[Cite as Williams v. Matthews, 2013-Ohio-483.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98136 

DONALD C. WILLIAMS 

PLAINTIFF-APPELLEE 

vs. 

IVAN MATTHEWS

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED; REMANDED FOR 

CORRECTIONS 

Civil Appeal from the 

Cleveland Municipal Court 

Case No. 2008 CVI 024776 

 BEFORE: Blackmon, J., S. Gallagher, P.J., and McCormack, J. 

 RELEASED AND JOURNALIZED: February 14, 2013
FOR APPELLANT 

Ivan Matthews, Pro Se 

3305 East 143rd Street 

Cleveland, OH 44120 

FOR APPELLEE 

Donald C. Williams 

1370 Ontario Street 

Suite 330 

Cleveland, OH 44113
PATRICIA ANN BLACKMON, J.: 

{¶1} Appellant Ivan Matthews (“Matthews”) appeals pro se the trial court’s 

award in favor of appellee Donald C. Williams (“Williams”) in the amount of $2,207.50 

and assigns 12 errors for our review.1

{¶2} Having reviewed the record and relevant law, we affirm the trial court’s 

judgment but remand the matter for the trial court to make corrections. The apposite 

facts follow. 

Facts

{¶3} No transcript of the proceedings was provided. Instead, the appellant 

submitted an App.R. 9(C) statement. According to the statement, Matthews was charged 

with the crime of menacing by stalking. He retained attorney Williams to represent him. 

According to the written attorney-client agreement, Williams agreed to represent 

Matthews in exchange for a $1,750 retainer fee at an hourly rate of $185. Williams 

provided extensive legal services to Matthews from December 12, 2007 to March 4, 

2008. Williams was paid a total of $1,400 as compensation for his services. 

{¶4} Williams withdrew from representing Matthews because Matthews and his 

family became unhappy with his representation and threatened Williams while at his 

office. The trial court granted his motion to withdraw. 

 1

See appendix. 
{¶5} Because a balance of $2,207.50 remained due and owing to Williams for 

legal services he provided Matthews, Williams filed a complaint in small claims court 

against Matthews on October 29, 2008. After several continuances were granted and 

various motions ruled upon, a hearing was held before a magistrate on April 26, 2012. 

{¶6} The magistrate concluded that attorney Williams was a more credible 

witness than Matthews and ordered Matthews to pay the balance of his legal fees in the 

amount of $2,207.50, plus interest. The trial court adopted the magistrate’s decision. 

Motion to Transfer

{¶7} In his first assigned error, Matthews argues the trial court abused its 

discretion when it cancelled the trial scheduled for March 4, 2009. He contends the trial 

court should have dismissed Williams’s complaint because Williams failed to appear at 

the hearing. 

{¶8} After several continuances were requested by Matthews and granted, the 

trial court set trial for March 4, 2009. On the afternoon prior to the trial, Matthews filed 

a motion to transfer the case to the common pleas court because he filed a counterclaim in 

the amount of $20,310. As a result, the magistrate cancelled the trial scheduled for the 

next day. 

{¶9} A review of the magistrate’s decision regarding its decision to cancel the 

hearing shows that the magistrate did so because Matthews filed a motion to transfer his 

case to court of common pleas at approximately 3:00 p.m. the day before trial. The 

magistrate explained that: 
Because of the lateness of the filing, the Clerk of Court’s Office 

immediately sent the defendant’s motion to transfer to the Small 

Claims Magistrate, the undersigned. In order for the matter to be 

handled properly, the decision was made to cancel the March 4, 2009 

trial pending ruling on the defendant’s motion. An attempt was made 

to contact both parties to advise them not to appear. A message was 

left for [Matthews]. However, because [Matthews] repeatedly failed to 

give the court a telephone number by which he could be contacted, the 

Magistrate was unable to advise him not to appear. Magistrate’s 

Decision, April 2, 2010. 

{¶10} Thus, it appears the only reason attorney Williams did not appear at the 

hearing was because the court telephoned him and told him not to appear. The court 

tried to extend the same courtesy to Matthews, but because he failed to provide the court 

with a telephone number, the court was unable to contact him. 

{¶11} Under these circumstances, where Matthews filed the motion on the eve of 

trial, and the court had not received or reviewed the counterclaim, the court did not abuse 

its discretion by affirming the magistrate’s decision to cancel the hearing. Moreover, to 

further complicate the matter, it appears that the counterclaim was filed in the court of 

common pleas, not the municipal court, and attorney Williams was not served with a copy 

of the counterclaim. To proceed with the hearing under these circumstances would have 

been unfair to Williams. Accordingly, Matthews’ first assigned error is overruled. 

Motion to Vacate

{¶12} In his second assigned error, Matthews contends that the trial court erred 

by vacating its dismissal of Williams’s complaint without prejudice. 

{¶13} A trial court’s decision to grant or deny a motion for relief from judgment 

pursuant to Civ.R. 60(B) lies within its sound discretion; thus, the decision will not be 
disturbed absent an abuse of discretion. Strack v. Pelton, 70 Ohio St.3d 172, 174, 

1994-Ohio-107, 637 N.E.2d 914. An abuse of discretion is more than an error of 

judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in 

its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

An abuse of discretion demonstrates “perversity of will, passion, prejudice, partiality, or 

moral delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 

1993-Ohio-122, 614 N.E.2d 748. When applying this standard, the appellate court may 

not substitute its judgment for that of the trial court. Id. 

{¶14} In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the 

moving party must demonstrate that (1) the party has a meritorious defense or claim to 

present if relief is granted; (2) the party is entitled to relief under one of the grounds 

stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time 

and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year 

after the judgment, order, or proceeding was entered or taken. GTE Automatic Elec., Inc. 

v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the 

syllabus. Because the requirements of Civ.R. 60(B) are stated in the conjunctive, if one 

of the requirements is not met, relief from judgment cannot be granted. Strack at 174. 

{¶15} Williams satisfied all three prongs of the test. Williams had a meritorious 

claim that he was owed money for his legal services from Matthews. He filed his motion 

mere days after the dismissal judgment was entered. He stated that although he had used 

his new address in filing the complaint, the municipal court computer used his old address 
as the address to which to send notices and orders. This would fall under the grounds of 

mistake or inadvertence pursuant to Civ.R. 60(B)(1). We find no basis to conclude the 

trial court abused its discretion in vacating its dismissal. Accordingly, Matthews’ second 

assigned error is overruled. 

Court’s Review of Objections

{¶16} In his third, fifth, tenth, and eleventh assigned errors, Matthews argues the 

trial court failed to conduct an independent review of his objections to the various 

magistrate decisions and that the magistrate failed to issue requested findings of fact and 

conclusions of law. 

{¶17} In reviewing a trial court’s ruling on objections to a magistrate’s decision 

“[a]n appellate court presumes that a trial court performed an independent analysis of a 

magistrate’s decision.” Jones v. Smith, 187 Ohio App.3d 145, 2010-Ohio-131, 931 

N.E.2d 592, ¶ 10 (4th Dist.); see also Alessio v. Alessio, 10th Dist. No. 05AP-988, 

2006-Ohio-2447, ¶ 36. Therefore, a party asserting error must affirmatively demonstrate 

that the trial court failed to conduct the independent analysis. Id. Further, simply because 

a trial court adopted a magistrate’s decision does not mean that the court failed to exercise 

independent judgment. Id. Matthews has failed to “affirmatively demonstrate” that the 

court failed to conduct an independent review of the magistrate’s decisions. 

{¶18} Matthews contends that the trial court did not independently review the 

magistrate’s decisions to cancel the March 4, 2009 hearing and to deny Matthews’ motion 

to transfer. He contends that if the court had reviewed the decision it would 
realize that magistrate, who did not preside at the March 4, 2009 hearing, 

issued the decision to cancel the hearing and deny the motion. However, there was no 

March 4, 2009 hearing, because it was cancelled. The decision regarding the motion to 

transfer involved merely procedural matters that could have been determined by any of 

the available magistrates. 

{¶19} Matthews also contends he did not receive any response to his February 4, 

2011 request for findings of fact and conclusions of law. However, the record does not 

show that such a request was filed. The record indicates that every time that Matthews 

requested findings of fact and conclusions of law, the magistrate responded. In fact, the 

magistrate provided findings when it was not obligated to do so. For instance, the court 

was not obligated to provide findings of facts and conclusions of law when it was ruling 

on purely procedural matters where no evidence was submitted. See Savage v. Zeigler, 

4th Dist. No. 06CA5, 2006-Ohio-2760 (“Although Rule 52 mandates the issuance of 

findings of fact and conclusions when questions of fact are tried by the court without a 

jury, the Rule specifically holds that such findings are ‘unnecessary upon all other 

motions.’”) 

{¶20} Matthews also contends the trial court failed to conduct an independent 

review because it failed to determine that a mathematical error occurred regarding the 

amount of money Matthews paid to Williams. Based on the evidence presented in the 

App.R. 9(C) statement and the itemized bill, Matthews only paid a total of $1,400 
towards his fees. Therefore, there was no basis for the trial court to determine an error 

occurred. 

{¶21} Matthews also contends the trial court erred by adopting the magistrate’s 

decision to vacate the dismissal of Williams’s complaint because he discovered evidence 

indicating that the court used Williams’s correct mailing address when it mailed notices 

and orders to Williams. However, Matthews failed to present any such evidence in his 

motion in opposition to Williams’s motion to vacate. 

{¶22} Matthews also contends the trial court could not have independently 

reviewed the magistrate’s decision issued on May 24, 2011, because the court’s entry 

adopting the decision is dated May 23, 2011. We do agree with Matthews that the date is 

incorrect on the court’s adoption of the magistrate’s May 24, 2011 decision. The court’s 

adoption of the decision is dated May 23, 2011, a day prior to the magistrate’s decision. 

Because the court awarded the same amount of damages as the magistrate did in its 

decision, the court obviously did not issue its decision until after it reviewed the 

magistrate’s decision. Therefore, the wrong date is a clerical error, which can be fixed 

by a nunc pro tunc entry by the trial court. See State v. Lester, 130 Ohio St.3d 303, 

2011-Ohio-5204, 958 N.E.2d 142, ¶ 18-19 (courts possess the authority to correct an error 

in a judgment entry so that the record speaks the truth); State v. Miller, 127 Ohio St.3d 

407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15 (an error corrected by a nunc pro tunc entry 

does not involve a legal decision or judgment). Accordingly, Matthews’ third, fifth, 
tenth, and eleventh assigned errors are sustained in part as to the May 23, 2011 journal 

entry. 

Manifest Weight of the Evidence

{¶23} In his fourth assigned error, Matthews argues the trial court’s award of fees 

to Williams was against the manifest weight of the evidence because attorney Williams 

was not sworn in prior to testifying and was, therefore, not a credible witness. He also 

contends the attorney-client agreement did not include the number of hours Williams 

worked on the case, and the itemized bill did not list the hourly rate being charged. 

{¶24} In determining whether a verdict is against the manifest weight of the 

evidence, “[j]udgments supported by some competent, credible evidence going to all the 

essential elements of the case will not be reversed by a reviewing court as being against 

the manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54 Ohio 

St.2d 279, 280, 376 N.E.2d 578 (1978). The civil manifest weight of the evidence 

standard “affords more deference to the fact-finder” than is afforded in criminal cases. 

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio- 2202, 865 N.E.2d 1264, ¶ 26. The civil 

standard “tends to merge the concepts of weight and sufficiency.” Id. In determining 

whether a civil judgment is against the manifest weight of the evidence, an appellate court 

does not reweigh the evidence. Id. 

{¶25} Matthews refers to an excerpt of a transcript to show that attorney 

Williams was not sworn in; however, no transcript of the proceedings exists. The record 

consists of an App.R. 9(C) statement, which does not address the swearing in of attorney 
Williams. Without a certified transcript, we cannot give credence to Matthews’ 

recollection of what occurred. App.R. 9(B). 

{¶26} Matthews also contends the agreement did not detail the amount of hours 

Williams spent on the case. However, because the attorney-client agreement is entered 

into prior to the attorney working on the case, it would be impossible for the amount of 

hours to be set forth in the contract. The agreement does state that Matthews would be 

charged at the hourly rate of $185. Therefore, Matthews was aware of how much he 

would be paying hourly, and the itemized bill provided the number of hours for which the 

attorney was seeking compensation. Thus, by reading both documents in conjunction, the 

court could easily determine the amount of fees due to Williams. Accordingly, adequate 

evidence exists to support the trial court’s award. Matthews’ fourth assigned error is 

overruled. 

Failure to Record Hearing

{¶27} In his sixth assigned error, Matthews contends the trial court erred by 

failing to provide a court reporter or recording device to record the hearing. 

{¶28} Civ.R. 53(D)(7) requires that the proceedings before a magistrate be 

recorded in accordance with the procedures established by the court. Pursuant to Rule 

8.02 of the Cleveland Municipal Court’s Local Rules of Practice and Procedure, “any 

party desiring a record of proceedings in a civil case before a magistrate may arrange for 

the attendance of a private court reporter at said party’s cost pursuant to Local Rule 

12.01.” Therefore, pursuant to the procedures established in the Cleveland Municipal 
Court, it was Matthews’ responsibility to retain a private court reporter if he desired one, 

not the court. 

{¶29} There is also no evidence in the record to suggest that Matthews requested 

that the proceedings be recorded. A party may not assign as error on appeal issues that 

were not objected to in the trial court. Toma v. Toma, 8th Dist. No. 82118, 

2003-Ohio-4344, at ¶ 33, quoting Nenadal v. Landerwood, 8th Dist. No. 65428, 1994 

Ohio App. LEXIS 2079 (May 12, 1994). See also Calhoun v. Calhoun, 8th Dist. No. 

93369, 2010-Ohio-2347, where we held that because there was no evidence the appellant 

requested that the proceedings be recorded, the issue was waived for purposes of appeal. 

Accordingly, Matthews’ sixth assigned error is overruled. 

Oral Contract

{¶30} In his seventh and eighth assigned errors, Matthews contends the trial court 

erred by failing to conclude that an oral pro bono contract existed between him and 

Williams. 

{¶31} We do not have a transcript of the proceedings, only the App.R. 9(C) 

statement. “Unless the record transmitted on appeal includes an App.R. 9(C) statement 

that affirmatively demonstrates error, we must presume the trial court committed no error 

despite the fact the record is not complete.” (Emphasis added.) Rose Chevrolet, Inc. v. 

Adams, 36 Ohio St.3d 17, 19, 520 N.E.2d 564 (1998). Here, the record does not 

affirmatively demonstrate that the magistrate erred by concluding a pro bono contract did 

not exist. Accordingly, Matthews’ seventh and eighth assigned errors are overruled. 
Trial Court’s Failure to “Adopt” Magistrate’s Decision

{¶32} In his ninth assigned error, Matthews argues that the trial court’s use of the 

words, “approved” and “confirmed” do not result in the court adopting the magistrate’s 

report because it did not use the word “adopt.” 

{¶33} Although Matthews cites to case law in support of his argument, none of 

the cases he cites to stand for the proposition that the trial court must use the exact word, 

“adopt,” in order to constitute a valid adoption of the magistrate’s decision. The use of 

the alternative words, approved and confirmed, result in the same meaning. Therefore, 

the trial court did not err by choosing to use the words approved and confirmed. 

Accordingly, Matthews’ ninth assigned error is overruled. 

Lack of a Final Appealable Order

{¶34} In his 12th assigned error, Matthews argues that the trial court failed to 

adopt the magistrate’s amended decision that included findings of fact and conclusions of 

law and, thus, did not issue a final, appealable order. 

{¶35} In order to understand Matthews’ argument, it is necessary to consider the 

timing of the events surrounding the trial court’s last entry. The magistrate had issued its 

decision awarding judgment in Williams’s favor on May 24, 2011. Thereafter, the trial 

court adopted the magistrate’s decision. On May 27, 2011, Matthews filed his objections 

to the magistrate’s report, in which he included a request for findings of fact and 

conclusions of law from the magistrate. 
{¶36} Responding to his request for findings of fact and conclusions of law, the 

magistrate issued an amended decision on September 30, 2011, which had the same result 

as its previous decision, but included sections for findings of fact and conclusions of law. 

 On the same date, the trial court approved and confirmed the magistrate’s decision. 

Thereafter, on October 6, 2011, Matthews filed his objections to the magistrate’s 

amended decision. On February 24, 2012, the trial court overruled Matthews’ 

objections and stated, “Judgment Entry Journalized May 24, 2011 is to remain in full 

force and effect.” Thus, it appears the court failed to notice that it had also adopted the 

magistrate’s amended decision on September 30, 2011. 

{¶37} The trial court’s adoption entries on May 24, 2011 and 

September 30, 2011 are identical in all respects. Therefore, the trial court’s journal entry 

referring to the May 24, 2011 entry should have referred to its September 30, 2011 entry. 

We conclude the trial court’s error was a clerical error and can be remedied by a nunc pro 

tunc entry. Accordingly Matthews’ 12th assigned error has merit and is sustained. 

{¶38} Judgment affirmed; case remanded for the trial court to make corrections. 

It is ordered that appellee recover from appellant his costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

SEAN C. GALLAGHER, P.J., and 

TIM McCORMACK, J., CONCUR