[Cite as Burke v. Mayfield Brainard Auto Servs., L.L.C., 2023-Ohio-446.]

 

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

SHELENA BURKE, :

Plaintiff-Appellant, :

No. 111361

v. :

MAYFIELD BRAINARD AUTO 

SERVICES, LLC, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 16, 2023

Civil Appeal from the Lyndhurst Municipal Court

Case No. 18CVF02765

Appearances:

Shelena Burke, pro se. 

Law Offices of Terrence J. Kenneally & Associates Co., 

Terrance J. Kenneally, Sean M. Kenneally, and Kirk E. 

Roman, for appellee State Farm Mutual Insurance. 

Hans C. Kuenzi Co., L.P.A., and Hans C. Kuenzi, for 

appellee Mayfield Brainard Auto Service, L.L.C.
MARY J. BOYLE, J.:

Plaintiff-appellant, Shelena Burke (“Burke”), pro se, was involved in 

a car accident. Defendant-appellee, State Farm Mutual Insurance Company (“State 

Farm”), was Burke’s insurer at the time of the accident. Defendant-appellee, 

Mayfield Brainard Auto Service, LLC (“Mayfield Brainard”), performed the repairs 

to Burke’s vehicle. Burke appeals the Lyndhurst Municipal Court’s judgment 

adopting the magistrate’s decision finding in favor of Mayfield Brainard and State 

Farm. For the reasons set forth below, we affirm.

On December 26, 2018, Burke filed a pro se small claims complaint 

in the Lyndhurst Municipal Court against Mayfield Brainard and State Farm, 

seeking restitution for the total loss of her vehicle and only alleging “faulty 

repairs/poor workmanship causing total shutdown of car’s electrical system.” Burke 

sought $6,000 in damages against each defendant. In response, Mayfield Brainard 

filed an answer alleging that Burke failed to state a claim upon which relief can be 

granted, and State Farm filed a motion to dismiss for failure to state a claim and lack 

of jurisdiction. State Farm also filed a motion to have the case transferred from 

small claims to municipal court, which the Lyndhurst Municipal Court granted in 

March 2019. At the time, Burke did not request a jury trial.

In June 2019, Burke filed a motion to transfer her case to the 

Cuyahoga County Common Pleas Court. In response to Burke’s motion, the 

Lyndhurst Municipal Court allowed Burke to amend her complaint and set forth a 

cause of action and claim for relief in excess of the court’s jurisdiction. 
Subsequently, Burke amended her complaint and the Lyndhurst Municipal Court 

granted her motion to transfer. In her amended complaint, Burke requested that 

the matter be transferred “since the actual amount of restitution exceeds the 

jurisdictional limits of the Lyndhurst Municipal Court.” Burke alleged that her 

vehicle was a total loss, she incurred lost wages, rental car fees, and miscellaneous 

fees, and sought punitive damages. She requested that the defendants “be forced” 

to pay off the remaining balance owed on her vehicle. Burke made a request for a 

jury trial, but conditioned her request only upon the Lyndhurst Municipal Court’s 

refusal and denial to transfer her case. Proceedings were then conducted at the 

common pleas court, but the matter was ultimately returned to the Lyndhurst 

Municipal Court in April 2021 pursuant to Ohio Supreme Court’s decision in State 

ex rel. State Farm Mut. Ins. Co. v. O’Donnell, 163 Ohio St.3d 541, 2021-Ohio-1205, 

171 N.E.3d 321.

Following the return of the matter to the Lyndhurst Municipal Court, 

Mayfield Brainard filed a motion to deem facts admitted, which the court granted. 

Mayfield Brainard requested that the court deem the facts admitted for Burke’s 

failure to respond to the admissions in full. State Farm also filed a motion for 

judgment on the pleadings.

The matter proceeded to trial before a magistrate in December 2021. 

Ten days later, the magistrate issued a decision dismissing Burke’s complaint, with 

prejudice, against State Farm and Mayfield Brainard. The magistrate found that 

Burke’s vehicle collided with a deer while she was driving on the highway. Her 
vehicle was taken to Mayfield Brainard for repairs and her insurer, State Farm, paid 

for the repairs less Burke’s deductible. Approximately two months later, Burke took 

her car to a car dealer for repairs because of electrical issues. State Farm inspected 

the vehicle and determined that there was no connection between the electrical 

issues and the collision and denied Burke’s claim for payment of the repairs to the 

electrical system. Burke’s complaint alleged that the defendants failed to properly 

repair her car. At trial, Burke acknowledged that State Farm is her insurance 

company and it did not perform any repairs to her vehicle. Subsequently, the 

magistrate granted State Farm’s motion for judgment on the pleadings and 

dismissed it from the case.

The magistrate further found that as part of Mayfield Brainard’s facts 

deemed admitted, Burke admitted that she is not an expert in automotive 

electronics. Burke did not present any expert testimony to connect the electrical 

system problems with the collision and Mayfield Brainard’s repairs. Burke also 

failed to produce any evidence of the amount of damages to her car. At the 

conclusion of Burke’s case, Mayfield Brainard moved to dismiss the complaint with 

prejudice, which the magistrate granted.

Burke filed objections to the magistrate’s decision but did not file the 

trial transcript with her objections. In February 2022, the Lyndhurst Municipal

Court overruled Burke’s objections, and affirmed and adopted the magistrate’s 

decision. 
It is from this order that Burke appeals, raising the following three 

assignments of error for review:

Assignment of Error One: The trial court erred and abused its 

discretion in removing * * * State Farm from the case and dismissing 

plaintiff’s motion to compel credible evidence from defendants 

pertinent to the case.

Assignment of Error Two: The magistrate not having the whole 

truth in the matter, came to an erroneous conclusion and finding of 

facts by failing to allow “all” the facts, evidence, and testimony 

pertinent to the case to come forth by dismissing State Farm, a named 

defendant from the case.

Assignment of Error Three: Plaintiff acting as pro se attorney, was 

not notified, nor consented to a bench trial waiving her right to trial by 

jury.

In the first and second assigned errors, Burke argues that the court 

erred by dismissing State Farm from the case and dismissing her motion to compel

discovery. 

“A Civ.R. 12(C) motion for judgment on the pleadings presents 

questions of law, the determination of which is restricted solely to the allegations in 

the pleadings and any writings attached to the pleadings.” Crenshaw v. Jones, 8th 

Dist. Cuyahoga No. 110838, 2022-Ohio-3913, ¶ 6, citing Peterson v. Teodosio, 34 

Ohio St.2d 161, 297 N.E.2d 113 (1973). A motion for judgment on the pleadings is 

limited to the pleadings and can be granted when the court, after construing the 

pleadings most favorably to the nonmoving party, finds beyond doubt that the 

nonmoving party could prove no set of facts in support of a claim for relief. State ex 

rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 

(1996), citing Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99, 616 N.E.2d 519 
(8th Dist.1992). Appellate review of motions for judgment on the pleadings is de 

novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 

N.E.2d 44, ¶ 5, Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio2480, 768 N.E.2d 1136.

We note that Ohio is a “notice-pleading” state. Civ.R. 8(A) requires a 

“short and plain statement of the claim showing that the pleader is entitled to relief, 

and * * * a demand for judgment for the relief to which the party claims to be 

entitled.” Under the notice pleading requirements of Civ.R. 8(A)(1), Burke was 

required to plead sufficient, operative facts to provide fair notice to the defender of 

the claim. Dottore v. Vorys, Sater, Seymour & Pease, L.L.P., 8th Dist. Cuyahoga 

No. 98861, 2014-Ohio-25, ¶ 113, citing Fancher v. Fancher, 8 Ohio App.3d 79, 455 

N.E.2d 1344 (1st Dist.1982); DeVore v. Mut. of Omaha Ins. Co., 32 Ohio App.2d 36, 

288 N.E.2d 202 (7th Dist.1972).

Burke sought restitution for the total loss of her vehicle and alleged

that she incurred lost wages, rental car fees, and miscellaneous fees. This language 

does not state a claim against State Farm. No contractual claim was alleged and 

there was no allegation that State Farm performed any work on Burke’s vehicle. 

Therefore, Burke could not prove any set of facts in support of her restitution claim 

against State Farm. Accordingly, the motion for judgment on the pleadings was 

properly granted.

With regard to Burke’s motion to compel argument, we note that 

when serving discovery requests, the civil rules of procedure require that the party 
serving the requests serve them in “shareable medium and in an editable format by 

electronic mail, or by other means agreed to by the parties.” Civ.R. 33(A), 34(B), 

and 36(A). If a party is unable to fulfill the requirement they must seek leave of court 

to be relieved of the requirement. Id. When a party seeks a motion to compel, the 

party must certify prior to filing the motion that they have conferred or attempted 

to confer with the opposing party to resolve the discovery dispute. Civ.R. 37(A)(1), 

(3).

Here, a review of the record reveals that any discovery requests Burke 

allegedly made were not served in an electronic format. Furthermore, the record 

does not indicate that Burke attempted to resolve the alleged dispute prior to filing 

her motion to compel. We therefore find Burke’s argument unpersuasive.

Accordingly, the first and second assignment of error are overruled.

In the third assigned error, Burke argues that she did not waive her 

right to a jury trial and she did not consent to a bench trial. She further argues that 

the magistrate’s decision contains “misinformation, assumptions, and false 

statements” not admitted by her. 

Loc.R. 31(A) of the Lyndhurst Municipal Court provides that “[a]ll 

trials shall be set before the Court unless a party to the action files a timely jury 

demand.” In the instant case, the record demonstrates that Burke did not request a 

jury trial with her initial complaint. With her amended complaint, Burke requested 

a jury trial, but conditioned her request only upon the Lyndhurst Municipal Court’s 

refusal and denial to transfer her case to Cuyahoga County Common Pleas Court. 
The Lyndhurst Municipal Court granted Burke’s motion and the matter was 

transferred to common pleas court in July 2019. As a result, Burke waived her right 

to a jury trial because the Lyndhurst Municipal Court granted the transfer and the 

record reflects that Burke did not make another request after that point in the 

proceedings. 

Burke also takes issue with the magistrate’s findings of fact from the 

Lyndhurst Municipal Court. We note that Civ.R. 53(D)(3)(b) requires that 

objections to a factual finding shall be supported by a transcript of all the evidence 

submitted to the magistrate relevant to that finding. When a party has failed to file 

a transcript of the proceedings before the magistrate, the trial court must adopt the 

factual findings of the magistrate and limit its review of objections to the conclusions 

of law by the magistrate. In re G.J.A., 8th Dist. Cuyahoga Nos. 107220 and 107575, 

2019-Ohio-1768, ¶ 20; Vannucci v. Schneider, 8th Dist. Cuyahoga No. 104598, 

2017-Ohio-192, ¶ 17, citing In re C.L., 8th Dist. Cuyahoga No. 93720, 2010-Ohio682, ¶ 8, and Allread v. Allread, 2d Dist. Darke No. 2010 CA 6, 2011-Ohio-1271, ¶

18. 

Without a transcript or alternative record, this court must presume 

regularity and presume that the trial court considered all the evidence and 

arguments raised. In re G.J.A. at ¶ 12, citing Miranda v. Saratoga Diagnostics,

2012-Ohio-2633, 972 N.E.2d 145, ¶ 26 (8th Dist.). “‘[W]e accept the factual findings 

of the trial court as true and limit our review to the legal conclusions of the trial 

court.’” Id., quoting Bailey v. Bailey, 8th Dist. Cuyahoga No. 98173, 2012-Ohio-
5073, ¶ 8, citing Snider v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 

11AP-965, 2012-Ohio-1665, ¶ 8. Moreover, “[a] reviewing court cannot add matter 

to the record before it, which was not a part of the trial court’s proceedings, and then 

decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 

402, 377 N.E.2d 500 (1978), paragraph one of the syllabus.

Here, Burke failed to file a transcript or affidavit of proceedings with 

her objections to the magistrate’s decision. As a result, we presume that the 

municipal court considered all the evidence and arguments raised, and the court 

properly adopted the factual findings of the magistrate and limited its review of 

Burke’s objections to the conclusions of law made by the magistrate.

Therefore, the third assignment of error is overruled.

Judgment is affirmed.

It is ordered that appellees recover from appellant 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.

_____________________

MARY J. BOYLE, JUDGE

LISA B. FORBES, P.J., and

MICHAEL JOHN RYAN, J., CONCUR