[Cite as Paradise 4U Properties, Ltd. v. Clark, 2016-Ohio-3269.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Paradise 4U Properties, Ltd., : 

 Plaintiff-Appellee, : 

 No. 15AP-720 

v. : (M.C. No. 2014 CVG 11475) 

April Clark, et al., : (REGULAR CALENDAR) 

 Defendants-Appellants. : 

 

D E C I S I O N 

Rendered on June 2, 2016 

 

On brief: Willis Law Firm, LLC, William L. Willis, 

Dimitrios G. Hatzifotinos, and Michael J. Cassone, for 

appellee. Argued: Dimitrios G. Hatzifotinos. 

On brief: April Clark and Diamond Clark, pro se. 

 

APPEAL from the Franklin County Municipal Court 

BRUNNER, J. 

{¶ 1} This matter began as an action for eviction and money damages filed by 

plaintiff-appellee, Paradise 4U Properties, Ltd. ("Paradise"), against defendantsappellants, April Clark and Diamond Clark ("the Clarks"), to which the Clarks filed a 

counterclaim. The Clarks appeal from a judgment of the Franklin County Municipal 

Court denying their motions for a new trial and for relief from judgment in the underlying 

case. For the following reasons, we affirm the judgment of the trial court. 

I. STATEMENT OF FACTS 

{¶ 2} On April 15, 2014, Paradise filed a complaint for eviction and money 

damages against the Clarks alleging that the Clarks had entered into a rental contract as 

tenants with Paradise for a certain residence; that the Clarks were in default of the rental 

agreement due to nonpayment of rent; that Paradise was entitled to possession of the 
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No. 15AP-720 

premises; and that the Clarks were unlawfully and forcibly detaining Paradise from 

possession of the premises. Paradise further alleged that the Clarks were indebted to 

Paradise for unpaid rent, damages to the premises beyond normal wear and tear, and late 

charges and utility bills. Paradise also alleged that, on or about April 3, 2014, it had duly 

served the Clarks with written notice to vacate the premises. 

{¶ 3} On April 21, 2014, the Clarks, each acting pro se and on their own behalf, 

filed a joint answer to the complaint. On April 22, 2014, the Clarks filed an addendum to 

answer, requesting in the body of the pleading that it be construed as a counterclaim 

against Paradise for rent abatement and out-of-pocket medical expenses. On 

April 29, 2014, Paradise answered the Clarks' addendum to answer/counterclaim, 

denying all allegations and requesting that the counterclaim be dismissed for failure to 

state a claim against Paradise for which relief may be granted. 

{¶ 4} On April 29, 2014, the matter came for an eviction hearing before a 

magistrate. Paradise and the Clarks appeared for the hearing. Following the hearing, the 

magistrate issued a decision that, based on the evidence presented, the notice to vacate 

conformed to R.C. 1923.04 and was properly served and that Paradise had proven nonpayment of rent and allegations set forth in the complaint by a preponderance of the 

evidence. The magistrate granted judgment for Paradise for restitution of the premises 

and costs. The trial court adopted the magistrate's decision and entered final judgment 

for Paradise for restitution and court costs. The Clarks were subsequently set out of the 

premises consistent with the trial court's order. 

{¶ 5} The remaining matters of Paradise's damages and the Clarks' counterclaim 

were tried to the bench on January 8, 2015, with both Paradise and the Clarks presenting 

evidence to the trial court. At the close of presenting evidence, Paradise moved for a 

directed verdict on the grounds that the Clarks had failed to present evidence of any 

damages. On May 28, 2015, the trial court entered an order granting Paradise's motion 

for directed verdict and dismissing the Clarks' counterclaim because no evidence of 

damages had been presented. The trial court, "[u]pon considering all admissible evidence 

and testimony," entered a separate order in favor of Paradise for money damages. 

(May 28, 2015 Entry.) Notice of the trial court's order was issued to the parties on or 

about May 28, 2015. 
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No. 15AP-720 

{¶ 6} On June 11, 2015, the Clarks filed a motion for new trial and a motion for 

relief of judgment. Each motion contained the identical argument, in which they asserted 

that the trial court's "attitude * * * was unreasonable, arbitrary and/or unconscionable" 

and, further, that the trial court had "abused its discretion by not considering all damages 

and liabilities and/or the merits; in fact [sic] the defendant['s] [sic] counterclaims 

or merits were ignored." (Defs.' Mot. for New Trial at 1; Defs.' Mot. for Relief from Jgmt. 

at 1.) Paradise filed a memorandum contra on June 17, 2015. 

{¶ 7} On June 29, 2015, the trial court entered judgment denying the Clarks' 

motions. The trial court noted that its entry and order of May 28, 2015 sustained 

Paradise's motion for a directed verdict and dismissed the Clarks' counterclaims because 

no evidence of damages had been presented at trial, a requirement to sustain the 

counterclaims. Finding that the counterclaims had been addressed during trial, the trial 

court denied the motion for new trial. The trial court also denied the Clarks' motion for 

relief of judgment because they had failed to show that they were entitled to the requested 

relief pursuant to Civ.R. 60(B). The trial court noted further that a motion for relief from 

judgment should not be used as a substitute for appeal. The trial court's order was 

journalized on June 29, 2015, and notice thereof was issued to the parties on or about 

June 30, 2015. 

{¶ 8} On July 29, 2015, the Clarks filed a notice of appeal of the judgments of the 

trial court "entered by said trial court on the 30th of July, 2015 [and] * * * on May 28, 

2015," accompanied by a memorandum in support that contained a recitation of the 

Clarks' objections to the trial court's conduct and rulings, alleging bias and abuse of 

discretion on the part of the trial court and irregularities in the proceedings. (Notice of 

Appeal at 1.) The trial court did not enter any judgment on July 30, 2015; rather, it 

entered judgment on June 29, 2015 on the Clarks' motion for new trial and motion for 

relief of judgment, both filed June, 11, 2015. The Clarks did not attach a copy of either 

judgment entry to their notice of appeal. The Clarks' did not timely appeal the May 28, 

2015 judgment, so we lack jurisdiction over their appeal of that judgment. However, in 

our exercise of discretion, it appears that the Clarks meant in their July 29, 2015 notice of 

appeal to appeal the June 29, 2015 decision of the trial court and not a nonexistent 
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No. 15AP-720 

decision dated July 30, 2015.1 Therefore, we will review their appeal of the June 29, 2015 

judgment. 

II. ASSIGNMENTS OF ERROR 

{¶ 9} The Clarks appeal from the trial court's June 29, 2015 judgment denying 

their motion for new trial and motion for relief of judgment, assigning three errors for this 

court's review: 

I. Failure to provide service of 05/28/15 judgment entry. 

II. Failure to set aside judgment and denial of motion for new 

trial. 

III. Denial of motion to vacate judgment. 

III. DISCUSSION 

{¶ 10} The Clarks' brief does not provide citations to the record in support of their 

assignments of error. Instead, the brief sets forth their general contention that the trial 

court abused its discretion in ruling on motions during the bench trial held in the Franklin 

County Municipal Court in entering judgment unfavorable to the Clarks after trial, and in 

subsequently denying the Clarks' motions for a new trial and for relief of judgment. The 

Clarks' brief does not set forth a factual or legal basis that establishes that the trial court 

judge abused his discretion. 

A. First Assignment of Error 

{¶ 11} The Clarks allege that the trial court did not properly serve them with the 

judgment entry that was entered on the trial court's docket May 28, 2015. They contend 

that a judgment entry must be served according to procedures contained in Civ.R. 4. They 

further contend that the clerk of court failed to follow those procedures, having used 

incorrect addresses for mailing the May 28, 2015 judgment entry to them. They claim not 

to have received the judgment entry. Consequently, they argue that the trial court's 

judgment must be vacated. 

 

1 App.R. 4(B)(2) sets forth exceptions to the appeal time period of App.R. 4(A). In a civil case, if a party files 

a timely and appropriate motion for a new trial under Civ.R. 59, "the time for filing a notice of appeal from 

the judgment or final order in question begins to run as to all parties when the trial court enters an order 

resolving the last of these post-judgment filings." App.R. 4(B)(2)(b). 

Here, the Clarks timely filed their motion for a new trial on their counterclaim (albeit without reference to 

Civ.R. 59) 14 days after the trial court issued its order dismissing the counterclaim. On June 29, 2015, the 

trial court issued its order denying the Clarks' post-judgment request for a new trial. The Clarks filed their 

notice of appeal of that order on July 29, 2015. 
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No. 15AP-720 

{¶ 12} Service of judgment entries is governed not by Civ.R. 4 but by Civ.R. 58(B) 

and, by incorporation, Civ.R. 5(B), which allows service by mailing the judgment entry to 

a party's last known address by United States mail, in which event service is complete 

upon mailing. Civ.R. 58(B) further provides that the clerk's failure to serve notice "does 

not affect the validity of the judgment or the running of the time for appeal except as 

provided in App.R. 4(A)." 

{¶ 13} The record shows that, on or about May 28, 2015, the clerk of court served 

the May 28, 2015 judgment entry via ordinary United States Mail on April Clark at 1757 

Sunapple Way, Columbus, Ohio 43232, and on Diamond Clark at 1766 Sunapple Way, 

Columbus, Ohio 43232. According to the trial court's records, these are the last known 

addresses for the Clarks. The trial court's records further show that the United States 

Postal Service returned both mailings to the clerk of court as undeliverable; the envelope 

returned to the clerk on June 3, 2015 bore a label that provided an address of "1780 

Sunapple Way, Columbus Ohio 43232-7415," whereas the envelope returned to the clerk 

on June 8, 2015 bore a label with the information "not deliverable as addressed, unable to 

forward." (May 28, 2015 Notice of Court Order.) There is no evidence in the record that 

either of the Clarks notified the trial court of their change of address to 1780 Sunapple 

Way, Columbus, Ohio 43232 before May 28, 2015. Moreover, although the Clarks 

claimed that they never received the May 28, 2015 judgment entry, they filed motions on 

June 11, 2015 for a new trial "with respect to the judgement [sic] ordered on May 28, 

2015" and for relief of judgment "with respect to the judgement [sic] ordered on May 28, 

2015." (Jun. 11, 2015 Defs.' Mot. for New Trial at 1; Jun. 11, 2015 Defs.' Mot. for Relief of 

Jgmt. at 1.) The record indicates that, even if the Clarks failed to receive the May 28 

judgment entry at their 1780 Sunapple Way address, they were aware of the judgment and 

filed motions regarding it 14 days after the judgment entry was filed and served by the 

clerk. Thus, the Clarks were not harmed by the mailing of the judgment entry to their 

addresses of record as of May 28, 2015. 

B. Second and Third Assignments of Error 

{¶ 14} The Clarks' second and third assignments of errors are based on their 

assertions that the trial court abused its discretion by not considering certain evidence 

and legal arguments they had offered, or had desired to offer, at the bench trial before the 

trial court. 
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No. 15AP-720 

{¶ 15} We note that the Clarks did not file a transcript of the trial court's 

proceedings. " ' "The duty to provide a transcript for appellate review falls upon the 

appellant. This is because the appellant bears the burden of showing error by reference to 

matters in the record." ' " Lee v. Ohio Dept. of Job & Family Servs., 1oth Dist. No. 06AP625, 2006-Ohio-6658, ¶ 10, quoting Dailey v. R & J Commercial Contracting, 10th Dist. 

No. 01AP-1464, 2002-Ohio-4724, ¶ 20, quoting Fleisher v. Siffrin Residential Assoc., 

Inc., 7th Dist. No. 01-CA-169, 2002-Ohio-3002, ¶ 25, following Knapp v. Edwards 

Laboratories, 61 Ohio St.2d 197, 199 (1980). "Absent a transcript, this court must 

presume the regularity of the proceedings below and affirm the trial court's decision." Lee

at ¶ 10, citing Edwards v. Cardwell, 10th Dist. No. 05AP-430, 2005-Ohio-6758, ¶ 4-6; 

Dailey at ¶ 20. " 'Where a party to an appeal fails to file portions of the transcript 

necessary for resolution of his assignments of error, the assignments will be overruled.' " 

Lee at ¶ 10, quoting Maloney v. Maloney, 34 Ohio App.3d 9 (11th Dist. 1986) syllabus. 

Here, a transcript of the proceedings is necessary for a thorough review of appellant's 

contentions. The Clarks' objections generally involve questions of fact. Without 

reviewing a transcript, this court cannot confirm the Clarks' conclusions regarding any 

bias or abuse of discretion on the part of the trial court, any irregularities in the 

proceedings, or the evidence presented at trial. Therefore, given the Clarks' failure to 

include a transcript of the proceedings before the trial court, upon review, this court must 

presume the regularity of the trial court's proceedings and affirm its judgment. 

{¶ 16} Further, in reviewing a trial court's judgment following a bench trial, " 'an 

appellate court is "guided by the presumption" that the trial court's findings are correct.' " 

Lee at ¶ 11, quoting Broadstone v. Quillen, 162 Ohio App.3d 632, 2005-Ohio-4278, ¶ 18 

(10th Dist.), citing Patterson v. Patterson, 3d Dist. No. 17-04-07, 2005-Ohio-2254, ¶ 26, 

quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 79-80 (1984). We may not 

substitute our judgment for that of the trial court and must affirm the judgment if it is 

supported by some competent, credible evidence going to the essential elements of the 

case. Lee at ¶ 11, citing Reilley v. Richards, 69 Ohio St.3d 352 (1994); Koch v. Ohio Dept. 

of Natural Resources, 95 Ohio App.3d 193 (10th Dist.1994). 

{¶ 17} The record before us indicates that the trial court's judgments entered on 

May 28 and June 29, 2015 were based on competent, credible evidence going to the 
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No. 15AP-720 

essential elements of the case. Lee. The brief does not provide us with legal errors for 

review, and the lack of a transcript of proceedings before the trial court at its bench trial 

leaves us with nothing in the record that serves to overcome this presumption. 

IV. CONCLUSION 

{¶ 18} Accordingly, the Clarks' three assignments of error are overruled, and the 

June 29, 2015 order of the Franklin County Municipal Court is affirmed. 

Judgment affirmed. 

KLATT, J., concurs. 

DORRIAN, P.J., concurs in judgment only. 

______________________________