[Cite as Dovel vs. Precision Pest Mgt., 2017-Ohio-203.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

HAVEN DOVEL : JUDGES: 

 : Hon. Sheila G. Farmer, P.J. 

 Plaintiff - Appellant : Hon. John W. Wise, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

PRECISION PEST MANAGEMENT : Case No. 2016CA00115 

 : 

 Defendant - Appellee : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Massillon Municipal 

Court, Case No. 2016-CVI-551 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT: January 17, 2017 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

WILLIAM E. WALKER, JR. BRANDON T. PAULEY 

333 Erie Street Roderick Linton Belfance, LLP 

South 192 50 S. Main Street, 10th Floor 

Massillon, Ohio 44648 Akron, Ohio 44308 
Stark County, Case No. 2016CA00115 2 

Baldwin, J.

{¶1} Appellant Haven Dovel appeals a judgment of the Massillon Municipal Court 

finding in favor of appellee Precision Pest Management on his complaint for termite 

damage. 

STATEMENT OF THE FACTS AND CASE 

{¶2} During the fall of 2014, appellant purchased a house. As a part of the 

process, Title One/Cutler Real Estate hired appellee to perform a pest inspection. On 

November 18, 2014, appellee inspected the property and prepared a Wood Destroying 

Insect Inspection Report. The report found that there was visible evidence of wood 

destroying insects, specifically dead insects and insect parts in the south central portion 

of the block basement. The report stated that it was not a structural damage report, and 

that it should be understood that some degree of damage, including hidden damage, may 

be present. The report noted that the structure or a portion thereof may have previously 

been treated. The report further recommended treatment for the control of termites. 

{¶3} Title One/Cutler Real Estate thereafter hired appellee to treat the property. 

Appellee treated the basement and perimeter of the home for termites on December 1, 

2014. After buying the house, appellant discovered termites in all of the walls of the 

basement, and not just the “south central’ wall that had been referenced in the report. On 

September 8, 2015, appellant received an estimate in the amount of $2,900.00 to remodel 

the basement. 

{¶4} Appellant filed the instant action seeking damages from appellee in the 

amount of $2,900.00, alleging that appellee failed to perform a property inspection of the 

residence prior to purchase and failed to disclose termite infestation in the basement. 
Stark County, Case No. 2016CA00115 3 

{¶5} The case proceeded to trial before a magistrate in the Massillon Municipal 

Court. On April 22, 2016, the magistrate filed a report finding that appellant did not prove 

his case by a preponderance of the evidence. The magistrate found that appellee did 

perform an inspection and did disclose termite infestation. The magistrate further found 

that there was no privity of contract between appellant and appellee because appellee 

was hired and paid by Title One/Cutler Real Estate. 

{¶6} Appellant filed objections to the magistrate’s report on May 5, 2016. On the 

same day, appellant filed a praecipe to the court reporter for preparation of the transcript 

of the proceedings and a motion for an extension of time for the preparation of the 

transcript. The trial court overruled appellant’s objections and entered judgment in 

accordance with the magistrate’s decision on May 9, 2016. However, the court then 

granted appellant’s motion for an extension of time for the preparation of the transcript on 

May 10, 2016, allowing appellant until August 1, 2016 to file the transcript of the 

proceedings. 

{¶7} Appellant assigns three errors on appeal: 

{¶8} “I. THE TRIAL COURT ERRED IN APPROVING AND ADOPTING THE 

MAGISTRATE’S DECISION AND RECOMMENDATION WHERE THE MAGISTRATE 

FOUND THE HOMEBUYER WAS NOT A PARTY TO THE TERMITE INSPECTION 

AGREEMENT WHEN OHIO LAW PROVIDES HOMEBUYERS HAVE STANDING TO 

SUE AS HOMEBUYERS ARE INTENDED BENEFICIARIES OF TERMITE INSPECTION 

AGREEMENTS EXECUTED IN CONJUNCTION WITH HOME PURCHASES. 

{¶9} “II. THE TRIAL COURT ERRED IN APPROVING AND ADOPTING THE 

MAGISTRATE’S DECISION AND RECOMMENDATION WHERE THERE WAS 
Stark County, Case No. 2016CA00115 4 

DOCUMENTARY AND TESTIMONIAL EVIDENCE OF THE DAMAGE AND THE COSTS 

TO REPAIR THE DAMAGE. 

{¶10} “III. THE TRIAL COURT ERRED IN APPROVING AND ADOPTING THE 

MAGISTRATE’S DECISION AND RECOMMENDATION BEFORE THE COURT 

REPORTER COMPLETED THE TRANSCRIPTION OF PROCEEDINGS BY THE 

EXTENSION DATE ORDERED BY THE TRIAL COURT.” 

III. 

{¶11} We address the third assignment of error first, as it is dispositive of the 

appeal. 

{¶12} Civ. R. 53(D)(3)(b)(iii) provides for the preparation of a transcript following 

the filing of objections to a magistrate’s decision: 

An objection to a factual finding, whether or not specifically 

designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be 

supported by a transcript of all the evidence submitted to the magistrate 

relevant to that finding or an affidavit of that evidence if a transcript is not 

available. With leave of court, alternative technology or manner of reviewing 

the relevant evidence may be considered. The objecting party shall file the 

transcript or affidavit with the court within thirty days after filing objections 

unless the court extends the time in writing for preparation of the transcript 

or other good cause. If a party files timely objections prior to the date on 

which a transcript is prepared, the party may seek leave of court to 

supplement the objections. 
Stark County, Case No. 2016CA00115 5 

{¶13} Appellant filed objections to the magistrate’s report on May 5, 2016, along 

with a praecipe for the transcript and a motion for an extension of time to file the transcript. 

The trial court overruled appellant’s objections to the magistrate’s report on May 9, 2016, 

but granted the motion for an extension of time to file the transcript on May 10, 2016, 

giving appellant until August 1, 2016 to file the transcript. The transcript of the proceedings 

was filed on June 22, 2016. 

{¶14} Ohio appellate courts have consistently held that a trial court errs in ruling 

on a party's objections to a magistrate's factual findings without allotting the party the 

requisite 30 days to obtain the necessary transcript. Haverdick v. Haverdick, 11th Dist. 

Trumbull No.2010–T–0040, ¶ 17, 23; DeFrank–Jenne v. Pruitt, 11th Dist. Lake No.2008–

L–156, 2009–Ohio–1438, ¶ 12; Bawab v. Bawab, 8th Dist. Cuyahoga No. 96217, 2011–

Ohio–5256, ¶ 28; Cavo v. Cavo, 4th Dist. Pickaway No. 05CA14, 2006–Ohio–928, ¶ 26; 

Lincoln v. Callos Mgt. Co., 2nd Dist. Montgomery No. 23848, 2010–Ohio–4921, ¶ 10; 

Ohio Environmental Protection Agency v. Lowry, 10th Dist. Franklin No. 23848, 2011-

Ohio-6820, ¶ 14. The trial court ruled on appellant’s objections to the factual findings of 

the magistrate four days after they were filed, without giving appellant the thirty days 

provided by rule to file a transcript. Further, appellant requested a transcript of the 

proceedings at the same time he filed his objections, and requested an extension of time 

for its filing, which the trial court ruled on the day after ruling on the objections. The trial 

court erred in overruling appellant’s objections without allowing appellant the time set forth 

in Civ. R. 53 to file the transcript. 

{¶15} The third assignment of error is sustained. Appellant’s first and second 

assignments of error are premature based on our ruling on the third assignment of error. 
Stark County, Case No. 2016CA00115 6 

{¶16} The judgment of the Massillon Municipal Court is reversed and this case is 

remanded to that court for further proceedings according to law, consistent with this 

opinion. Costs are assessed to appellee. 

By: Baldwin, J. 

Farmer, P.J. and 

Wise, J. concur.