[Cite as Greater Dayton Premier Mgt. v. Pickens, 2017-Ohio-477.]




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

 GREATER DAYTON PREMIER                               :
 MANAGEMENT                                           :
                                                      :    C.A. CASE NO. 27261
         Plaintiff-Appellee                           :
                                                      :    T.C. NO. 15CVG4861
 v.                                                   :
                                                      :    (Civil Appeal from
 WILLIAM PICKENS, SR.                                 :     Municipal Court)
                                                      :
         Defendant-Appellant                          :

                                              ...........

                                              OPINION

              Rendered on the ___10th ___ day of _____February_____, 2017.

                                              ...........

CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 400 Wayne Avenue, Dayton, Ohio
45410
      Attorney for Plaintiff-Appellee

WILLIAM PICKENS, SR., 2765 Wentworth Avenue, #503, Dayton, Ohio 45406
      Defendant-Appellant
                              .............

DONOVAN, J.

        {¶ 1} Defendant-appellant William Pickens, Sr. appeals, pro se, a judgment of the

Dayton Municipal Court adopting the decision of the magistrate granting plaintiff-appellee

Greater Dayton Premier Management’s (hereinafter “GDPM”) action for forcible entry and

detainer evicting Pickens from his rental property based on his failure to pay rent. The

trial court issued its decision on August 23, 2016. Pickens filed a timely notice of appeal
                                                                                       -2-


with this Court on September 9, 2016.

      {¶ 2} The record establishes that on November 5, 2015, GDPM filed a complaint

against Pickens for failure to pay rent from the month of May in 2015, through October of

2015. The documents submitted to the trial court, including the rental agreement signed

by Pickens, establish that his monthly rent was $231.00. Accordingly, in light of Pickens’

failure to pay rent for the six month period between May and October of 2015, GDPM

sought damages from him in the amount of $1,386.00.

      {¶ 3} A hearing was held before the magistrate regarding GDPM’s complaint on

December 4, 2015. At the hearing, Pickens gave the following testimony upon being

questioned by the magistrate:

             The Court: Mr. Pickens are you behind in rent, sir?

             Pickens: Yes, I am.

             Q: And do you have a legal defense for being behind?

             A: There was a verbal agreement that would exclude one month of

      the rent and when I went to pay the rent that was due they charged me for

      court costs which I wasn’t responsible for and when I continually tried to pay

      the rent they stopped – they refused to receive the rent.

             Q: So how many months are you behind?

             A: This is now since this is November [2015] – eight [months].

             Q: And you didn’t put your rent in escrow?

             A: I put it in escrow and the stay of writ of restitution and they –

             Q: You have an escrow account with our Court?

             A: I haven’t opened an escrow account on this case. The case
                                                                                 -3-

where I had entered the stay of writ for (inaudible) restitution –

***

        Pickens: Ok that’s why – I entered the stay – the request for stay. It

was granted. I’ve been paying my rent to the Court. During that time I’ve

been trying to get GDPM to clear up the issue of the verbal agreement and

the court costs.

        The Court: Ok[,] so what I’m asking you is you’ve opened up an

account with the clerk under an escrow account and you’ve paid your rent

here?

        A: No, Your Honor.

        Q: Well that’s what an escrow account is so what you are saying –

        A: What I did – I was told by the Court to make deposit of the rent,

the amount [is] $231.00 per month, to maintain the (inaudible) and that’s

what I’ve been doing.

        Q: What case number is that under? Counsel [for GDPM], do you

know what he’s talking about?

        GDPM: Ugh huh[,] but evidentally – he was filed for an eviction for

having a lock on his door back in March of this year.

        The Court: All right.

        GDPM: We did not accept.

***

        GDPM: In April[,] we dismissed the case. He didn’t pay April [rent].

He didn’t pay May. He says that we were adding court costs to his rent.
                                                                                       -4-


      It was removed.     He didn’t pay May.       He didn’t pay June.    He didn’t

      change the lock. He didn’t pay August. We filed him for eviction. He

      asked for a grievance hearing.         Before the grievance hearing decision

      came out although he was (inaudible). Subsequently dismissed that case.

      That was the case he was paying escrow on. We had a grievance hearing

      on the notice we gave him in September [2015]. He told us he would be

      able to pay us all of the rent by October 5th. He did not pay it by October

      5th. We gave him a notice on October 10th which gave him the right to

      have all the rent paid by the 26th of October. He did not pay it in October

      by October 26th. It is now – we filed him in November [2015] and that’s

      what we are here on. He has not paid rent since April of this year [2015].

             The Court: Ok, sir, do you have receipts to show that you are current

      in your rent?

             Pickens: What I have is the money orders for the rent that I’ve been

      trying to turn over to GDPM which they were refusing to accept.

             The Court: So you are behind.           All right[,] I’m going to grant

      restitution of the premises with the second cause continued. You [Pickens]

      need to make sure you finish moving your belongings out before the bailiff

      arrives and if you want to dispute the amount of money they are claiming

      that you owe you need to make sure you file your answer and we will hear

      those issues at a later hearing. ***

      {¶ 4} After the hearing, the trial court issued a judgment entry on December 4,

2015, finding that Pickens had breached the terms of his rental agreement by failing to
                                                                                          -5-


pay his rent. The trial court also found that Pickens had failed to place any rent money

in escrow and granted GDPM restitution of the rental premises.            Pickens filed his

objections to the magistrate’s decision on December 4, 2015, the same day the

magistrate’s decision was issued. GDPM filed its motion to overrule Pickens’ objections

on January 5, 2016. Thereafter, on August 19, 2016, GDPM filed its brief in opposition

to Pickens’ objections to the magistrate’s decision. On August 23, 2016, the trial court

issued a decision overruling Pickens’ objections and adopting the magistrate’s decision

in its entirety. Specifically, the trial court found that Pickens was in arrears for his rent

payments from May 2015 through October 2015, and granted restitution of the rental

premises to GDPM.

       {¶ 5} It is from this judgment that Pickens now appeals.

       {¶ 6} Pickens’ sole assignment of error is as follows:

       {¶ 7} “THE MAGISTRATE DISPLAYED JUDICIAL MISCONDUCT IN THAT

CONTRADICTORY STATEMENTS MADE BY APPELLEE WERE CONSIDERED IN

THE DECISION WHILE FACTUAL STATEMENTS OF APPELLANT WERE NOT.”

       {¶ 8} Initially, we note that in his sole assignment, Pickens seemingly

misunderstands the applicable appellate standard of review in the instant case. Our

standard of review focuses upon whether the trial court abused its discretion when it

chose to either adopt or reverse the magistrate’s decision. We will proceed as if Pickens’

assigned error discussed how the trial court abused its discretion when it adopted the

magistrate’s decision and granted restitution of the premises to GDPM.

       {¶ 9} The appropriate standard to be employed by the trial court when reviewing a

magistrate's decision we set forth in Quick v. Kwiatkowski, 2d Dist. Montgomery No.
                                                                                         -6-


18620, 2001 WL 871406, *3 (Aug. 3, 2001):

             Magistrates    are   neither   constitutional   nor   statutory   courts.

      Magistrates and their powers are wholly creatures of rules of practice and

      procedure promulgated by the Supreme Court. Therefore, magistrates do

      not constitute a judicial tribunal independent of the court that appoints

      them. Instead, they are adjuncts of their appointing courts, which remain

      responsible to critically review and verify the work of the magistrates they

      appoint. * * * Civ.R. 53(E)(4)(b) contemplates a de novo review of any issue

      of fact or law that a magistrate has determined when an appropriate

      objection is timely filed. The trial court may not properly defer to the

      magistrate in the exercise of the trial court's de novo review. The magistrate

      is a subordinate officer of the trial court, not an independent officer

      performing a separate function.

             The “abuse of discretion” standard that the trial court applied to

      review the decision of its magistrate is an appellate standard of review. It is

      applicable to the review performed by a superior court of the judgments and

      orders of inferior courts. Inherent in the abuse of discretion standard are

      presumptions of validity and correctness, which acknowledge the

      independence of the inferior courts by deferring to the particular discretion

      they exercise in rendering their decisions. Because its magistrate does not

      enjoy that independence, such presumptions are inappropriate to the trial

      court's review of a magistrate's decisions. Therefore, a trial court errs when

      it applies the abuse of discretion standard of review in ruling on Civ.R.
                                                                                      -7-


       53(E)(3) objections to the decision of the appointed magistrates * * *.

       {¶ 10} Pickens also seemingly misapprehends that this court cannot disturb a trial

court's decision as being against the manifest weight of the evidence if the decision is

supported by some competent and credible evidence. C.E. Morris Company v. Foley

Construction Company, 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

       {¶ 11} Pickens asserts the following arguments for our review: 1) GDPM

improperly refused to accept his rent payments; 2) he should not have to pay the full

amount of rent based upon an alleged oral agreement with GDPM for the month of April,

2015; and 3) that he is owed approximately $39,000.00 stemming from an accident for

which he argues GDPM is responsible. Pickens’ arguments are not supported by the

record in the instant case.

       {¶ 12} In reviewing Pickens’ argument, we must be guided by the presumption that

the trial court is best able to view the witnesses and observe their demeanor, gestures,

and voice inflections, and to use these observations in weighing the credibility of the

proffered testimony. Seasons Coal Company, Inc. v. Cleveland, 10 Ohio St.3d 77, 80,

461 N.E.2d 1273 (1984). We must defer to the factual findings of the judge regarding

the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. We may not substitute our judgment for that of

the trier of fact. Pons v. Ohio State Medical Board, 66 Ohio St.3d 619, 621, 614 N.E.2d

748 (1993).

       {¶ 13} Upon review, we conclude that the record in the instant case supports the

trial court’s decision to adopt the magistrate’s decision granting GDPM’s complaint in

forcible entry and detainer against Pickens. Pickens acknowledged that while he had
                                                                                      -8-


purportedly attempted to remit his rent payment to GDPM, after the filing of an eviction

complaint upon refusal thereof, he did not place any of the disputed rent payments into

escrow with the trial court. Furthermore, there is no evidence of such money orders in

the record nor is there any evidence in the record that GDPM was required to accept them

while this civil action was pending. Simply put, Pickens admitted to not placing the

disputed payments into escrow as required by law. The fact that he had escrowed rent

in an earlier eviction filing, covering an earlier time frame (which was subsequently

dismissed by GDPM) is wholly irrelevant. Furthermore, there is no evidence in the

record that GDPM is responsible for the $39,000.00 in damages purportedly incurred by

Pickens in a vehicular traffic accident. Thus, on the record before us, we cannot say the

trial court abused its discretion in overruling Pickens’ objections to the magistrate's

decision, and adopting the decision as its own.

       {¶ 14} Pickens’ sole assignment of error is overruled.

       {¶ 15} Pickens’ sole assignment of error having been overruled, the judgment of

the trial court is affirmed.

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

FROELICH, J. and WELBAUM, J., concur.




Copies mailed to:

Christopher C. Green
William Pickens, Sr.
Hon. Mia Wortham Spells
