[Cite as Payette Fin., Servs., L.L.C. v. Mtge . Electronic Registration Sys., Inc. , 2020-Ohio-5055.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO

PAYETTE FINANCIAL SERVICES, LLC, : O P I N I O N Plaintiff, : CASE NO. 2020-P-0010

- vs - : MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., ACTING SOLELY AS NOMINEE FOR MB FINANCIAL BANK, N.A., et al., :

:

: Defendants-Third Party Plaintiffs-Appellants/ Cross-Appellees, :

: DAVID GRAY, et al., : Third Party Defendants- Appellees/Cross-Appellants. :

Civil Appeal from the Portage County Court of Common Pleas, Cas e No. 2016 CV 00969.

Jud g ment: Affi r med.

Kerin Lyn Kaminski and Kathleen A. Nitschke, Giffen & Kaminski, LLC, 1300 East Ninth Street, Suite 1600, Cleveland, Ohio 44114 (For Defendants-Third Party PlaintiffsAppellants/Cross-Appellees )

. Jeffrey Mark Levinson , Levinson LLP, 55 Public Square, Suite 1750, Cleveland, Ohio 44113 ( For Third Part y Defendants-Appellees/Cross-Appellants )

.

MARY JANE TRAPP, J.2 {¶1} Cross-appellants, David and Shelly Gray (collectively, “the Gra ys”), appeal from the judgments of the Portage County Court of Common Pleas, which adopted the magistrate’s decision and overruled their objections, finding t hat while the Grays asserted a “vague” affirmative defense of release in their answer to the Third Party Complaint, they did not assert a “counterclaim of any kind” that “meets the req uirements of the Ohio Rules of Civil Procedure as a properly pleaded claim for damages” for breach of contract. {¶2} In the Grays’ sole assignment of error, they argue that the tri al court erred in failing to find that they asserted a valid breach of contrac t claim via an affirmative defense because the cross-appellees, Douglas and Kristine Ritze l (collectively, “the Ritzels”), commenced and prosecuted third party claims against them in direct contravention of the parties’ earlier mutual release, thus enti tling the Grays to damages. They further assert the trial court erred in failing to find th e issue was tried by implied consent pursuant to Civ.R. 15(B) after the Ritzels made a motio n to amend their pleadings

to conform to the evidence. {¶3} A review of the record and pertinent law reveals the Grays only asserted a

breach of the mutual release as an affirmative defense and did not file a counterclaim or a motion for leave to amend. There is sparse testimony by Mr. Gray regarding the costs they incurred from the underlying litigation as a result of the alleged breach. Further, objections were made to this line of questioning, which were su stained. Moreover, to find a breach of contract claim was impliedly tried by consent would cause a substantial prejudice to the Ritzels. {¶4} Thus, the judgment of the Portage County Court of Common Pleas is

affirmed.3 Substantive and Procedural Facts {¶5} This case arises from a foreclosure action in which the Ritzels were the defendants/third-party plaintiffs along with their lender and c o-defendant/third-party plaintiff, MB Financial Bank, N.A. (“MBFinancial”), and the Gra ys were third-party

defendants. {¶6} In 2011, the Ritzels entered into a lease with an option to pur chase with the Grays for the subject residential property. In 2015, the Ritze ls signed a purchase agreement for the property. At the time the purchase agreement was executed, three mortgages encumbered the property – two held by Wells Fargo and a third originally held by Lake National Bank. It was alleged that Payette Financial S ervices, LLC (“Payette”) subsequently acquired a participation interest in that third no te and mortgage (the “Payette mortgage”). {¶7} At closing, the Wells Fargo liens were satisfied from the sale proceeds funded by MBFinancial. Neither the Ritzels nor MBFinancial dis covered, nor did the Grays disclose, the third mortgage prior to the closing of the sale of the property {¶8} To further complicate matters, after the purchase agreement was executed, but before closing, the relationship between the Ritzels and th e Grays grew tumultuous – culminating in the Grays filing an eviction action. The Grays alleged non-payment of amounts due under the lease agreement, and the Ritzels filed a counterclaim for specific performance and money damages. The parties eventually signed a confidential settlement agreement and mutual release – the subject of this a ppeal – and dismissed

the eviction action.4 {¶9} The Ritzels then completed the purchase, and the Grays delivere d a general warranty deed. Later, having been unable to collect ag ainst the Grays, Payette brought its foreclosure action, asserting its lien against the Ritzels’ residence as first in priority when it discovered the property had been sold to the R itzels. {¶10} In the foreclosure action, MBFinancial and the Ritzels filed am ended thirdparty claims against the Grays for breach of warranty deed, fra udulent misrepresentation, and unjust enrichment. In turn, the Grays filed an amended ans wer denying the allegations and raising various affirmative defenses, including a defense that “the claims against the Grays contained in the Third-Party Complaint were r eleased.” In their prayer for relief, the Grays requested the court to “enter judgment in favor of the Grays on the Third-Party Complaint as to each and every Count therein, asses sing any costs of this litigation against the Defendants and grant the Grays such furt her and additional relief as is just.” There were no further amendments to the pleadings. {¶11} After a lengthy discovery phase, which included, by the parties ’ stipulation, the filing of the mutual release from the eviction action into the record of the foreclosure action, a three-day trial was held before a magistrate. Trial Testimony and the Grays’ Claims {¶12} Counsel for the Grays concluded his opening statement by statin g: “At the end of this case, the Grays, who are the parties least able to afford this expense, will ask the Court for an award that the Defendants pay the costs the Gr ays incurred in this meritless litigation due to their breach of the contract of the mutual release.” {¶13} Mr. Gray testified briefly as to the mutual release:5 {¶14} “Q. So once you saw this mutual release in the closing documen ts, did you expect to be done with the Ritzels forever? {¶15} “A. Absolutely. {¶16} “Q. Did you think we would be here today? {¶17} “A. No. {¶18} “Q. Would you please read aloud the mutual release paragraph o f this document found on Page 2 at 1.0, starting with mutual releases? {¶19} “A. Mutual releases. Each party, including their respective f amilies, assignees, agents, heirs, beneficiaries, fiduciaries, represent atives, insurers, successors, and assigns, exchange for the other party’s promises and covena nts and for all other good and valuable consideration, the sufficiency of which are a cknowledged, irrevocably and non-conditionally release, acquits, and forever discharges the other party from any and all claims, demands, costs, expenses, and cause of action o f any kind or description whatsoever whether known or unknown, vested or contingent, lega l or equitable, that each has or might have against the other relating to or arising out of subject matter of litigation to lease the purchase agreement, from the beginning of time until the date the agreement is fully executed. {¶20} “Q. It’s pretty comprehensive; isn’t it? {¶21} “A. Yes. {¶22} “Q. There are no exceptions to the mutual promise of finality there that I can see; do you? {¶23} “A. I think it all says it right there. {¶24} “Q. It covers all claims?6 {¶25} “A. Yes. {¶26} “Q. Known or unknown? {¶27} “A. Correct. {¶28} “Q. It doesn’t say anywhere except for any type of claims; doe s it? {¶29} “A. No, it does not. {¶30} “Q. All is all; right? {¶31} “A. Correct. {¶32} “Q. Unknown is unknown; right? {¶33} “A. Yes. {¶34} “Q. And yet in plain breach of that mutual promise of finality , we’re here now; right? {¶35} “[Counsel for MBFinancial/the Ritzels]: Objection. Just leadi ng all the way through, but I got tired of o bjecting, but that’s just – {¶36} “The Magistrate: Sustained. {¶37} “[Counsel for the Grays]: Okay. {¶38} “Q. So it would be a legitimate question to ask why we’re here now in light

of this release? {¶39} “A. Yes. {¶40} “Q. Can you tell me how? {¶41} “A. It’s been ongoing for two years now. Emotionally, it’s li ke a big, black cloud hanging over us. Financially, up to this trial it’s cost us $35,000.00 to deal with this.

It’s caused a lot of friction and undue distress on us as a fam ily.7 {¶42} “Q. Can you describe generally what the financial costs – or I ’m sorry, give me general categories of what the financial cost to you consist s of? {¶43} “A. Missed work. I’ve had to miss obviously these last three days. I missed a day for the deposition, hotel costs, flight costs, attorney f ees. {¶44} “Q. Did you also have to buy transcripts? {¶45} “A. Yes. We had to buy transcripts. I think that’s – covers it. {¶46} “Q. All expenses incurred because of the Ritzels’ breach of th e mutual release; correct? {¶47} “[Counsel for MBFinancial/the Ritzels]: Objection. {¶48} “The Magistrate: Sustained.” {¶49} Toward the end of trial after the court ruled on admission of e vidence, MBFinancial and the Ritzels moved to amend the pleadings to con form to the admitted evidence. The Grays did not object. Payette moved for a direc ted verdict, which was overruled. At that point, Payette indicated to the court that it had no rebuttal and that it would “like to make a similar motion to conform.” The magistra te responded that “the motion to have it conform to the evidence has already been put on by the Defendants [MBFinancial and Ritzels], so its conforming how it conforms. Okay.” Payette’s counsel replied, “Okay,” and the Grays’ counsel said, “Prospectively as well.” The magistrate responded, “All right. So tha t will be granted for all parties * * *.” {¶50} During closing arguments, both sides spoke briefly about the mu tual release. The Grays contended that the Ritzels had released all claims relating to the purchase agreement in the mutual release and asked the court fo r “judgment in their favor

on each of the Defendant’s claims and also an award of the cost s they incurred in this8 litigation on account of the Defendant’s clear breach of contra ct by proceeding in the face of the mutual release, which again, they hid.” {¶51} In rebuttal, counsel for MBFinancial and the Ritzels stated tha t “Mr. Gray’s counsel brought up that they should be able to get fees based o n breach of contract, and I think he means breach of the purchase agreement although I’m not quite sure. And so to the extent that that’s what he is indeed seeking, I would th en say that such fees can’t be recovered, because there’s no contract to be breached. The purchase agreement merged into the warranty deed, and so, therefore, there’s no wa y to enforce the purchase agreement at this point.” {¶52} The magistrate issued her decision, finding, in relevant part t hat: the Ritzels and the Grays entered into and executed a purchase agreement of fer, receipt and acceptance for the property, which was subsequently amended six times; the Grays signed a seller pre-closing information form that did not discl ose the Payette mortgage on the property; the Grays and the Ritzels were having various dis putes that culminated in February of 2016 when the Grays filed an eviction action agains t the Ritzels; however, the parties decided to proceed with a sale of the property and executed a purchase agreement for the property in April of 2016; and the Grays sign ed an owner’s affidavit and closing disclosure statements in connection with the sale of th e property, none of which disclosed the Payette mortgage. {¶53} The magistrate further found that the Grays then signed the ALT A Settlement Statement showing payments to Wells Fargo and a Clos ing Disclosure that failed to disclose the third mortgage. The magistrate found th at on the same date, the9 Grays and the Ritzels “executed a Confidential Settlement Agree ment and Mutual Release, which resolved the eviction litigation between them.” {¶54} The magistrate continued her findings by noting that pursuant t o the Mutual Release, the Grays and the Ritzels “released, acquitted and for ever discharged any and all claims, whether known or unknown, vested or contingent, leg al or equitable, that each party had or might have against the other relating to or arisin g out of the subject matters of the eviction action, the Lease Agreement, or the Purchase Ag reement, from the beginning of time until the date the Mutual Release was fully e xecuted on May 24, 2016. On May 24, 2016, the Grays executed a General Warranty Deed in favor of the Ritzels.” {¶55} The magistrate also found that “MB Financial did not rely upon the Grays’ Owners Affidavit regarding the condition of the title to the Pr operty, but relied upon the defective title exam and title commitments. No evidence was pr esented that the Ritzels justifiably relied upon any misrepresented statements by the Gr ays to induce reliance in the purchase of the Property. No evidence was presented that t he Grays intended to mislead any party.” {¶56} The magistrate then ordered, as is pertinent to this appeal, th at (1) “the Grays were granted judgment against MB Financial on each of the ir claims”; (2) the Ritzels were “granted judgment on their claim against Third-Par ty Defendants, Shelly Gray and David Gray, for breach of warranty deed”; (3) the Gray s were “granted judgment against Third-Party Plaintiffs, Douglas Ritzel and Kristine Rit zel, on the remainder of Third-Party Plaintiffs’ claims.” {¶57} Upon review, the trial court adopted the magistrate’s decision without modifications. MBFinancial, the Ritzels, and the Grays subsequ ently filed objections. In10 their objections, the Grays argued they were entitled to a judg ment in their favor and against the Ritzels and MBFinancial for breach of contract and to a hearing to determine damages incurred by the Grays as a result of the breach. {¶58} Based upon the court’s review of the pleadings, the trial trans cript, the various stipulations between the parties, the exhibits admitted into evidence, the objections asserted by the parties, and the arguments submitted in opposition to the objections, the court found the objections not well-taken. {¶59} More specifically, the court found that the Grays asserted in t heir objections

that MBFinancial and the Ritzels violated a Confidential Settle ment Agreement and Mutual Release in conjunction with an unrelated eviction action . They further argued that the magistrate’s decision found “all of the requisite elements of the Grays’ breach of

contract claim.” {¶60} Upon review of the pleadings, the court found that the Grays di d not file any claim at any time against MBFinancial or the Ritzels for breach of contract or any other claim for relief. In their amended answer, the Grays did asser t an affirmative defense that “[t]he claims against the Grays contained in the Third-Party Co mplaint were released” and requested that the court “grant the Grays such further and addi tional relief as is just.” {¶61} The court concluded that “while the Grays may have asserted a v alid (but vague) affirmative defense, they clearly did not assert a viabl e claim that meets the requirements of the Ohio Rules of Civil Procedure as a properly pleaded claim for damages.” {¶62} The instant appeal followed, with MBFinancial, the Ritzels, and the Grays all filing appeals of the trial c ourt’s judgments adopting the magistrate’s decision and11 overruling their respective objections. MBFinancial’s and the Ritzels’ appeal against Payette was subsequently dismissed. {¶63} The Grays now raise one assignment of error on appeal: {¶64} “The trial court erred as a matter of both fact and law in fail ing to find that the Grays properly asserted a valid breach of claim on account of the Ritzels’ commencement and prosecution of the third-party claims against the Grays in violation of the Mutual Release, entitling the Grays to damages therefor. ”

Standard of Review {¶65} On appeal, a trial court's overruling of objections and adoptio n of a magistrate’s decision will not be overruled unless the trial co urt abused its discretion. (Citations omitted.) Davis v. J & J Concrete , 11th Dist. Trumbull No. 2018-T-0074, 2019- Ohio-1407, ¶18. The term “abuse of discretion” is one of art, “connoting judgment exercised by a court which neither comports with reason, nor th e record.” State v.

Underwood , 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶30, citing State v.

Ferranto , 112 Ohio St. 667, 676-78 (1925). Stated differently, an abus e of discretion is the trial court’s “failure to exercise sound, reasonable, and l egal decision-making.” State

v. Beechler , 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black Law's Dictionary 11 (8th Ed.Rev.2004). Did the Grays Present a Claim for Relief? {¶66} The Grays assert that the trial court erred in finding that the y did not assert a breach of contract claim at trial because they established, w ithout objection, all of the elements necessary to establish such a claim. They further con tend that to find they did not assert a claim for breach of contract by way of a pleading ignores and is contrary to12 the plain provisions of Civ.R. 15(B), which allows amendments o f pleadings to conform to the evidence and trial of a claim not raised in the pleading s by implied consent. Thus, they assert that we should reverse for the trial court to hold a hearing on the issue of damages resulting from the Ritzels’ breach. {¶67} At the outset, we note that the Grays raise the second contenti on in their assignment of error (trial by implied consent) for the first ti me on appeal. This argument was not raised in the Grays’ objections to the Magistrate’s Dec ision. A party may not raise a claimed error on appeal unless that party has prope rly objected to that factual finding or legal conclusion in his or her objections to the mag istrate's decision. Civ.R. 53(D)(3)(b)(iv); Stauffer v. Stauffer , 11th Dist. Geauga No. 2008-G-2860, 2009-Ohio-998, ¶21, citing Loss v. Claxton, 11th Dist. Portage No. 2003-P-0128, 2005-Ohio-347, ¶71. {¶68} It is a well-established rule of appellate review that a court will not consider issues that an appellant fails to raise initially at the trial court. Warmuth v. Sailors , 11th Dist. Lake No. 2007-L-198, 2008-Ohio-3065, ¶36, citing Lippy v. Society Natl. Bank , 88 Ohio App.3d 33, 40 (11th Dist.1993) (appellant cannot raise an argument on appeal for the first time when there was no indication that the argument w as brought to the trial court’s attention and considered below); MKB Leasing Corp. v. Sagowitz, 4th Dist. Washington No. 02CA3, 2002-Ohio-5749, ¶24; McKenzie v. Spangler , 6th Dist. Lucas No. L-96-236, 1997 WL 243578, *2 (May 9, 1997) (an issue is not ripe for appellate review unless it was presented to the trial court and the court made a definitive ruling on the issue). {¶69} “The well-settled rule which requires the parties to adhere on appeal to the theory upon which they presented the case in the trial court, o perates to limit the scope13 of the review * * * the case, on appeal, must be reviewed and d ecided on the theory on

which it was tried in the court below * * *.” Webb v. Grimm , 116 Ohio App. 63, 74 (2d Dist.1961), quoting 3 American Jurisprudence, Section 830, at 3 72. {¶70} Moreover, the Grays failed to support their claimed error with arguments and failed to cite any legal authority as required by App.R. 16 (A)(7) and Loc.R. 16(C)(4). An appellant's brief must include argument and law, “containing the contentions of appellant with respect to each assignment of error presented fo r review * * *, with citations to the authorities, statutes, and parts of the record on which appellant relies.” S. Russell v. Upchurch , 11th Dist. Geauga Nos. 2001-G-2395 & 2001-G-2396, 2003-Ohio-2 099, ¶9, citing App.R. 16(A)(7)6. Therefore, this court may disregard a ppellant's assignments of error pursuant to App.R. 12(A)(2). Id. at ¶11; see also Karnofel v. Superior Waterproofing,

Inc. , 11th Dist. Trumbull No. 2018-T-0055, 2019-Ohio-1409, ¶39. {¶71} Had it been raised below, however, we would still find the clai med error to

be without merit. {¶72} The trial court found that “while the Grays may have asserted a valid (but vague) affirmative defense, they clearly did not assert a viabl e claim that meets the requirements of the Ohio Rules of Civil Procedure as a properly pleaded claim for damages.” We agree. {¶73} Civ.R. 8(A), “claims for relief,” states, in pertinent part, th at “[a] pleading that sets forth a claim for relief, whether an original claim, count erclaim, cross-claim, or thirdparty claim, shall contain (1) a short and plain statement of t he claim showing that the party is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled. If the party seeks more than twenty-fiv e thousand dollars, the party14 shall so state in the pleading but shall not specify in the dem and for judgment the amount of recovery sought, unless the claim is based upon an instrumen t required to be attached pursuant to Civ. R. 10.” {¶74} In addition, Civ.R. 13(A) provides that “[a] pleading shall state as a counterclaim any claim which at the time of serving the pleadin g the pleader has against the opposing party, if it arises out of the transaction or occu rrence that is the subject matter of the opposing party’s claim * * *.” (Emphasis added.) {¶75} There is no dispute that the Grays did not set forth a counterc laim for money damages for the alleged breach of the settlement agreement and release. This failure would appear to resolve the issue inasmuch as it has been waive d and the Grays cannot now assert it on appeal. See Poppe Law Office v. Orick , 3d Dist. Mercer No. 10-13-07, 2013-Ohio-5662, ¶30. {¶76} The Grays appear to be arguing that an affirmative defense of r elease was transformed into a counterclaim via Civ.R. 15(B), which allows for the amendment of pleadings to conform to evidence presented at trial, and rescue s them from waiver when their claim for breach of the settlement agreement and release was tried by implied consent of the parties. {¶77} Civ. R. 15(B) provides: {¶78} “When issues not raised by the pleadings are tried by express o r implied consent of the parties, they shall be treated in all respects a s if they had been raised in the pleadings. Such amendment of the pleadings as may be neces sary to cause them to conform to the evidence and to raise these issues may be made u pon motion of any party at any time, even after judgment. Failure to amend as provided herein does not affect15 the result of the trial of these issues. If evidence is object ed at the trial on the ground that

it is not within the issues mad e by the pleadings, the court ma y allow the pleadings to be amended and shall do so freely when the presentation of the mer its of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.” {¶79} An affirmative defense, however, cannot simply be transformed i nto a

counterclaim. The difference between a defense and a countercl aim is that “the latter is affirmative in nature, and asserts a separate cause of action, while the former serves to preclude recovery by asserting facts that defeat the plaintiff' s right to recovery.” (Citation omitted.) BAC Home Loans Servicing, L.P. v. Hall , 12th Dist. Warren No. CA2009-10- 135, 2010-Ohio-3472, ¶18. An affirmative defense generally ref ers to that which is offered to defeat an action by “denying, justifying, or confessing and avoiding the plaintiff's cause of action. It goes to the plaintiff's right and generally woul d not be considered an independent claim existing against the plaintiff.” (Citation o mitted.) Id

. {¶80} Civ.R. 8(C) provides that “[w]hen a party has mistakenly design ated a defense as a counterclaim or a counterclaim as a defense, the c ourt, if justice so requires, shall treat the pleading as if there had been a proper designat ion.” This provision, however, was intended to permit trial courts to remedy clerical errors made in designating

affirmative defenses and counterclaims and was not intended as a means by which a party could correct a substantive error in a pleading after the time for amendment to the pleading had passed. BAC Home Loans Servicing at ¶19, citing Am. Outdoor Advertising16 Co., LLC v. P & S Hotel Group, Ltd., 10th Dist. Franklin No. 09-AP-221, 2009-Ohio-4662, ¶26. {¶81} The transcript reveals that toward the end of trial, MBFinancia l and the Ritzels moved the court to amend the pleadings to conform to th e evidence, which the magistrate granted without objection. Payette then indicated t o the court that it would “like to make a similar motion to conform.” The magistrate res ponded that “the motion to have it conform to the evidence has already been put on by the Defendants [MBFinancial and Ritzels], so its conforming how it conforms. Okay.” Payett e’s counsel replied, “Okay,” and the Grays’ counsel said, “Prospectively as well.” The magi strate responded, “All right. So that will be granted for all parties * * *.” {¶82} We must agree with the Ritzels that the statement, “[p]rospecti vely as well” was “nebulous,” at best and certainly not a motion to amend. B ut it would appear from the magistrate’s response that she was going to accept all plea dings to have been amended to conform to the evidence presented at trial. {¶83} Such conformation, however, does not change the fact that the G rays did not seek affirmative relief under the release (as opposed to us ing the release as an affirmative defense to the Ritzels’ claims against them), and t here is nothing in this record on the part of the court or MBFinancial and the Ritzels that su ggests an affirmative claim for damages relating to the release was tried by implied consen t. {¶84} In State ex rel. Evans v. Bainbridge Twp. Trustees , 5 Ohio St.3d 41 (1983), the Supreme Court of Ohio explained that “[a]n implied amendmen t of the pleadings will not be permitted, however, where it results in substantial prej udice to a party. * * * Various factors to be considered in determining whether the parties imp liedly consented to litigate17 an issue include: whether they recognized that an unpleaded is sue entered the case * * *; whether the opposing party had a fair opportunity to address the tendered issue or

would offer additional evidence if the case were to be retried on a different theory * * *; and whether the witnesses were subjected to extensive cross-exa mination on the issue * * *.” (Citations omitted.) Id. at 45-46. {¶85} Under Civ.R. 15(B), implied consent is not established merely b ecause evidence bearing directly on an unpleaded issue is introduced w ithout objection. Rather, it must appear that the parties understood the evidence was aim ed at the unpleaded

issue. Id. at 46, citing MBI Motor Company, Inc. v. Lotus/East, Inc. , 506 F.2d 709, 711 (6th Cir.1974). {¶86} A review of the hearing transcript reveals that the only eviden ce on this issue was the mutual release agreement itself, which was submit ted by stipulation of all the parties, and Mr. Gray’s brief testimony, which touched upon the mutual release and that the underlying litigation was costing at least $35,000. {¶87} Counsel for MBFinancial and the Ritzels made three objections, all of which were sustained. Further, during closing arguments, counsel for MBFinancial and the Ritzels expressed confusion over the Grays’ argument, questioni ng whether they were talking about the real estate purchase agreement or the mutual release. The magistrate’s decision is also silent as to the issue. In the magistrate’s f indings, the mutual release is only referenced in conjunction with the confidential settlement agreement and the fact that it “resolved the eviction litigation between them [the Rit zels and the Grays].” {¶88} Thus, there is nothing in the record from which it can be infer red that the Ritzels or the court regarded the issue as one being tried, imp liedly or explicitly. It also18 appears that MBFinancial and the Ritzels would have cross-exami ned Mr. Gray and/or offered rebuttal evidence and witnesses on the issue, particula rly, damages. Instead they simply objected to the line of questioning, which the court sus tained. {¶89} “[T]he implication of Civ.R. 15(B) is that a trial court may no t base its decision upon an issue which was tried inadvertently. Whether an unpleaded issue is tried by implied consent is to be determined by the trial court , whose finding will not be disturbed, absent showing of an abuse of discretion.” Evans at 46, citing Chesapeake & Ohio Railway Co. v. Newman , 243 F.2d 804 (6th Cir.1957). {¶90} For the foregoing reasons, we find the Grays’ assignment of err or not well taken and affirm the judgment of the Portage County Court of Co mmon Pleas.

CYNTHIA WESTCOTT RICE, J., concurs, THOMAS R. WRIGHT, J., concurs in judgment only.