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MacConnell v. Nellis

Court of Appeals of Ohio, Second District

January 16, 2004

RION T. MACCONNELL Plaintiff-Appellant
v.
ALBERT A. NELLIS Defendant-Appellee

Civil Appeal from Kettering Municipal Court T.C. Case No. 03-CVI-02428

RION MACCONNELL, Plaintiff-Appellant, Pro Se

ALBERT A. NELLIS, Defendant-Appellee, Pro Se

OPINION

BROGAN, J.

{¶1} Rion T. MacConnell appeals pro se from the trial court's entry of judgment against him on his small-claims complaint against appellee Albert A. Nellis. In his sole assignment of error, MacConnell contends the trial court erred in overruling his objections and adopting a magistrate's report.

{¶2} The record reflects that MacConnell filed a complaint against Nellis in the Kettering Municipal Court, Small Claims Division, alleging that Nellis had reneged on a promise to pay the cost of a real estate appraisal. The matter proceeded to trial before a magistrate. On April 16, 2003, the magistrate filed a short report, finding as follows:

{¶3} "Plaintiff alleges that Defendant orally agreed to pay for an appraisal on a piece of real estate. Plaintiffs mother, Rita MacConnell, testified she heard Defendant agree to pay for the appraisal. Defendant is Mrs. MacConnell's brother-in-law. Defendant vehemently denies agreeing to pay for any appraisal.

{¶4} "The court is not persuaded by Plaintiffs claims.

{¶5} "It is, therefore, the opinion of this Magistrate that Judgment should be granted in favor of Defendant with costs assessed to Plaintiff"

{¶6} MacConnell subsequently filed a written objection, arguing that the magistrate's ruling was against the weight of the evidence. MacConnell did not provide the trial court with a transcript or a recording of the trial. Instead, he supplied the trial court with affidavits from himself and his mother. In the affidavits, MacConnell and his mother purported to repeat testimony that they had given before the magistrate. In particular, they averred that Nellis had promised to pay for the appraisal, that he had reneged, and that he once had stated, "If anything I would only agree to pay for half [of the appraisal]." MacConnell and his mother also averred that Nellis' only evidence at trial was his own sworn testimony that he never agreed to pay for the appraisal. Although the record contains no request for findings of fact from the magistrate, MacConnell also objected to the bare statement in the magistrate's report that the magistrate was "not persuaded." According to MacConnell, this statement was insufficient to enable the trial court to evaluate the evidence.

{¶7} In a May 1, 2003, decision and judgment entry, the trial court overruled MacConnell's objection and entered judgment in favor of Nellis. In support, the trial court reasoned as follows:

{¶8} "This matter is before the Court for review of the Plaintiffs Objection to Magistrate's Report timely filed herein. The Plaintiffs objection amounts to the filing of his affidavit and that of his mother. Both affidavits restate testimony provided by each at the hearing on Plaintiffs Small Claim Complaint.

{¶9} "As noted by the Plaintiff, the Magistrate noted in his Report that, The Court is not persuaded by Plaintiffs claims.' The Magistrate heard the testimony of the parties and the Plaintiffs mother, and assigned a degree of credibility to each. The Magistrate found the testimony of the Plaintiff and his mother did not sustain the assigned burden of persuasion of proof of the Plaintiffs claim by a preponderance of the evidence.

{¶10} "The Court finds the Plaintiffs Objection is not well taken, and overrules the same. The Court has reviewed the Report of Magistrate and finds that it is in conformance with existing law. The Court hereby enters judgment in favor of the Defendant with costs ...


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