[Cite as Grant-Ross v. Dunsmore , 2021-Ohio-3509.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

April Grant-Ross and Alvin Ross Court of Appeals No. L-20-120 3 Appellees Trial Court No. CVG-20-11922

v. Diana M. Dunsmore DECISION AND JUDGMENT Appellant Decided: September 30, 2021

* * * * * Matthew L. Weisenburger, for appellant.

* * * * * DUHART, J. {¶ 1} This case is before the court on appeal by appellant, Diana Dun smore, from the November 4, 2020 judgment of the Toledo Municipal Court. F or the reasons that follow, we reverse.2. {¶ 2} Appellant sets forth two assignments of error: 1. Due to the actions of the Appellee[s] title did not transfe r as between Appellant and Appellee[s] meaning Appellant maintained ownership of the property. 2. Appellant had “color of title” based on the unsatisfied pur chase contract, and therefore the eviction was improper. Background {¶ 3} In the fall of 2020, appellant placed her house (“property” or “premises”) up for sale by owner. On September 23, 2020, appellant and appell ees, April Grant-Ross and Alvin Ross, entered into a contract in which appellees agre ed to purchase the property from appellant for $147,500. Per the contract, appell ees agreed to pay off appellant’s equity line of credit in the amount of $59,000, the n the remainder due was $88,500. {¶ 4} Appellees paid off the equity line of credit on September 30, 2 020, via a wire transfer. On October 6, 2020, appellant accepted a cashie r’s check from appellees’ attorney, in the amount of $88,500, issued by Glass City Federa l Credit Union. Also on October 6, 2020, appellant entered into an agreement with appel lee Grant-Ross wherein appellant agreed to vacate the property on October 12, 2020. A long with this agreement, appellant executed a quit claim deed transferring the property to appellees “in consideration of a payment of $147,500.” The deed was delivere d to appellees’ attorney.3. {¶ 5} Appellant deposited the cashier’s check with the Parish Federal Credit Union on October 7, 2020, and a 10-day hold was placed on the f unds. Thereafter, a stop-payment was placed on the cashier’s check. {¶ 6} On October 13, 2020, the deed was recorded. That same day, app ellees served appellant with a document entitled “Requesting Tenant to Leave Premises (Threeday Notice) Ohio R.C. 1923.04.” Appellees asked appellant to l eave the property due to “Squatting in my home I pay for because my house was burn down[ .]” {¶ 7} On October 19, 2020, appellees filed a complaint for forcible e ntry and detainer for damages in Toledo Municipal Court. On October 28, 2020, appellant filed

an answer and counterclaim. {¶ 8} On November 2, 2020, a hearing was held before a magistrate, an d Magistrate’s Decision and Findings were issued. In the decisio n, the magistrate found: appellant “in possession of premise w/o color of title since 8- 7-20”; “[n]otice to vacate (was) lawfully served”; and appellees “bought property & quit c laim deed conveyed[.]” Also in the decision, the magistrate entered judgment for appel lees for possession of the property, with a set out writ of restitution to issue at appell ees’ request. Appellees filed a praecipe for a writ of restitution on November 2, 2020. {¶ 9} On November 3, 2020, the judge issued a judgment entry, adoptin g the magistrate’s decision, and ordering that: appellees were “grant ed judgment for possession of the premises”; “a Writ of Restitution shall issue * * * at [ appellees’] request for4. execution of a SET OUT eviction”; and “the Bailiff shall execut e the writ.” The entry was journalized on November 4, 2020, and stated it was a final and appealable order. {¶ 10} On November 4, 2020, a writ of restitution for set-out was issu ed. {¶ 11} On November 5, 2020, appellant filed objections to the magistra te’s decision. On November 16, 2020, appellees filed a response to appellant’s objections. {¶ 12} On November 19, 2020, appellant’s objections to the magistrate’ s decision were denied on the basis that “no transcript [was] provided.” {¶ 13} On December 3, 2020, appellant filed a notice of appeal. The m unicipal court case was stayed pending appeal. Appellant filed a brief. Appellees did not file a

brief.

Law {¶ 14} This case involves an appeal of the trial court’s judgment in w hich the court adopted the magistrate’s decision and denied appellant’s objections to the magistrate’s decision. {¶ 15} Civ.R. 53 governs magistrate decisions and the subsequent actio ns of litigants and the trial court. Civ.R. 53(D), entitled “Proceed ings in Matters Referred to Magistrates,” states in relevant part:

* * * (3) Magistrate’s Decision; Objections to Magistrate’s Decision

* * *5. (b) Objections to Magistrate’s Decision. (i) Time for Filing. A party may file written objections to a magistrate’s decision within fourteen days of the filing of the decision, whether or not the court has adopted the decision during that f ourteen-day period as permitted by Civ.R. 53(D)(4)(e)(i). * * *

* * * (iii) Objection to Magistrate’s Factual Finding; Transcript or Affidavit. An objection to a factual finding, whether or not s pecifically designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), s hall 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 mann er of reviewing the relevant evidence may be considered. The objecti ng party shall file the transcript or affidavit with the court within th irty 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 se ek leave of court to supplement the objections. {¶ 16} In Lincoln v. Rush Expediting, Inc. , 2d Dist. Montgomery No. 23847, 2010-Ohio-5286, ¶ 10, the appellate court ruled that “[t]he tri al court erred when it6. overruled Lincoln’s objection to the magistrate’s factual findi ng without allowing Lincoln the thirty days in which to obtain and file a transcrip t of the hearing before the magistrate that Civ.R. 53(D)(3)(b)(iii) now permits.” The appe llate court made this ruling after recognizing that “Lincoln does not assign the Civ. R. 53(D)(3)(b)(iii) error the [trial] court committed for our review.” Id. at ¶ 11. Thus, an appellate court “may notice the [trial] court’s error only under the plain error doctrine.” Id. The appellate court, citing Goldfuss v. Davidson , 79 Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997), set

forth: “[I]n appeals of civil cases, the plain error doctrine is not f avored and may be applied only in the extremely rare case involving ex ceptional circumstances where error, to which no objection was made at th e trial court, seriously affects the basic fairness, integrity, or publ ic reputation of the judicial process, thereby challenging the legitimacy of the judicial process itself.” Id. {¶ 17} The appellate court found “[t]he error was in the [trial] court ’s final judgment * * * to which Lincoln could not have objected. * * * The error the trial court committed puts Lincoln in a classic ‘Catch 22’ dilemma. It aff ects the basic fairness of the proceeding in which his claim for relief was adjudicated ad versely to him. Therefore, * * * the error is plain error.” Id. at ¶ 12-13.7. Analysis The timeline of the proceedings in the trial court relating to and following the magistrate’s decision include: November 2, 2020: Hearing before magistrate; magistrate’s decis ion

filed. November 4, 2020: Trial court filed entry adopting magistrate’s

decision. November 5, 2020: Appellant filed objections to magistrate’s

decision. November 16, 2020: Appellees filed response to appellant’s objections. November 19, 2020: Trial court denied appellant’s objections du e to lack of transcript. December 3, 2020: Appellant appealed. The transcript of the hearing before the magistrate was submitted with the appellate record. {¶ 18} Upon review, we find the trial court committed plain error by d enying appellant’s objections due to lack of transcript fourteen days after she filed her objections, and by not affording appellant an opportunity to fi le the transcript within thirty days of filing her objections, as permitted by Civ.R. 53 (D)(3)(b)(iii). Like in8. Lincoln , the trial court’s error “affects the basic fairness of the pr oceeding.” We therefore find the trial court’s judgment cannot stand and must be reversed. {¶ 19} On consideration, the November 4, 2020 judgment of the Toledo M unicipal

Court is reversed. This matter is remanded to the trial court for further proceedings consistent with this decision. The costs of this appeal are as sessed to appellees pursuant to App.R. 24. Judgment reversed.

A certified copy of this entry shall constitute the mandate pu rsuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Christine E. Mayle, J. ________________________

____ JUDGE Gene A. Zmuda, P.J.

____________________________ Myron C. Duhart, J. JUDGE CONCUR.

____________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.