[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 : OPINION
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.