Grant-Ross v. Dunsmore , 2021 Ohio 3509 ( 2021 )

[Cite as Grant-Ross v. Dunsmore, 2021-Ohio-3509.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
April Grant-Ross and Alvin Ross Court of Appeals No. L-20-1203
Appellees Trial Court No. CVG-20-11922
v.
Diana M. Dunsmore DECISION AND JUDGMENT
Appellant Decided: September 30, 2021
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Matthew L. Weisenburger, for appellant.
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DUHART, J.
{¶ 1} This case is before the court on appeal by appellant, Diana Dunsmore, from
the November 4, 2020 judgment of the Toledo Municipal Court. For the reasons that
follow, we reverse.
{¶ 2} Appellant sets forth two assignments of error:
1. Due to the actions of the Appellee[s] title did not transfer as
between Appellant and Appellee[s] meaning Appellant maintained
ownership of the property.
2. Appellant had “color of title” based on the unsatisfied purchase
contract, and therefore the eviction was improper.
Background
{¶ 3} In the fall of 2020, appellant placed her house (“property” or “premises”) up
for sale by owner. On September 23, 2020, appellant and appellees, April Grant-Ross
and Alvin Ross, entered into a contract in which appellees agreed to purchase the
property from appellant for $147,500. Per the contract, appellees agreed to pay off
appellant’s equity line of credit in the amount of $59,000, then the remainder due was
$88,500.
{¶ 4} Appellees paid off the equity line of credit on September 30, 2020, via a
wire transfer. On October 6, 2020, appellant accepted a cashier’s check from appellees’
attorney, in the amount of $88,500, issued by Glass City Federal Credit Union. Also on
October 6, 2020, appellant entered into an agreement with appellee Grant-Ross wherein
appellant agreed to vacate the property on October 12, 2020. Along with this agreement,
appellant executed a quit claim deed transferring the property to appellees “in
consideration of a payment of $147,500.” The deed was delivered to appellees’ attorney.
2.
{¶ 5} Appellant deposited the cashier’s check with the Parish Federal Credit
Union on October 7, 2020, and a 10-day hold was placed on the funds. Thereafter, a
stop-payment was placed on the cashier’s check.
{¶ 6} On October 13, 2020, the deed was recorded. That same day, appellees
served appellant with a document entitled “Requesting Tenant to Leave Premises (Three-
day Notice) Ohio R.C. 1923.04.” Appellees asked appellant to leave the property due to
“Squatting in my home I pay for because my house was burn down[.]”
{¶ 7} On October 19, 2020, appellees filed a complaint for forcible entry and
detainer for damages in Toledo Municipal Court. On October 28, 2020, appellant filed
an answer and counterclaim.
{¶ 8} On November 2, 2020, a hearing was held before a magistrate, and
Magistrate’s Decision and Findings were issued. In the decision, the magistrate found:
appellant “in possession of premise w/o color of title since 8-7-20”; “[n]otice to vacate
(was) lawfully served”; and appellees “bought property & quit claim deed conveyed[.]”
Also in the decision, the magistrate entered judgment for appellees for possession of the
property, with a set out writ of restitution to issue at appellees’ request. Appellees filed a
praecipe for a writ of restitution on November 2, 2020.
{¶ 9} On November 3, 2020, the judge issued a judgment entry, adopting the
magistrate’s decision, and ordering that: appellees were “granted judgment for possession
of the premises”; “a Writ of Restitution shall issue * * * at [appellees’] request for
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execution of a SET OUT eviction”; and “the Bailiff shall execute the writ.” The entry
was journalized on November 4, 2020, and stated it was a final and appealable order.
{¶ 10} On November 4, 2020, a writ of restitution for set-out was issued.
{¶ 11} On November 5, 2020, appellant filed objections to the magistrate’s
decision. On November 16, 2020, appellees filed a response to appellant’s objections.
{¶ 12} On November 19, 2020, appellant’s objections to the magistrate’s decision
were denied on the basis that “no transcript [was] provided.”
{¶ 13} On December 3, 2020, appellant filed a notice of appeal. The municipal
court case was stayed pending appeal. Appellant filed a brief. Appellees did not file a
brief.
Law
{¶ 14} This case involves an appeal of the trial court’s judgment in which the
court adopted the magistrate’s decision and denied appellant’s objections to the
magistrate’s decision.
{¶ 15} Civ.R. 53 governs magistrate decisions and the subsequent actions of
litigants and the trial court. Civ.R. 53(D), entitled “Proceedings in Matters Referred to
Magistrates,” states in relevant part:
***
(3) Magistrate’s Decision; Objections to Magistrate’s Decision
***
4.
(b) Objections to Magistrate’s Decision.
(i) Time for Filing. A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision,
whether or not the court has adopted the decision during that fourteen-day
period as permitted by Civ.R. 53(D)(4)(e)(i). * * *
***
(iii) Objection to Magistrate’s Factual Finding; Transcript or
Affidavit. An objection to a factual finding, whether or not specifically
designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be
supported by a transcript of all the evidence submitted to the magistrate
relevant to that finding or an affidavit of that evidence if a transcript is not
available. With leave of court, alternative technology or manner of
reviewing the relevant evidence may be considered. The objecting party
shall file the transcript or affidavit with the court within thirty days after
filing objections unless the court extends the time in writing for preparation
of the transcript or other good cause. If a party files timely objections prior
to the date on which a transcript is prepared, the party may seek leave of
court to supplement the objections.
{¶ 16} In Lincoln v. Rush Expediting, Inc., 2d Dist. Montgomery No. 23847,
2010-Ohio-5286, ¶ 10, the appellate court ruled that “[t]he trial court erred when it
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overruled Lincoln’s objection to the magistrate’s factual finding without allowing
Lincoln the thirty days in which to obtain and file a transcript of the hearing before the
magistrate that Civ.R. 53(D)(3)(b)(iii) now permits.” The appellate court made this
ruling after recognizing that “Lincoln does not assign the Civ.R. 53(D)(3)(b)(iii) error the
[trial] court committed for our review.” Id. at ¶ 11. Thus, an appellate court “may notice
the [trial] court’s error only under the plain error doctrine.” Id. The appellate court,
citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997), set
forth:
“[I]n appeals of civil cases, the plain error doctrine is not favored
and may be applied only in the extremely rare case involving exceptional
circumstances where error, to which no objection was made at the trial
court, seriously affects the basic fairness, integrity, or public reputation of
the judicial process, thereby challenging the legitimacy of the judicial
process itself.” Id.{¶ 17} The appellate court found “[t]he error was in the [trial] court’s final
judgment * * * to which Lincoln could not have objected. * * * The error the trial court
committed puts Lincoln in a classic ‘Catch 22’ dilemma. It affects the basic fairness of
the proceeding in which his claim for relief was adjudicated adversely to him. Therefore,
* * * the error is plain error.” Id. at ¶ 12-13.
6.
Analysis
The timeline of the proceedings in the trial court relating to and following
the magistrate’s decision include:
November 2, 2020: Hearing before magistrate; magistrate’s decision
filed.
November 4, 2020: Trial court filed entry adopting magistrate’s
decision.
November 5, 2020: Appellant filed objections to magistrate’s
decision.
November 16, 2020: Appellees filed response to appellant’s
objections.
November 19, 2020: Trial court denied appellant’s objections due to
lack of transcript.
December 3, 2020: Appellant appealed. The transcript of the
hearing before the magistrate was submitted with the appellate record.
{¶ 18} Upon review, we find the trial court committed plain error by denying
appellant’s objections due to lack of transcript fourteen days after she filed her
objections, and by not affording appellant an opportunity to file the transcript within
thirty days of filing her objections, as permitted by Civ.R. 53(D)(3)(b)(iii). Like in
7.
Lincoln, the trial court’s error “affects the basic fairness of the proceeding.” We
therefore find the trial court’s judgment cannot stand and must be reversed.
{¶ 19} On consideration, the November 4, 2020 judgment of the Toledo Municipal
Court is reversed. This matter is remanded to the trial court for further proceedings
consistent with this decision. The costs of this appeal are assessed to appellees pursuant
to App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, P.J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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