[Cite as Pierce v. Louis Elec., 2013-Ohio-4151.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



FLETCHER PIERCE                                       JUDGES:
                                                      Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellant                           Hon. John W. Wise, J.
                                                      Hon. Craig R. Baldwin, J.
-vs-
                                                      Case No. 2013 CA 00052
LOUIS ELECTRIC

        Defendant-Appellee                            OPINION




CHARACTER OF PROCEEDING:                           Civil Appeal from the Canton Municipal
                                                   Court, Case No. 2013 CVI 00167


JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            September 23, 2013



APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

FLETCHER PIERCE, PRO SE                            JOHN A. TSCHOLL
809 Lawrence Road NE                               1400 Market Avenue North
Canton, Ohio 44704                                 Canton, Ohio 44714
Stark County, Case No. 2013 CA 00052                                                     2

Wise, J.

       {¶1}   Appellant Fletcher Pierce appeals the decision of the Canton Municipal

Court, Stark County, which granted judgment in favor of Appellee Joseph Louis, dba

Louis Electric, in a small claims action concerning a dispute over a residential rewiring

agreement. The relevant facts leading to this appeal are as follows.

       {¶2}   On January 9, 2013, Appellant Pierce filed a small claims complaint in the

trial court, claiming that he had an oral contract with appellee to rewire a house on

Lawrence Road NE in compliance with the pertinent building codes, provide separate

electric service capability on the first and second floors, and add 220-volt service.

       {¶3}   The trial court scheduled a hearing before a magistrate for January 30,

2013. On February 8, 2013, after hearing the evidence, the magistrate issued a decision

in favor of appellee.

       {¶4}   Appellant filed an objection to the magistrate’s decision on February 19,

2013. The trial court thereupon overruled the objection and adopted the decision of the

magistrate.

       {¶5}   Appellant filed a notice of appeal on March 13, 2013. Appellant filed his

brief on May 13, 2013; appellee filed its brief on May 31, 2013.

       {¶6}   Although appellant’s brief fails to comply with the Appellate Rules at

numerous points,1 in the interest of justice, we will interpret appellant’s assigned errors

as follows:



1
   Appellant’s brief lacks a statement of facts and statement of the case, and there
appears to be no clear statement of separate assigned errors. In addition, the brief
commences with a photocopy of appellant’s objection to the decision of the magistrate;
we are unsure if appellant intends this document to be incorporated as part of his actual
appellate arguments or if it is provided merely for reference purposes. We are cognizant
Stark County, Case No. 2013 CA 00052                                                      3


       {¶7}   “I. THE TRIAL COURT’S DECISION IN FAVOR OF APPELLEE WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶8}   “II.   THE TRIAL COURT ERRED BY PERMITTING APPELLEE TO

INTRODUCE CERTAIN DOCUMENTS REGARDING THE ELECTRICAL WORK AT

ISSUE.”

                                                I.

       {¶9}   In the First Assignment of Error, appellant argues the trial court’s decision

in favor of appellee was against the manifest weight of the evidence.

       {¶10} Generally, a civil judgment which is supported by competent and credible

evidence may not be reversed as against the manifest weight of the evidence. See

State v. McGill, Fairfield App.No. 2004–CA–72, 2005–Ohio–2278, ¶ 18. In Eastley v.

Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517, 2012–Ohio–2179, the Ohio Supreme

Court reiterated the following in regard to appellate review of manifest weight

challenges in civil cases: “ ‘[I]n determining whether the judgment below is manifestly

against the weight of the evidence, every reasonable intendment and every reasonable

presumption must be made in favor of the judgment and the finding of facts. * * *.’ ” Id.

at 334, quoting Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461

N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section

603, at 191–192 (1978). A reviewing court must determine whether the finder of fact, in

resolving conflicts in the evidence, clearly lost his way and created such a manifest

miscarriage of justice that the judgment must be reversed and a new trial ordered. See


that appellant is proceeding pro se; however, “[w]hile insuring that pro se appellants * * *
are afforded the same protections and rights prescribed in the appellate rules, we
likewise hold them to the obligations contained therein.” State v. Wayt (Mar. 20, 1991),
Tuscarawas App.No. 90AP070045, 1991 W L 43005.
Stark County, Case No. 2013 CA 00052                                                     4

Hunter v. Green, Coshocton App.No. 12–CA–2, 2012–Ohio–5801, ¶ 25, citing Eastley,

supra.

         {¶11} A review of the record in the case sub judice indicates that appellant’s

objection to the decision of the magistrate was not accompanied by a transcript of the

trial before the magistrate, although such a transcript was prepared and filed for this

appeal. We have held on numerous occasions that where an appellant fails to provide a

transcript of the original hearing before the magistrate for the trial court's review, the

magistrate's findings of fact are considered established. See, e.g., State v. Leite (April

11, 2000), Tuscarawas App. No. 1999AP090054. The Ohio Supreme Court has

determined that in such a situation, “*** the appellate court is precluded from

considering the transcript of the hearing submitted with the appellate record.” See State

ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730, 654 N.E.2d

1254. “[T]he reviewing court is only permitted to determine if the application of the law

was proper or if it constituted an abuse of discretion.” Eiselstein v. Baluck, 7th Dist.

Mahoning No. 11 MA 74, 2012-Ohio-3002, ¶ 18. Furthermore, “[t]here is no abuse of

discretion on the part of the trial court in its decision to overrule objections to factual

findings where the party objecting has failed to file a transcript.” Remner v. Peshek

(Sept. 30, 1999), Mahoning App.No. 97-CA-98, 1999 WL 803441 (additional citation

omitted).

         {¶12} In this instance, the magistrate, having heard the testimony and reviewed

the documents and exhibit photographs related to the rewiring, found that the testimony

was in conflict and that no complete written documentation existed as to the parties’

agreement; hence, the magistrate was unable to determine the exact nature of the work
Stark County, Case No. 2013 CA 00052                                                          5

agreed to be completed. See Decision at 1. We find no error or abuse of discretion in

the trial court’s application of the law to the magistrate’s findings of fact. Appellant's First

Assignment of Error is therefore overruled.

                                                  II.

       {¶13} In the Second Assignment of Error, appellant contends the trial court erred

in allowing appellee to rely on “estimate” documents regarding the electrical work at

issue. We disagree.

       {¶14} The admission or exclusion of evidence rests in the sound discretion of

the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180. As a general rule, all

relevant evidence is admissible. Evid.R. 402. Our task is to look at the totality of the

circumstances and determine whether the trial court acted unreasonably, arbitrarily or

unconscionably in regard to the disputed evidence. State v. Oman (Feb. 14, 2000),

Stark App.No. 1999CA00027. Under Evid.R. 803(6), the following are excepted from the

hearsay rule: “A memorandum, report, record, or data compilation, in any form, of acts,

events, or conditions, made at or near the time by, or from information transmitted by, a

person with knowledge, if kept in the course of a regularly conducted business activity,

and if it was the regular practice of that business activity to make the memorandum,

report, record, or data compilation, all as shown by the testimony of the custodian or

other qualified witness ***.”

       {¶15} Based on our limited scope of review due to the lack of a transcript

provided for the trial court’s consideration, we are unpersuaded that the allowance of

the written estimates as business records evidence in this matter constituted an abuse

of the trial court’s discretion.
Stark County, Case No. 2013 CA 00052                                              6


      {¶16} Accordingly, appellant's Second Assignment of Error is overruled.

      {¶17} For the foregoing reasons, the judgment of the Canton Municipal Court of

Stark County, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.

                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. W. SCOTT GWIN


                                          ___________________________________
                                           HON. CRAIG R. BALDWIN
JWW/d 0909
Stark County, Case No. 2013 CA 00052                                          7


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




FLETCHER PIERCE                            :
                                           :
       Plaintiff-Appellant                 :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
LOUIS ELECTRIC                             :
                                           :
       Defendant-Appellee                  :         Case No. 2013 CA 00052




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

judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed.

       Costs assessed to appellant.




                                           ___________________________________
                                           HON. JOHN W. WISE


                                           ___________________________________
                                           HON. W. SCOTT GWIN


                                           ___________________________________
                                           HON. CRAIG R. BALDWIN
