[Cite as Shamblin v. Leal , 2012-Ohio-2667.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY MARIA SHAMBLIN : : Appellate Case No. 24742 Plaintiff-Appellee : : Trial Court Ca se No. 08-CV-8538 v. : : FERDINAND LEAL : (Civil Appeal from Common Pleas : ( Court, Domestic Relations) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 15 th day of June, 2012.

. . . . . . . . . . . PATRICK J. CONBOY, II, Atty. Reg. #0070073, 5613 Brandt Pike Huber Heights, Ohio 45424 Attorney for Plaintiff-Appellee KEITH A. FRICKER, Atty. Reg. #0037355, 7460 Br andt Pike, Huber Heights, Ohio 45424 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FAIN, J. {¶ 1} Defendant-appellant Ferdinand Leal appeals from a judgment rendered against him in the amount of $22,220.93. He cont ends that the judgment is against the manifest weight of the evidence. {¶ 2} This cause of action was made up on plaintiff-appellee Maria 2

 Shamblin’s complaint, Leal’s counterclaim, and their respective answers. It was tried to the bench, without a jury. The trial court rendered findings of fact a nd conclusions of law, but we have not been provided with a tr anscript of the trial. The record on appeal does not support Leal’s contention that the judgment against him is against the manifest weight of the evidence. Accordingly, the judgment of the trial court is Affirmed.

I. The Facts Found by the Trial Court {¶ 3} The trial court made the following findings of fact: The testimony reveals that the Plaintiff, Maria Shamblin (Plaintiff) and the Defendant, Ferdinand Leal (Defendant) met in 2000 when both were in other relationships. They dated off and on begi nning in 2004, with the relationship ending in 2008. During the course of the rela tionship, [Shamblin] and [Leal] decided to move in together. In 2005, [Leal] was hired by the City of Dayton as a police officer. The Court takes judicial notice of City ’s residency rule and its re quirement that employees live within the City’s boundaries. [Leal] previous ly lived in Miami County Ohio, however toward the end of 2005 [Leal] bought a house lo cated in the City of Dayton so as to comply with Dayton’s resi dency rule. The purchase price of the house was $159,000.00. [Shamblin] gave [Leal] $33,000.00 in cash to be used toward the down payment and closing costs. [Shamblin] was of the belief that when the two got married, her name woul d be put on the deed. The money that [Shamblin] gave to [Leal] came from a cache of money that 3

 [Shamblin] and her mother kept in a safe or “firebox.” M oney from this stash was used during the course of the rela tionship to improve or main tain the property. Those improvements included putting on a deck, building a storage shed, and repairing the air conditioner. In addition to the house dow n payment of $33,000.00 [Shamblin] loaned [Leal] the following sums of money: 1) $4,800.00 for a new deck. Of this amount [Leal] used $4,000.00 to construct the deck and kept th e remaining $800.00; 2) $1603.93 for a storage shed; and 3) $817.00 for air conditioning repair.
The evidence also i ndicates that [Leal] took $10,000.00 in cash from the safe placing the money in his personal bank account at a local credit union. The record also reflects that [Shamblin] gave [Leal] money from her checkin g account to replace a co mputer that got a virus alledgedly as a result of [Shamblin’s] use. [Shamblin] was to get possession of the damaged computer, but she never received th e computer. [Leal] spent $1,300.00 repairing the computer and kept the com puter and the remaining $700. [Shamblin] also claims to be owed $150.00 for a retainer rock, $180.00 for window blinds, $109.00 for alleged porn website char ges made on [Shamblin’s] credit card and $346.08 for a camera purchased as a gift for [Leal] by [Shamblin]. [Shamblin] provided receipts for $4,766.93 of the $55,006.01 that she claims to be owed. These receipts included: the air conditioner ($817.00), the camera ($346.08) , the shed ($1,603.93), and a copy of a check written on her personal bank account, payable to [Leal], with “computer” written in the notation line ($2,000.00). [Shamblin] stated that she does not have receipts for the other purchases and/or loans because she trusted [Leal]. [Shamblin] seeks a total of $55,006.01 in damages. 4

 The evidence further revealed via the partie s’ joint exhibit that [Shamblin] had been reimbursed for $30,000.00 of the down payment. The joint exhibit provided as follows: “This letter is to serve as an agreement between Ferdinand Leal and Maria A. Shamblin. Ferdinand Leal agree (sic) to pay Maria A. Shamblin $35,000.00 in exchange for her vacating my residence at 6346 Harvest Mea dow Dr. not (sic) later than April 21, 2008 at 6pm, removal of her personal pr operty including flat screen television, some curtains, refrigerator and stove from the residence, agreement to file no civil litigation in the future. Upon Compliance of this agreement, paym ent of $30,000.00 will be ma de by certified or cashier’s check no later than May 21, 2008. The $5,000.00 will be paid in in stallment [sic] of $100.00 per month.” The joint exhibit, whose contents both par ties acknowledged, stated that [Leal] owed [Shamblin] $35,000.00. Both acknowledged that of that amount, [Leal] had repaid $30,000.00 via a certified check and that of th e remaining $5000.00, [Leal] would repay in $100.00 increments. Both [Shamblin] and [Leal] ac knowledge that [Leal] is in default of the remaining $5000.00. Upon moving in together, [Leal] paid the household bills. [Shamblin] did not contribute to the mortgage, the insurance, the utilities, food, or ma intenance and upkeep. Based on [Leal’s] testimony, the monthly hous ehold expenses were approximately $1600.00 per month. These expenditures included the mo rtgage plus the other household expenses such as phone, cable, water, sewer, electric, food, etc. [Leal] argues that he paid for the deck, the retainer rock and the curtains/blinds but he could provide no receipt for those expenditures. Further, [Leal] denied the accusation that he 5

 had made porn website charge s to [Shamblin’s] credit card. After [Shamblin] left the house, [Leal] stated that he discovered that his power tools were missing from a tool box. He stated that he “loved” those particular tools and placed a value of $5000.00 on them. He stated that he believed [Shamblin] ha d taken those tools because there was no evidence that a robbery or burglary took place. [Shamblin] denied taking the power tools. Rather, [Shamblin] stated th at [Leal’s] ex-wife had taken the tools during their divorce and had given them to her family members. [Leal] also claimed that [Shamblin] t ook 15 rose bushes and lilies that he had purchased and planted on the property as landscap ing. [Shamblin] confirmed that she had dug up and given away the plants, however she claimed that she had paid for the plants. There were no receipts presented for any of the plants by either party nor was any evidence presented as to the amount of damages due to the removal of the plants. During dissolution of the parties[’] relationship, [Shamblin] threatened to report him to his employer in an attempt to cause him to lose his job. [Shamblin] also made statements, orally and in writing, to th eir neighbors about [Leal], as well as to [Leal’s] family in California. {¶ 4} In her complaint, Shamblin made out a cause of action against Leal for unjust enrichment. In its conclusions of law concerning this claim, the trial court made additional findings of fact: Considering the credibility of the witnesses, the exhibits, testimony and all the facts and circumstances in evidence, it is reasonable to conclude that [Leal] was unjustly enriched in the amount of $52,220.93. This amount reflects the following: 6

 $33,000.00 Downpayment on the house $4,800.00 Deck $1,603.93 Storage Shed $817.00 Air Conditioner $10,000.00 Cash taken from safe a nd placed in [Leal’s] account $2,000.00 Computer $52,220.93 [Leal] has paid [Shamblin] $30,000.00. Th erefore, [Shamblin] is owed $22,220.93. As to the retaining rock ( $150.00 approximate), window treatments ($180.00 approximate), and por n website charges ($109.00 approximate) the court finds that [Shamblin] failed to sufficiently prove her claims. As to the camera, the Court finds that the camera was a gift purchased by [Shamblin] for [Leal]. Further, the Court finds that there was insufficient evidence to definitively show that there was any type of agreement between the parties as to the sharing of household expenses. Therefore the Court declines to take any deductions from the amount owed to [Shamblin]. {¶ 5} One of the claims Leal made out agai nst Shamblin in his counterclaim was for breach of contract. Concerning this claim, the trial court made add itional findings of fact in its conclusions of law: Considering the credibility of the witnesses, the exhibits, testimony and all the facts and circumstances in evidence, it is reasonable for the Court to conclude that [Leal’s] Breach of Contract claim must fail. The April 24, 2008, Agreement between 7

 the parties states as follows: [here the tria l court quoted again from the letter agreement quoted in paragraph 3 of this opinion]. This agreement was signed by the parties and notarized on April 24, 2008. Both parties were still living at the residence when the agreement was signed. The Agreement states that [Shamblin] was to be out of the residence by April 21, 2008. The Agreement is void on its face. [Leal’s] claim for breach of contract must fail. {¶ 6} Another claim Leal made out in his counterclaim wa s for defamation. Concerning this claim, the trial court made a dditional findings of fact in its conclusions of law: Considering the credibility of the witnesses, the exhibits, testimony and all the facts and circumstances in evidence, it is reasonable for the Court to conclude that there is insufficient evidence to prove a claim for defamation. While [Leal] offered evidence of the letters sent to his family a nd neighbors he failed to show that he was damaged. [Leal] stated that he felt the neig hbors treated him differently. However this is not enough to sustain a defamation claim. {¶ 7} The final claim Leal made out in his counterclaim was for conversion. Concerning this claim, the trial court made a dditional findings of fact in its conclusions of law: Other than the conflicting testimony of the parties there was no other evidence presented in regard to either the tools or the plants. Essentially this is a “he-said, she-said” issue. Considering the credibility of the witnesses, the exhibits, testimony and all the facts and circumstances in evidence, it is reasonable for the Court to find 8

 that there is insufficient evidence to support [Leal’s] conversion claim in regard to the power tools and plants. {¶ 8} From the judgment rendered against him, Leal appeals.

II. Without a Transcript of the Trial, the Record Fails to Demonstrate that the Judgment is Against the Manifest Weight of the Evidence {¶ 9} Leal’s sole assignment of error is as follows: {¶ 10} “THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFF A JUDGMENT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.” {¶ 11} We have not been provided with a transc ript of the evidence presented at this bench trial. Without a transcri pt of the evidence, we are una ble to overcome the presumption of regularity in the proceedings in the trial court. Collins v. Collins , 3d Dist. Marion No. 9-11-32, 2012-Ohio-749, ¶ 27, 29. {¶ 12} The only fault we might possibly find with the trial court’s legal reasoning would concern its conclusion that the April 24, 2008 agreement between the parties was void because it called for Shamblin to move out of the residence by April 21, 2008, a deadline that had already expired when the agreement was si gned. The essential pur pose of the move-out requirement might neveth eless have been satisfied by Sham blin’s having moved out within a reasonable time after signing the agreement, wit hout the necessity of voiding the agreement. {¶ 13} However, any error in the trial court’ s reasoning in this regard cannot have prejudiced Leal. In essence, the April 24, 2008 written agreement between the parties constituted a recognition that Leal owed Sham blin $35,000 that she had loaned him for the 9

 down payment on the residence, which he was to repay her on the condition that she move out. There is no suggestion in the agreement that it was concerned with other obligations between the parties. As reflected in th at part of the trial court’s conclusion of la w quoted in paragraph 4 of this opinion, the trial court actually char ged Leal with an obligation of only $33,000 for the repayment of Shamblin’s loan for the dow n payment, less than the amount the parties recited in the April 24, 2008 written agreement. Th erefore, any error on the part of the trial court in failing to give recognition to the April 24, 2008 agreement cannot have prejudiced Leal, since he was treated by the trial court more favorably than called for in that agreement. {¶ 14} In any event, Leal’s sole assignment of error – that the judgment of the trial court is against the manifest weight of the evid ence – cannot be supported by the record of this appeal, which does not contain a tran script of the trial. Therefore, Leal’s sole assignment of error is overruled.

III. Conclusion {¶ 15} Leal’s sole assignment of error havi ng been overruled, the judgment of the trial court is Affirmed.

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DONOVAN and FROELICH, JJ., concur.

Copies mailed to: Patrick J. Conboy, II Keith A. Fricker Hon. Frances E. McGee 10

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