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ABL, Inc. v. C.T.W. Development Corp.

Court of Appeals of Ohio, Seventh District, Mahoning

December 15, 2017

ABL, INC. PLAINTIFF-APPELLANT
v.
C.T.W. DEVELOPMENT CORP. DEFENDANT-APPELLEE

         Civil Appeal from the County Court No. 4, of Mahoning County, Ohio Case No. 2014 CVF 01065

          For Plaintiff-Appellant: Atty. Dale E. Bricker

          For Defendant-Appellee: Atty. Christopher J. Gagin, Esq.

          Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb

          OPINION

          WAITE, J.

         {¶1} Appellant American Beauty Landscaping, Inc. ("ABL") appeals an August 11, 2016 Mahoning County Court No. 4 judgment entry. ABL argues the trial court erroneously determined that Appellee CTW Development Corporation's ("CTW") debt was satisfied through an accord and satisfaction because the third-party collection agency lacked authority to enter into a settlement with CTW. Alternatively, ABL argues that the trial court erroneously calculated CTWs debt. For the reasons provided, ABL's arguments are without merit and the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} ABL is a lawn service provider and CTW is a corporation that owns several properties in Mahoning County. In 2011, ABL and CTW entered into a contract in which ABL agreed to provide lawn services for twelve of CTWs properties. CTW paid for services performed by ABL from April 8, 2011 until May 1, 2012. CTW did not pay for services completed during the month of May. In June of 2012, CTW terminated the contract due to ABL's poor performance. ABL labeled CTWs account delinquent in the amount of $14, 209.37. CTW disputed this amount.

         {¶3} In February of 2013, ABL retained HF Holdings, Inc., ("HF"), a Florida based collection agency, to collect CTWs debt. HF sent CTW multiple letters in an attempt at collection. On July 31, 2013, CTW offered HF $3, 500 to settle the account. HF rejected the offer and countered with an offer to settle the account for $5, 000, if paid by 3:00 p.m. on that day. CTW agreed, and electronically transferred $5, 000 to HF on July 31, 2013. HF failed to notify or seek approval from ABL before making the settlement offer and entering into the agreement, and failed to send the $5, 000 it received from CTW to ABL

         {¶4} On December 2, 2013, ABL filed a complaint against CTW seeking judgment in the amount of $14, 209.37. On December 19, 2013, CTW filed an answer and counterclaim asserting that the debt had been satisfied by accord and satisfaction on July 31, 2013. On January 13, 2014, ABL filed a response to the counterclaim, arguing that HF lacked authority to negotiate and accept a settlement and had not sent to ABL any money on CTWs account. Importantly, neither party sought to add HF as a party to this lawsuit.

         {¶5} On July 21, 2014, CTW filed a motion for summary judgment. ABL did not respond to the motion nor did it file its own motion for summary judgment. On September 8, 2014, the magistrate granted CTWs motion for summary judgment based on ABL's failure to respond. The trial court affirmed the magistrate's decision. On appeal, we reversed the trial court's decision in ABL, Inc. v. CTW Dev. Corp., 7th Dist. No. 15 MA 20, 2016-Ohio-759.

         {¶6} On remand, the case proceeded to a bench trial, where each party presented witness testimony and exhibits. On May 16, 2016, the magistrate determined that the total delinquent amount due to ABL by CTW was $6, 955.38, not $14, 209.37. The magistrate then found that because ABL did not consent to the settlement, HF lacked actual authority to enter into an accord and satisfaction with CTW. However, it does not appear as though the magistrate made a finding as to whether HF had apparent authority. Regardless, the magistrate ruled that CTW should be given credit for the $5, 000 it paid to HF. Accordingly, it entered judgment in favor of ABL in the amount of $1, 955.38. While both parties filed objections to the magistrate's decision, neither party provided transcripts of the magistrate's hearing to the trial court. The court held its own hearing, at which counsel for CTW appeared but counsel for ABL waived appearance. The parties also failed to provide transcripts of this hearing for the record on appeal. The trial court overruled the magistrate's decision and determined that a valid accord and satisfaction existed between CTW and ABL and that no additional payments were due. This timely appeal followed.

         Appellate Record and Standard of Review

         {¶7} An appellant bears the duty of providing a transcript for appellate review. Taylor v. Collier, 2015-Ohio-4099, 43 N.E.3d 810, ¶ 11 (7th Dist.), citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980); State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d 1355 (1978). As Appellant failed to provide any trial transcripts in this matter, we must presume the regularity of the trial court's proceedings. Grenga v. Ohio Edison Co., 7th Dist. No. 03 MA 41, 2004-Ohio-822, ¶ 14, citing Milick v. Ciapala, 7th Dist. No. 02-CA-53, 2003-Ohio-1427.

         {¶8} Also, when the objecting party fails to make the transcripts part of the record, an appellate court is limited to reviewing "whether the trial court's application of the law to its factual findings" amounted to an abuse of discretion. Spotsylvania Mall Co. v. Nobahar, 7th Dist. No. 11 MA 82, 2013-Ohio-1280, ¶ 16, citing State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995).

         ASSIGNMENT ...


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