[Cite as Black v. Sakelios, 2014-Ohio-2587.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

RICKY LEE BLACK, : 

 CASE NO. CA2013-10-094 

 Plaintiff-Appellant, : 

 O P I N I O N 

 : 6/16/2014 

 - vs - 

 : 

NANCY M. SAKELIOS, : 

 Defendant-Appellee. : 

CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

Case No. 11CV80826 

Ricky Lee Black, 9261 State Route 48, Loveland, Ohio 45140, plaintiff-appellant, pro se 

Sams, Fischer, Packard & Schuessler, Robert S. Fischer, 8738 Union Centre Boulevard, 

West Chester, Ohio 45069, for defendant-appellee 

 

 M. POWELL, J.

{¶ 1} Plaintiff-appellant, Ricky Lee Black, appeals pro se separate decisions of the 

Warren County Court of Common Pleas adopting a magistrate's decision and imposing 

sanctions in appellant's replevin action. 

{¶ 2} Appellant and defendant-appellee, Nancy M. Sakelios, met in March 2008 and 

became romantically involved. Two months later, appellant moved into Sakelios' house with 

a number of his belongings, including a king-size bedroom suite, a queen-size canopy 
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bedroom suite, several designer chairs of different types, a 50-inch plasma-screen television, 

a Rolls Royce picnic basket, and two six-foot handmade stuffed bears. Some of the items 

were stored in the garage, while others were put to immediate use in the house. Appellant 

was unemployed and running low on funds at the time, so in addition to the full use of the 

house, Sakelios also allowed him to use one of her credit cards to purchase groceries and 

other household items. 

{¶ 3} Appellant moved out of Sakelios' house in October 2008, leaving many of his 

belongings behind to be retrieved at a later date. Appellant returned Sakelios' credit card 

prior to moving out. The pair remained in contact and, although the romance eventually 

ended, their relationship remained cordial for the ensuing two years. 

{¶ 4} In March 2011, appellant returned to Sakelios' house to retrieve his belongings. 

Appellant obtained the various items that were stored in the garage, but Sakelios refused to 

permit appellant to take his property from the house until he repaid her for charges he 

incurred on her credit cards in 2008.1 Appellant departed without attempting to retrieve the 

remainder of the items from the house, taking with him certain credit card statements 

Sakelios provided and the items from the garage. 

{¶ 5} A few days later, appellant emailed Sakelios a "demand letter" that read, in 

part: 

* * * 

You are hereby notified that you have ten (10) days from todays 

[sic] date to notify me or my representative, of a date certain 

within the next 30 days, when a bonded moving company can be 

contracted by me to remove my property from your residence. 

Last week I removed several * * * items from your residence at 

your request. At that time you presented me with several 

reciepts [sic] which were paid by you. You indicated these were 

 

1. In her testimony, Sakelios indicated that although she only gave appellant possession of one of the credit 

cards she held in her name, he had somehow incurred charges on several of them. 
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items I was financially responsible for reimbursing you. The total 

amount due is hereby acknowledged as $3,723.34. 

* * * My total claims [against you] total [sic] $5,400 * * *. 

{¶ 6} The matter remained unresolved and in October 2011, appellant filed a 

complaint against Sakelios alleging conversion and damage to his plasma-screen television. 

He later added an action for replevin. Sakelios filed a counterclaim alleging misuse of credit 

cards, frivolous conduct, and abuse of process. The court ordered mediation of the dispute, 

but appellant failed to appear for the mediation session. In November 2012, Sakelios filed a 

motion for sanctions against appellant for his failure to appear at their court-ordered 

mediation. 

{¶ 7} A trial was held before a magistrate in March 2013 upon the parties' various 

claims. At the hearing, appellant testified as to when, where, and how he had obtained 

ownership of each of the several items he sought to recover. On several occasions 

throughout the hearing, appellant asserted he was more interested in getting his personal 

property back than he was in obtaining money damages. In her testimony, Sakelios asserted 

that appellant had made gifts of some of the items of his property to her family. Specifically, 

Sakelios claimed that appellant had given one of the stuffed bears to her children, the Rolls 

Royce picnic basket to her mother, and the canopy bedroom suite to her daughter. 

{¶ 8} In his decision, the magistrate noted that appellant's conversion and replevin 

claims constituted alternative theories for two mutually exclusive remedies. Due to 

appellant's repeated assertion that his main concern was the recovery of his property, the 

magistrate concluded that appellant had effectively elected to pursue the remedy of replevin. 

Therefore, the magistrate found that appellant was entitled to an order of possession for the 

return of most of the items he requested. However, the magistrate found that appellant was 

not entitled to the return of the stuffed bear, the Rolls Royce picnic basket, and the canopy 
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bedroom suite because appellant had gifted those items as Sakelios had testified. 

{¶ 9} With respect to Sakelios' counterclaims, the magistrate concluded that Sakelios 

was entitled to recover $3,723.34 from appellant, with interest, for his use of her credit cards, 

but that her claims of frivolous conduct and abuse of process were without merit. A ruling on 

Sakelios' motion for sanctions was reserved for the trial court. 

{¶ 10} Appellant filed objections to the magistrate's decision. On September 11, 2013, 

the trial court overruled the objections and adopted the magistrate's decision. On September 

19, the trial court granted Sakelios' motion for sanctions against appellant for his failure to 

appear at their court-ordered mediation session in November 2012 and awarded Sakelios 

attorney’s fees of $250 and the mediator’s fee of $500. Appellant now appeals, raising four 

assignments of error. 

{¶ 11} Assignment of Error No. 1: 

{¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFAPPELLANT IN THAT THE MAGISTRATES [SIC] DECISION AND THE COURTS [SIC] 

DECISION AND ENTRY ADOPTING THE DECISION OF THE MAGISTRATE SHOULD BE 

MODIFIED TO REFLECT THAT THE PLAINTIFF DID NOT MAKE GIFTS OF ANY OF HIS 

PROPERTY TO DEFENDANT. 

{¶ 13} Appellant challenges the trial court's finding that he gifted specific personal 

items to Sakelios' relatives. First, appellant briefly disputes the credibility of Sakelios' 

testimony. Further, appellant appears to argue that the trial court was precluded from finding 

that appellant gifted any of his property to Sakelios' relatives because Sakelios failed to 

include a gift defense in her pleadings, and because she did not have standing to assert that 

appellant gifted personal items to third parties. 

{¶ 14} Appellant asserts that Sakelios was not a credible witness, and therefore takes 

issue with the trial court's reliance on Sakelios' testimony to find that he made gifts of his 
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property to her relatives. Given the evidence presented at the hearing, however, it was within 

the trial court's discretion to adopt the magistrate's finding that appellant made the gifts. 

"[I]ssues of credibility of witnesses and the weight to be given their testimony are issues for 

the trier of fact." Huynh v. Haskell, 12th Dist. Clermont No. CA2012-03-027, 2013-Ohio-656, 

¶16, citing Seasons Coal Co. v. City of Cleveland, 10 Ohio St.3rd 77, 81 (1984). Though 

there was conflicting testimony at the hearing, Sakelios did provide lucid accounts of the 

occasions on which appellant made the gifts and the trial court, as the trier of fact, was in the 

best position to determine the credibility of this testimony. See Huynh at ¶ 16. 

{¶ 15} With respect to Sakelios' pleadings and her standing to claim that appellant 

made the gifts to her relatives, appellant seems to misconstrue Sakelios' testimony on the 

issue of gifts as an affirmative defense. "An affirmative defense is a new matter which, 

assuming the complaint to be true, constitutes a defense to it." State ex rel. The Plain Dealer 

Publishing Co. v. Cleveland, 75 Ohio St.3d 31, 33 (1996). That is, an affirmative defense 

admits that the plaintiff has a claim, but asserts some legal reason the plaintiff cannot recover 

on it. Id. Under Civ.R. 8(C), a party must specifically plead an affirmative defense, or risk a 

finding by the trial court that the defense has been waived. Stafford v. Aces & Eights HarleyDavidson, LLC, 12th Dist. Warren No. CA2005-06-070, 2006-Ohio-1780, ¶ 18; Hoover v. 

Sumlin, 12 Ohio St.3d 1, 5 (1984). 

{¶ 16} The record shows that Sakelios' testimony on the issue of gifts was in the 

nature of a denial of appellant's factual averments, not an affirmative defense. See, e.g., 

Alberts v. Dunlavey, 54 Ohio App. 111, 114 (5th Dist.1936) (gift is not an affirmative defense 

if the establishment of a gift disproves plaintiff's claim). In order to prevail on either his 

conversion or replevin action, appellant was required to prove that he was entitled to 

possession of the property he claimed. DLK Co. of Ohio v. Meece, 12th Dist. Warren No. 

CA2012-07-060, 2013-Ohio-860, ¶ 28 (plaintiff's actual or constructive possession or 
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immediate right to possession of the property is a distinct element of conversion); Hershey v. 

Edelman, 187 Ohio App.3d 400, 2010-Ohio-1992, ¶ 16 (10th Dist.) ("A replevin action is a 

possessory action filed on behalf of one entitled to possession, against one having 

possession and control of the property at the time the suit begins"). The purpose of Sakelios' 

testimony relating to gifts was to disprove appellant's claim that he was entitled to possession 

of the particular items. 

{¶ 17} The Ninth Appellate District decided a similar case in Schneider v. Schneider, 

178 Ohio App.3d 264, 2008-Ohio-4495 (9th Dist.). In Schneider, the wife appealed the trial 

court's decision denying her the remedy of replevin of the family dogs. Id. at ¶ 12. The trial 

court had found that the husband had transferred ownership of the dogs to his parents 

through an inter vivos gift prior to his death. Id. Among other things, the wife challenged the 

parents' assertion of a "gift defense" in response to her claim. Id. at ¶ 15. Although the 

appellate court ultimately ruled for the wife on other grounds, with respect to the gift defense 

the court found that: 

[The wife] had the burden to persuade the trier of fact that she 

was entitled to possession of the dogs. * * * [The parents] had 

no burden of proof in this matter. The gift defense was not an 

affirmative defense that would have shifted the burden to them 

because it is neither listed in Rule 8(C) of the Ohio Rules of Civil 

Procedure, nor encompassed within the catchall provision for 

"any other matter constituting an avoidance or affirmative 

defense." [The parents] were not seeking affirmative relief and 

did not introduce a new issue into the case. They simply testified 

to that which disproved [the wife's] claim. 

Id. at ¶ 16. (Internal citations omitted.) 

{¶ 18} We find the Ninth Appellate District's reasoning applicable in the present case. 

Here, Sakelios was not seeking affirmative relief regarding the property that appellant was 

found to have gifted to her relatives, and she was not introducing a new issue into the case. 

See generally R.C. Olmstead, Inc. v. GBS Corp., 7th Dist. Mahoning No. 08 MA 83, 2009-
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Ohio-6808, ¶ 41 ("[W]here one simply testified to that which disproves the plaintiff's claim, an 

affirmative defense is not asserted"). Therefore, Sakelios' failure to plead a "gift defense" did 

not preclude a finding that appellant gifted some of his property to her relatives. 

{¶ 19} We also find appellant's argument regarding Sakelios' lack of standing to be 

without merit. "Standing" is defined as "'[a] party's right to make a legal claim or seek judicial 

enforcement of a duty or right.'" Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 

375, 2007-Ohio-5024, ¶ 27, quoting Black's Law Dictionary (8th Ed.2004). As was just 

discussed, Sakelios was not making a legal claim that appellant gifted the items to her 

relatives, and she was not seeking judicial enforcement of her relatives' rights. Sakelios 

offered her testimony regarding the gifts simply to disprove appellant's claim that he had 

satisfied all of the elements of conversion and replevin. 

{¶ 20} Appellant's first assignment of error is overruled. 

{¶ 21} Assignment of Error No. 2: 

{¶ 22} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFFAPPELLANT IN OVERRULING APPELLANTS [SIC] OBJECTION TO ADMITTING 

EVIDENCE THAT WAS MANUFACTURED BY APPELLEE. THE MAGISTRATE'S 

DECISION AND THE COURTS [SIC] DECISION AND ENTRY ADOPTING THE DECISION 

OF THE MAGISTRATE DECISION [SIC] SHOULD BE MODIFIED TO REFLECT THAT THE 

APPELLANT DID NOT MAKE ANY UNAUTHORIZED CHARGES TO APPELLEE'S CREDIT 

CARDS. AND THAT, THE APPELLEE'S MANUFACTURED DOCUMENTS ARE 

INADMISSIBLE IN LIEU OF THE ORIGINALS OR COPIES OF THE ORIGINALS. CUTOFF 

DATE OF DISCOVERY DOCUMENTS PRECLUDES ADMISSIBILITY OF BOTH APPELLEE 

AND APPELLANT. 

{¶ 23} Appellant argues that Sakelios' credit card statements should not have been 

admitted into evidence because they were not true copies of the originals, and were 
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submitted after the discovery cut-off date established by the magistrate. 

{¶ 24} Civ.R. 53(D)(3)(b)(iv) provides that "[e]xcept for a claim of plain error, a party 

shall not assign as error on appeal the court's adoption of any factual finding or legal 

conclusion * * * unless the party has objected to that finding or conclusion" to the trial court 

pursuant to the requirements of Civ.R. 53(D)(3)(b). Although appellant did object to the 

introduction of the credit card statements during the hearing before the magistrate, appellant 

did not raise that objection in his filings with the trial court as required by Civ.R. 53(D)(3)(b). 

Therefore, absent plain error, he has waived his right to appeal these issues. Roberts v. 

Roberts, 12th Dist. Clinton No. CA2012-07-015, 2013-Ohio-1733, ¶ 19. 

{¶ 25} This court has previously noted that in civil matters plain error will be 

recognized only in extremely rare cases involving exceptional circumstances where the error, 

to which no objection was made at the trial court, seriously affects the basic fairness, 

integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the 

underlying judicial process itself. Zugg v. Wisby, 12th Dist. Warren No. CA2010-08-079, 

2011-Ohio-2468, ¶ 14, quoting Imhoff v. Imhoff, 12th Dist. Clermont App. No. CA2003-09-

075, 2004-Ohio-3013, ¶ 11. There are no such exceptional circumstances here. Any error 

on this issue would be harmless because it is clear from the decisions of both the magistrate 

and the trial court that the basis for the finding of appellant's debt to Sakelios was not the 

credit card statements, but appellant's admission contained in the demand letter 

acknowledging a debt of $3,723.34. 

{¶ 26} Appellant's second assignment of error is overruled. 

{¶ 27} Assignment of Error No. 3: 

{¶ 28} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFAPPELLANT IN THE MAGISTRATES [SIC] DECISION AND THE COURTS [SIC] DECISION 

AND ENTRY ADOPTING THE MAGISTRATES [SIC] DECISION BY OVERRULING 
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APPELLANTS OBJECTION AS TO ADMITTING INTO EVIDENCE APPELLANTS [SIC] 

OPINION OF VALUE OF HIS PROPERTY, THE 50 INCH PIONEER PLASMA TV, THAT 

THE MAGISTRATE PREVIOUSLY ORDERED ADMISSION [SIC]. 

{¶ 29} Appellant asserts that the magistrate erred by refusing to allow him either to 

testify to the amount of damage done to his plasma-screen television, or to submit the written 

estimate he received for the repair of the television. Appellant seems to argue that had he 

been permitted to present such evidence, the magistrate could have found that appellant was 

entitled to set-off the $3,500 in damage to his television against the $3,723.34 he owed 

Sakelios. 

{¶ 30} "It is well-established that the admission of evidence 'lies within the broad 

discretion of the trial court, and a reviewing court should not disturb evidentiary decisions in 

the absence of an abuse of discretion that created material prejudice.'" Schneble v. Stark, 

12th Dist. Warren No. CA2011-06-063, 2012-Ohio-3130, ¶ 30, quoting State v. Morris, 132 

Ohio St.3d 337, 2012-Ohio-2407, ¶ 14. An abuse of discretion implies that the court's 

attitude is unreasonable, arbitrary, or unconscionable. Schneble at ¶ 30, citing Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶ 31} Because appellant did not call the authors of the estimate as witnesses or 

anyone else who could authenticate the estimate, the magistrate correctly concluded that 

appellant's information regarding the repair estimate constituted inadmissible hearsay under 

Evid.R. 802. Beck v. W. Chester Lawn & Garden, 12th Dist. Butler No. CA2012-12-248, 

2013-Ohio-2276, ¶ 9. Additionally, even if we were to assume, without deciding, that the 

information regarding the repair estimate was admissible, we find that appellant was not 

prejudiced by the trial court's decision to exclude it. Both the magistrate and the trial court 

concluded that regardless of the amount of damage to the television, Sakelios would not 

have been liable because no bailment contract existed between appellant and Sakelios. 
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Accordingly, we find the trial court did not abuse its discretion in excluding both appellant's 

testimony regarding the repair estimate and the written estimate itself. Schneble at ¶ 33. 

{¶ 32} Appellant's third assignment of error is overruled. 

{¶ 33} Assignment of Error No. 4: 

{¶ 34} THE COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN 

ITS DECISION AND ENTRY ON DEFENDANTS [SIC] MOTION FOR SANCTIONS 

AGAINST PLAINTIFF RICKY LEE BLACK, AND THE SANCTIONS MUST BE VACATED AS 

TO RICKY LEE BLACK. 

{¶ 35} Appellant does not dispute that Sakelios and her counsel were present at a 

court-ordered mediation session scheduled for November 8, 2012, and that he failed to 

appear at that session. However, appellant asserts the trial court erred when it granted 

Sakelios' motion for sanctions for his failure to appear. It is difficult to discern appellant's 

legal argument on this point, but it appears he is arguing that the sanctions were 

inappropriate because of his extenuating circumstances; namely, appellant had a death in 

the family that required his presence out of town on the day of the mediation; appellant had 

notified his counsel of this conflict; but appellant's counsel withdrew the day before the 

scheduled mediation without notifying either Sakelios or the mediator of appellant's conflict. 

{¶ 36} The imposition of sanctions is within the discretion of the trial court. Pancher v. 

Pancher, 12th Dist. Clermont No. CA86-06-038, 1987 WL 14318, *2 (July 20, 1987), citing 

Toney v. Berkemer, 6 Ohio St.3d 455 (1983). 

{¶ 37} The trial court did not abuse its discretion. First, the imposition of sanctions 

was clearly within the trial court's authority. Telecom, Ltd. v. Wisehart & Wisehart, Inc., 10th 

Dist. Franklin No. 11AP-1147, 2012-Ohio-4376, ¶ 13-15. Consistent with its constitutional 

authority, the trial court imposed sanctions against appellant under W.C.C.P. Local Rule 

4.21, which states that "[i]f any individual ordered by the Court to attend mediation fails to 
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attend without good cause * * * the Court may impose sanctions, which may include, but are 

not limited to, the award of attorney fees and other costs * * * at the discretion of the 

assigned judge or magistrate." 

{¶ 38} Moreover, the trial court aptly found that "while the loss of a family member is a 

valid reason for not being available for a previously scheduled mediation, not notifying the 

other party or the mediator of this unavailability for whatever reason, subjects the nonappearing party to sanctions." Under the facts of this case, appellant did not fulfill his 

responsibility to ensure that Sakelios and the mediator had been notified that he would not 

attend the mediation session. See generally Postler v. Cent. Trust Co., N.A. of Cincinnati, 

12th Dist. Warren No. CA92-11-103, 1993 WL 282681, *3 (July 26, 1993) (the imputation of 

attorney negligence to his client is within the discretion of the trial court); Andring v. Andring, 

3 Ohio App.2d 417, 420 (8th Dist.1965) ("The general rule of law seems to be that the 

negligence of an attorney may be imputed to his client when by the exercise of care on the 

client's part, [the client] would have avoided the consequences of the negligence of his 

attorney"). Finally, the trial court ordered appellant to pay only the actual costs related to his 

failure to appear: the cost of the mediator ($500) and the attorney fees related to preparing 

the motion for sanctions ($250). 

{¶ 39} Appellant's fourth assignment of error is overruled. 

{¶ 40} Judgment affirmed. 

 HENDRICKSON, P.J., and PIPER, J., concur.