Hornsby v. Gosser , 2015 Ohio 162 ( 2015 )


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  • [Cite as Hornsby v. Gosser, 
    2015-Ohio-162
    .]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    WARREN COUNTY
    VICKY HORNSBY,                                      :
    Plaintiff-Appellee,                         :     CASE NO. CA2013-12-134
    :          OPINION
    - vs -                                                       1/20/2015
    :
    TERRY L. GOSSER,                                    :
    Defendant-Appellant.                        :
    CIVIL APPEAL FROM WARREN COUNTY COURT
    Case No. 2012 CVF 00504
    Andrew P. George, 1160 East Main Street, P.O. Box 36, Lebanon, Ohio 45036, for plaintiff-
    appellee
    Terry L. Gosser, 4987 Mary Louise Ct., Morrow, Ohio 45152, defendant-appellant, pro se
    RINGLAND, P.J.
    {¶ 1} Defendant-appellant, Terry Gosser, appeals from a decision in the Warren
    County Court granting judgment in favor of plaintiff-appellee, Vicky Hornsby. For the reasons
    detailed below, we affirm.
    {¶ 2} The record reflects that Gosser and Hornsby were in a romantic relationship for
    several years. In November 2010, Gosser purchased in Warren County, Ohio and Hornsby
    moved into Gosser's house. In exchange, Hornsby agreed to pay for the utility expenses.
    Warren CA2013-12-134
    {¶ 3} Approximately 14 months later, in January 2012, Gosser and Hornsby
    separated and Hornsby moved out of Gosser's home. Hornsby then filed this lawsuit against
    Gosser based upon various theories of recovery including unjust enrichment, wrongful
    eviction, and replevin of her French Bulldog. Hornsby claimed that she had expended large
    sums of money on renovations to Gosser's home based on the understanding that both she
    and her daughter would be able to live on that property. Gosser denied Hornsby's allegations
    and also made a counterclaim for damages alleging that Hornsby had damaged the house
    and taken various items from the property.
    {¶ 4} After a bench trial, the magistrate awarded $3,574.88 in damages to Hornsby
    for the reasonable expenses she made in improving the house. The magistrate did not
    award damages on the issues related to Hornsby's wrongful eviction claim and the dog
    ownership issue. Finally, the magistrate found that Gosser failed to sustain his burden of
    proof related to his counterclaim and dismissed the counterclaim. The trial court overruled
    Gosser's objections and adopted the magistrate's decision in its entirety. Gosser now
    appeals, pro se, raising three assignments of error for review.
    {¶ 5} Assignment of Error No. 1:
    {¶ 6} THE COURT ERRED IN RULING THAT DISCOVERY WAS COMPLETE ON
    AUGUST 5 AFTER THE COURT CONTINUED PRE-TRIAL FOR THAT DATE AND AFTER
    NOTIFYING THE APPELLANT THAT HE DID NOT HAVE TO APPEAR.
    {¶ 7} In his first assignment of error, Gosser argues the trial court erred in ordering
    that discovery be complete on August 5, 2013. Gosser claims that he was prejudiced as a
    result of the discovery deadline, because he was unable to obtain "financial records"
    pertinent to the receipts and cancelled checks presented by Hornsby at trial.1 We find no
    1. It is undisputed that Gosser was presented with the pertinent receipts and cancelled checks during discovery.
    Nevertheless, Gosser claims that he was not provided sufficient time for discovery. Although Gosser does not
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    Warren CA2013-12-134
    merit to this argument.
    {¶ 8} A trial court maintains discretion to manage the discovery process. Ohio Valley
    Associated Bldrs. & Contrs. v. Rapier Elec., Inc., 12th Dist. Butler Nos. CA2013-07-110 and
    CA2013-07-121, 
    2014-Ohio-1477
    , ¶ 15. This court reviews a trial court's decision to impose
    discovery sanctions for an abuse of discretion. Id.; Lucchesi v. Fischer, 12th Dist. Clermont
    No. CA2008-03-023, 
    2008-Ohio-5935
    , ¶ 6. A decision constitutes an abuse of discretion
    only when it is found to be unreasonable, arbitrary, or unconscionable. Garver Rd. Invest.,
    L.L.C. v. Diversapack of Monroe, L.L.C., 12th Dist. Butler Nos. CA2013-10-181 and CA2013-
    10-183, 
    2014-Ohio-3551
    , ¶ 13.
    {¶ 9} Based on our review, we find the trial court did not abuse its discretion by
    setting a date for the completion of discovery. This action was filed on May 17, 2012 and a
    discovery deadline of August 5, 2013 was established following several continuances and
    delays in the proceedings. Gosser had ample opportunity to conduct discovery during this
    lengthy proceeding, which involved relatively simple matters. In addition, "[i]t has long been
    well established that a trial court has wide discretion in control of its own docket." Penix v.
    Avon Laundry & Dry Cleaners, 8th Dist. Cuyahoga No. 91355, 
    2009-Ohio-1362
    , ¶ 33 (trial
    court did not abuse its discretion by imposing a discovery deadline). As such, the trial court
    did not err in establishing the pertinent discovery deadline, which was nearly 15 months after
    the commencement of the action. Gosser's first assignment of error is without merit.
    {¶ 10} Assignment of Error No. 2:
    {¶ 11} THE COURT ERRED IN ALLOWING THE SUMMARY OF RECEIPTS AND
    ANY OF THE RECEIPTS INTO EVIDENCE BECAUSE THE SUMMARY WAS PREPARED
    specifically reference the type of "financial records" he is seeking, Gosser implies that he should have been
    presented with an itemized list during discovery detailing the specific items purchased and its relevance on the
    issue of home improvements.
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    Warren CA2013-12-134
    BY THE ATTORNEY FOR THE APPELLEE. ALSO ALL OF THE RECEIPTS SHOULD NOT
    HAVE BEEN ALLOWED INTO EVIDENCE BECAUSE THERE WAS NO TESTIMONY AS
    TO ANY OF THE RECEIPTS.
    {¶ 12} In his second assignment of error, Gosser argues that the trial court erred by
    allowing Hornsby to present a document that summarized the pertinent amounts of money
    that Hornsby spent on Gosser's home and represented a total overview of those payments.
    Gosser's argument is meritless.
    {¶ 13} Initially, Gosser's assertion that there was no testimony with respect to the
    receipts is not supported by our review of the evidence. Hornsby clearly testified that the
    receipts entered into evidence reflected amounts paid for renovations of Gosser's home.
    {¶ 14} Next, we address Gosser's claim with respect to the summary of those receipts.
    Evid.R. 1006 allows "[t]he contents of voluminous writings, recordings, or photographs which
    cannot conveniently be examined in court" to be "presented in the form of a chart, summary
    or calculation." For a summary to be admissible, the documents on which it was based must
    be admitted or offered into evidence or their absence explained. Marder v. Marder, 12th Dist.
    Clermont No. CA2007-06-069, 
    2008-Ohio-2500
    , ¶ 52; Eysoldt v. ProScan Imaging, 1st Dist.
    Hamilton Nos. Nos. C-100528 and C-100529, 
    2011-Ohio-2359
    , ¶ 34.
    {¶ 15} The record reflects that the summary provided to the trial court represented a
    consolidated list of relevant expenses that Hornsby had made to Gosser's benefit for home
    renovations. The summary was attached as part of an exhibit containing all of the receipts
    being claimed as renovation expenses that Hornsby spent on Gosser's home. Gosser had
    the opportunity to cross examine Hornsby on the appropriateness of each expense or dispute
    those calculations, but failed to do so. Based on our review, we find no error in the
    introduction of the summary of receipts. E.g., Hughes v. Lanham, 12th Dist. Warren No.
    CA2003-10-108, 
    2004-Ohio-7142
    , ¶ 41 (finding no error where "[t]he summary document
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    was simply an aid used to present an overview of the claims made by appellees").
    Accordingly, we find Gosser's second assignment of error is without merit.
    {¶ 16} Assignment of Error No. 3:
    {¶ 17} THE COURT ERRED IN NOT ALLOWING THE APPELLANT TO PRESENT
    THE TESTIMONY FROM HIS WITNESSES IN SUPPORT OF HIS CLAIMS FOR
    DAMAGES. THE MAGISTRATE'S REFUSAL TO ALLOW THE APPELLANT TO PRESENT
    ANY TESTIMONY IN SUPPORT OF HIS COUNTERCLAIM WAS ABUSE OF DISCRETION.
    {¶ 18} In his third assignment of error, Gosser claims the trial court abused its
    discretion by dismissing a witness, Sue Matson, who Gosser claims was relevant to his
    counterclaim. We find no merit to Gosser's argument.
    {¶ 19} A trial court has the discretion to exercise reasonable control over the
    examination of witnesses, including the direct examination of witnesses. Camp v. Von Stein,
    12th Dist. Clinton No. CA92-03-006, 
    1992 WL 379377
    , at *1 (Dec. 21, 1992); Hartman v.
    Wal-Mart Stores, Inc., 12th Dist. Butler No. CA2002-02-029, 
    2003-Ohio-78
    , ¶ 15.
    {¶ 20} In the present case, Matson was present at Gosser's home on the day Hornsby
    removed her personal effects from the home. In short, Gosser, appearing pro se, attempted
    to elicit testimony from Matson about the details of the day and the demeanor of the
    individuals helping Hornsby move. Matson testified about the details of several incidents that
    occurred during the course of the move and was asked to testify about alleged damages to
    2
    Gosser's home. Specifically, the following dialogue took place:
    GOSSER: What happened when you returned [to Gosser's house]?
    MATSON: It was a mess, it was just chaotic, screaming. I mean,
    they weren't happy that I was there, to the point where I was afraid
    and I called for backup, my sister and her husband.
    2. On the day that Hornsby moved, Matson carried a video camera and followed Hornsby and her friends and
    family around the home in an attempt to show that Hornsby's friends and family members were rude and unruly
    during the move.
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    Warren CA2013-12-134
    GOSSER: And did you see a Todd Wilson and the plaintiff's sister
    there?
    MATSON: Yeah, he was probably the most belligerent of everyone
    there.
    GOSSER: And, how about the sister?
    MATSON: She was probably second, well, tied with her daughter.
    THE COURT: Sir, what's the relevance of this?
    GOSSER: Because they had something to do with some of
    the damage that took place.
    THE COURT: Well, then ask questions about damages.
    [Matson] can only testify as to what she has of personal
    knowledge of any damage done to your home. Not attitudes
    and stuff like that. I don't want to hear that, so if she has
    personal knowledge, where she actually witnessed
    something happened, that's what she can testify to, nothing
    else.
    GOSSER: Where was the plaintiff when all this happened?
    MATSON: Different rooms. I mean, she was at the house, but they
    were all in different rooms at different times, so she's running
    around.
    GOSSER: But, was she aware of what was going on?
    HORNSBY'S COUNSEL: Objection.
    THE COURT: Objection sustained. Sir, you can't ask her
    what was in somebody else's mind. Sir, did you hear what I
    said a little bit ago? You can ask her what she saw and what
    she has personal knowledge of, that's all.
    After several minutes of largely irrelevant testimony, and repeated attempts by the magistrate
    to contain questions to relevant matters, the trial court dismissed Matson as a witness and
    requested that Gosser call a new witness.
    THE COURT: All right, you're going to get to testify. Do you have
    any more questions of her?
    GOSSER: Yeah, during the move, did you witness Todd Wilson
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    Warren CA2013-12-134
    who was helping plaintiff - - there was a part where you had
    mentioned to Vicki how petty it was for her to take all the blinds.
    THE COURT: Sir, come on. All right, no more questions ma'am,
    please step down. I've told you what we need to have testimony on,
    you're not listening to me so step down ma'am, you're finished. Do
    you have another witness on the issues relevant to the case or do
    you want to testify?
    GOSSER: Patty Dorton.
    THE COURT: Okay. We're not going to listen to people yelling at
    people. You have a lawsuit and a counterclaim. That's what we're
    here for today. We're not airing everything else * * *.
    Following Matson's dismissal as a witness, Gosser called Patty Dorton and Joyce Gosser
    Trace to offer additional testimony regarding his counterclaim and Hornsby's original
    complaint. Thereafter, Gosser testified on his own behalf.
    {¶ 21} Because Gosser failed to object to the dismissal of his witness, he has waived
    all except plain error. Henry v. Richardson, 12th Dist. Butler Nos. CA2010-05-110 and
    CA2010-05-127, 
    2011-Ohio-2098
    , ¶ 22. In the civil context, the plain error doctrine applies
    only when an error "seriously affects the basic fairness, integrity, or public reputation of the
    judicial process." Id.; Ogle v. Hocking Cty., 4th Dist. Hocking No. 14CA3, 
    2014-Ohio-5422
    , ¶
    28.
    {¶ 22} After review, we find no error. This court has reviewed both the trial transcript
    and the videotape of the proceedings and finds no error in excusing Matson. The record
    reflects that Gosser was repeatedly warned that the information he was eliciting from Matson
    was wholly irrelevant and of no consequence to the outcome of the proceeding.
    Nevertheless, Gosser continued to ask Matson about those irrelevant matters. Following
    several warnings and admonitions, the trial court excused the witness after several minutes
    of largely irrelevant testimony. The dismissal of Matson from the witness stand was a matter
    of discretion by the trial court in exercising reasonable control over the examination of a
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    Warren CA2013-12-134
    witness.
    {¶ 23} Moreover, appellant failed to proffer any testimony that Matson would have
    provided the court had the trial court not dismissed Matson from the stand. See, e.g., Barker
    v. Glen Meadows Nursing Home, 12th Dist. Butler No. CA2008-06-145, 
    2009-Ohio-2626
    , ¶
    14 (an appellate court need not review the propriety of such arguments "unless the claimed
    error is preserved by an objection, proffer, or ruling on the record when the issue is actually
    reached and the context is developed at trial"). Absent such a proffer, Gosser's claim that he
    was prejudiced by the dismissal of Matson as a witness is based largely on conjecture and
    innuendo that are not proper considerations for this appeal. Accordingly, Gosser's third
    assignment of error is without merit.
    {¶ 24} Judgment affirmed.
    HENDRICKSON and PIPER, JJ., concur.
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