d

407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15 (an error corrected by a nunc pro tunc entry

does not involve a legal decision or judgment). Accordingly, Matthews’ third, fifth,
tenth, and eleventh assigned errors are sustained in part as to the May 23, 2011 journal

entry.

                             Manifest Weight of the Evidence

         {¶23} In his fourth assigned error, Matthews argues the trial court’s award of fees

to Williams was against the manifest weight of the evidence because attorney Williams

was not sworn in prior to testifying and was, therefore, not a credible witness. He also

contends the attorney-client agreement did not include the number of hours Williams

worked on the case, and the itemized bill did not list the hourly rate being charged.

         {¶24} In determining whether a verdict is against the manifest weight of the

evidence, “[j]udgments 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., 54 Ohio

St.2d 279, 280, 376 N.E.2d 578 (1978). 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.

         {¶25}   Matthews refers to an excerpt of a transcript to show that attorney

Williams was not sworn in; however, no transcript of the proceedings exists. The record

consists of an App.R. 9(C) statement, which does not address the swearing in of attorney
Williams.      Without a certified transcript, we cannot give credence to Matthews’

recollection of what occurred. App.R. 9(B).

       {¶26} Matthews also contends the agreement did not detail the amount of hours

Williams spent on the case. However, because the attorney-client agreement is entered

into prior to the attorney working on the case, it would be impossible for the amount of

hours to be set forth in the contract. The agreement does state that Matthews would be

charged at the hourly rate of $185. Therefore, Matthews was aware of how much he

would be paying hourly, and the itemized bill provided the number of hours for which the

attorney was seeking compensation. Thus, by reading both documents in conjunction, the

court could easily determine the amount of fees due to Williams. Accordingly, adequate

evidence exists to support the trial court’s award. Matthews’ fourth assigned error is

overruled.

                                Failure to Record Hearing

       {¶27} In his sixth assigned error, Matthews contends the trial court erred by

failing to provide a court reporter or recording device to record the hearing.

       {¶28}     Civ.R. 53(D)(7) requires that the proceedings before a magistrate be

recorded in accordance with the procedures established by the court. Pursuant to Rule

8.02 of the Cleveland Municipal Court’s Local Rules of Practice and Procedure, “any

party desiring a record of proceedings in a civil case before a magistrate may arrange for

the attendance of a private court reporter at said party’s cost pursuant to Local Rule

12.01.” Therefore, pursuant to the procedures established in the Cleveland Municipal
Court, it was Matthews’ responsibility to retain a private court reporter if he desired one,

not the court.

       {¶29} There is also no evidence in the record to suggest that Matthews requested

that the proceedings be recorded. A party may not assign as error on appeal issues that

were not objected to in the trial court.         Toma v. Toma, 8th Dist. No. 82118,

2003-Ohio-4344, at ¶ 33, quoting Nenadal v. Landerwood, 8th Dist. No. 65428, 1994

Ohio App. LEXIS 2079 (May 12, 1994). See also Calhoun v. Calhoun, 8th Dist. No.

93369, 2010-Ohio-2347, where we held that because there was no evidence the appellant

requested that the proceedings be recorded, the issue was waived for purposes of appeal.

Accordingly, Matthews’ sixth assigned error is overruled.

                                      Oral Contract

       {¶30} In his seventh and eighth assigned errors, Matthews contends the trial court

erred by failing to conclude that an oral pro bono contract existed between him and

Williams.

       {¶31} We do not have a transcript of the proceedings, only the App.R. 9(C)

statement. “Unless the record transmitted on appeal includes an App.R. 9(C) statement

that affirmatively demonstrates error, we must presume the trial court committed no error

despite the fact the record is not complete.” (Emphasis added.) Rose Chevrolet, Inc. v.

Adams, 36 Ohio St.3d 17, 19, 520 N.E.2d 564 (1998).            Here, the record does not

affirmatively demonstrate that the magistrate erred by concluding a pro bono contract did

not exist. Accordingly, Matthews’ seventh and eighth assigned errors are overruled.
                Trial Court’s Failure to “Adopt” Magistrate’s Decision

       {¶32} In his ninth assigned error, Matthews argues that the trial court’s use of the

words, “approved” and “confirmed” do not result in the court adopting the magistrate’s

report because it did not use the word “adopt.”

       {¶33} Although Matthews cites to case law in support of his argument, none of

the cases he cites to stand for the proposition that the trial court must use the exact word,

“adopt,” in order to constitute a valid adoption of the magistrate’s decision. The use of

the alternative words, approved and confirmed, result in the same meaning. Therefore,

the trial court did not err by choosing to use the words approved and confirmed.

Accordingly, Matthews’ ninth assigned error is overruled.

                            Lack of a Final Appealable Order

       {¶34} In his 12th assigned error, Matthews argues that the trial court failed to

adopt the magistrate’s amended decision that included findings of fact and conclusions of

law and, thus, did not issue a final, appealable order.

       {¶35} In order to understand Matthews’ argument, it is necessary to consider the

timing of the events surrounding the trial court’s last entry. The magistrate had issued its

decision awarding judgment in Williams’s favor on May 24, 2011. Thereafter, the trial

court adopted the magistrate’s decision. On May 27, 2011, Matthews filed his objections

to the magistrate’s report, in which he included a request for findings of fact and

conclusions of law from the magistrate.
       {¶36} Responding to his request for findings of fact and conclusions of law, the

magistrate issued an amended decision on September 30, 2011, which had the same result

as its previous decision, but included sections for findings of fact and conclusions of law.

 On the same date, the trial court approved and confirmed the magistrate’s decision.

Thereafter, on October 6, 2011, Matthews filed his objections to the magistrate’s

amended decision.      On February       24, 2012, the trial court overruled Matthews’

objections and stated, “Judgment Entry Journalized May 24, 2011 is to remain in full

force and effect.” Thus, it appears the court failed to notice that it had also adopted the

magistrate’s amended decision on September 30, 2011.

       {¶37}    The    trial   court’s   adoption   entries   on   May     24,      2011   and

September 30, 2011 are identical in all respects. Therefore, the trial court’s journal entry

referring to the May 24, 2011 entry should have referred to its September 30, 2011 entry.

We conclude the trial court’s error was a clerical error and can be remedied by a nunc pro

tunc entry. Accordingly Matthews’ 12th assigned error has merit and is sustained.

       {¶38} Judgment affirmed; case remanded for the trial court to make corrections.

       It is ordered that appellee recover from appellant his 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, JUDGE

SEAN C. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR
