Ott v. Reynolds
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[Cite as Ott v. Reynolds, 2004-Ohio-2733.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO TOM OTT AND AMY OTT : Plaintiffs-Appellees: vs. : C.A. CASE NO. 20076 T.C. CASE NO. 03CV2989 CURTIS REYNOLDS dba : (Civil Appeal from CASTLE TERMITE & PEST CONTROL Municipal Court) Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 28th day of May, 2004. . . . . . . . . . Tom and Amy Ott, 8968 Deep Forest Lane, Centerville, Ohio 45458 Plaintiffs-Appellants, Pro Se Rebecca Barthelemy-Smith, 4133 North Dixie Drive, Dayton, Ohio 45414, Atty. Reg. No. 0003474 Attorney for Defendant-Appellant . . . . . . . . . GRADY, J. {¶1} On August 11, 2003, the trial court adopted a decision of its magistrate and entered a judgment in the amount of $1,728.00 in favor of Plaintiffs, Tom and Amy Ott, on their Reynolds. in claim for relief against Defendant, Curtis The Otts had claimed that Reynolds was negligent preparing a termite infestation inspection report concerning a house the Otts wished to purchase and later did. The amount of the judgment is the cost of repairs the Otts said they were required to make as a proximate result of Reynolds alleged negligence. 2 Reynolds has appealed from that judgment. {¶2} Reynolds argues on appeal, as he did in the trial court, that his oral agreement with the Otts required him to provide only an estimate of the cost of treating any termite infestation, not to report the extent and cost of repair of any termite damage, and that he provided the estimate he promised. meaning Reynolds contentions challenge the weight and of the evidence presented in the trial court s proceedings concerning the intentions of the parties with respect to what their respective rights and duties would be when they entered into their contract. {¶3} App.R. 9(B) states that [i]f the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, the appellant shall include in the record a transcript of appointed by proceedings. evidence The conclusion. all transcript the Id. court relevant to is to the prepared transcribe by findings the its or person recorded If no record was made from which a transcript can be made, the appellant may prepare and file a statement of the evidence approved by the adverse party and the court. App.R. 9(C). Alternatively, the parties may prepare an agreed statement of the record for the trial court s approval. {¶4} App.R. 9(D). The record indicates that on July 31, 2003, when he objected to the magistrate s decision, Reynolds requested a transcript However, the of the proceedings record contains before no 3 magistrate. the transcript proceedings or any substitute for a transcript. of those The summary of docket and journal entries prepared by the clerk bears an entry stating that, also on July 31, Notified by Phone About Transcript. 2003, Attorney The meaning of that entry is unexplained. {¶5} Absent a transcript or other record of the evidence before the magistrate, we cannot determine whether the trial court decision. the when it adopted the magistrate s Therefore, we can only presume the validity of trial assigned. erred court s proceedings and overrule the error Knapp v. Edwards Laboratories (1980), 60 Ohio St.2d 197. {¶6} The assignment of error is overruled. judgment of the trial court will be affirmed. FAIN, P.J. and WOLFF, J., concur. Copies mailed to: Tom and Amy Ott Rebecca Barthelemy-Smith, Esq. Hon. Thomas M. Hanna The
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