[Cite as Evans v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-6839.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
William H. Evans, Jr., :
No. 19AP-634
Plaintiff-Appellant, : (Ct. of Cl. No. 2014-732JD)
v. :
(REGULAR CALENDAR)
Ohio Department of Rehabilitation :
and Correction,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on December 22, 2020
On brief: William H. Evans, Jr., pro se.
On brief: Dave Yost, Attorney General, and Christopher P.
Conomy, for appellee.
APPEAL from the Court of Claims of Ohio
BROWN, J.
{¶ 1} This is an appeal by plaintiff-appellant, William H. Evans, Jr., from a
judgment of the Court of Claims of Ohio overruling his objections to a magistrate's decision
and rendering judgment in favor of defendant-appellee, Ohio Department of Rehabilitation
and Correction ("ODRC"), on appellant's claim for negligence following a bench trial before
a magistrate.
{¶ 2} On August 29, 2014, appellant, an inmate at the Ross Correctional Institution
("RCI"), filed a complaint against ODRC for negligence. The complaint alleged that in
August 2014, appellant was eating lunch at RCI when he bit into a foreign object in his food.
No. 19AP-634 2
Appellant took the object to his cell and, upon further examination, concluded it appeared
to be part of a rodent.
{¶ 3} On April 20, 2015, the Court of Claims dismissed the complaint for failure to
state a claim on which relief could be granted. Following an appeal, this court reversed the
judgment of the Court of Claims, finding that it erred in dismissing the complaint under
Civ.R. 12(B)(6). See Evans v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 15AP-463, 2015-
Ohio-3492 ("Evans I").
{¶ 4} Following this court's remand, the matter was stayed at appellant's request
after he filed with this court an action in mandamus and prohibition against a judge of the
Court of Claims. See State ex rel. Evans v. McGrath, 10th Dist. No. 17AP-40, 2017-Ohio-
7418 ("Evans II"). Appellant's original action against the judge was unsuccessful as the
Supreme Court of Ohio ultimately affirmed this court's decision dismissing appellant's
complaint in mandamus and prohibition. See State ex rel. Evans v. McGrath, 153 Ohio
St.3d 287, 2018-Ohio-3018 ("Evans III").
{¶ 5} On June 6, 2019, a magistrate of the Court of Claims conducted a bench trial.
While the record on appeal does not include a trial transcript, the following factual findings
are set forth in the magistrate's decision. At trial, appellant "testified that sometime in
2014, he was in the dining hall at RCI eating the lunch meal with four other inmates."
Appellant "stated that the meal was a noodle casserole with peas, carrots, beef, and either
turkey or chicken." Appellant "recalled that he took a bite, felt something that seemed like
gristle, removed it from his mouth, and set it on the food tray." Appellant "acknowledged
that he did not swallow the object, but he was unsure whether he unknowingly consumed
other unknown objects." (Mag. Decision at 1.)
{¶ 6} Appellant "took the object back to his cell where he washed it." (Mag.
Decision at 1.) Appellant "did not report to any corrections officer that he discovered an
object in his meal." (Mag. Decision at 1-2.) According to appellant, "the object seemed to
have an esophagus or some unknown body part; however, on cross-examination,
[appellant] conceded that he does not know what the object was." Appellant "never sought
medical attention regarding this incident." No other witnesses testified at trial "and no
other evidence was submitted for decision." (Mag. Decision at 2.)
No. 19AP-634 3
{¶ 7} On July 17, 2019, the magistrate issued a decision recommending judgment
be entered in favor of ODRC based on a determination that appellant failed to prove his
claim by a preponderance of the evidence. The decision of the magistrate included the
following conclusions of law:
While the magistrate has no reason to doubt that plaintiff
discovered an object in his food, plaintiff failed to establish that
the object was foreign to the meal he was consuming. Given the
evidence, it is equally likely that the object was indeed part of
the noodles, peas, carrots, beef, chicken, or turkey. In short,
there is no credible evidence identifying the object plaintiff
found in his meal. Additionally, plaintiff failed to establish how
the object ultimately was placed in his meal. The magistrate can
only speculate as to how the object ended up in plaintiff's meal.
Furthermore, there is no evidence of actual damages resulting
from finding an object in his food; indeed, plaintiff never
sought medical care for any injury following this event.
Likewise, plaintiff did not report ever being injured as a result
of this event.
(Mag. Decision at 2.)
{¶ 8} On July 26, 2019, appellant filed pro se objections to the magistrate's
decision. On September 3, 2019, the Court of Claims issued a decision overruling
appellant's objections and adopting the magistrate's decision and recommendation.
{¶ 9} On appeal, appellant, pro se, sets forth the following five assignments of error
for this court's review:
[I.] Did the trial court err and violate due process by failing to
accept the properly filed affidavit in lieu of transcript?
[II.] Did the trial court err in sustaining objection, and striking,
public records information presented in trial?
[III.] Did the trial court err in considering defendants
arguments where they failed to file a pretrial statement, or err
in failing to consider two post-trial documents, or in failing to
order a new trial?
[IV.] Did the trial court err in holding inmates statements as
hearsay and inadmissible?
[V.] Did the trial court err in failing to apply res judicata and
law of the case doctrines barring defendants arguments?
No. 19AP-634 4
{¶ 10} Under his first assignment of error, appellant asserts the Court of Claims
erred in failing to accept his post-trial affidavit in lieu of a transcript in support of his
objections to the magistrate's decision. Appellant argues the Court of Claims erred in
"mandating a heightened requirement" that he explain why the transcript was unavailable.
(Appellant's Brief at 1.)
{¶ 11} By way of background, appellant did not file a transcript in support of his
objections to the magistrate's decision. Rather, on July 26, 2019, appellant filed pro se
"Objections to Magistrate's Decision via Affidavit," and also filed a "Statement & Affidavit
of Evidence" on August 1, 2019.
{¶ 12} The Court of Claims, in addressing the lack of a transcript, cited Ohio case
law for the proposition that Civ.R. 53 does not permit an objecting party the option of filing
an affidavit in lieu of a transcript under circumstances where the transcript is available.
Noting that appellant offered "no explanation as to why he did not provide a transcript,"
the Court of Claims concluded it could not consider appellant's affidavit of evidence, and
the court therefore accepted the magistrate's factual findings as true and limited its
consideration of appellant's objections to a review of the magistrate's legal conclusions.
(Decision at 3.)
{¶ 13} Civ.R. 53(D)(3)(b)(iii) states in part: "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."
{¶ 14} Under Ohio law, "[a]n affidavit of the evidence can only be used where a
transcript is unavailable." Lamp v. Linton, 5th Dist. No. 2011-CA-06, 2011-Ohio-6111, ¶ 35.
Thus, "[w]here a transcript can be produced, it is available for purposes of the rule and must
be submitted in support of the objections." Id. See also Gladden v. Grafton Corr. Inst.,
10th Dist. No. 05AP-567, 2005-Ohio-6476, ¶ 7 ("Where a transcript can be produced, the
transcript is available and must be provided to the trial court in support of objections to a
magistrate's decision.").
{¶ 15} Further, Ohio courts have interpreted Civ.R. 53 " 'to mean that a party may
support its objections with an affidavit in lieu of a transcript only when the party
demonstrates that a transcript is not available, and if the affidavit describes all the relevant
No. 19AP-634 5
evidence presented at the hearing, not just the evidence that the objecting party feels is
significant.' " Levine v. Brown, 8th Dist. No. 92862, 2009-Ohio-5012, ¶ 18, quoting In re
E.B., 8th Dist. No. 85035, 2005-Ohio-401, ¶ 11. See also Welch v. Prompt Recovery Servs.,
9th Dist. No. 27175, 2015-Ohio-3867, ¶ 10 ("An affidavit offered in lieu of a transcript under
Civ.R. 53 must certify that the transcript was unavailable, and it must describe all relevant
evidence presented to the magistrate."). This court has similarly held that a trial court does
not err in failing to consider an affidavit filed with objections where the record "does not
show that [the appellant] argued or asserted prior to the trial court's ruling on her
objections that the transcript was 'not available' as is required by Civ.R. 53(D)(3)(b)(iii)."
JPMorgan Chase Bank, N.A. v. Liggins, 10th Dist. No. 15AP-242, 2016-Ohio-3528, ¶ 10.
{¶ 16} Appellant argues on appeal that a transcript was unavailable to him because,
as an inmate, he "cannot afford costs at his meager $10.00 per month." (Appellant's Brief
at 1.) However, a review of the documents submitted by appellant at the time of his
objections supports the Court of Claims' determination that appellant offered "no
explanation" as to why a transcript was unavailable. (Decision at 3.) Further, even
assuming appellant had argued before the Court of Claims that a transcript was unavailable
because he could not afford the cost, the affidavit(s) of evidence submitted by appellant
would be insufficient under Civ.R. 53.
{¶ 17} As indicated above, "[a]n affidavit under Civ.R. 53(D)(3)(b)(iii) must contain
a description of all the relevant evidence, not just the evidence deemed relevant by the party
objecting to the magistrate's findings." Lamp at ¶ 36, citing Gill v. Grafton Corr. Inst., 10th
Dist. No. 09AP-1019, 2010-Ohio-2977, ¶ 23 (Sadler, J., dissenting), quoting Levine at ¶ 18.
See also State Farm Mut. Auto. Ins. Co. v. Fox, 182 Ohio App.3d 17, 2009-Ohio-1965, ¶ 17
(2d Dist.), quoting Galewood v. Terry Lumber Supply Co., 9th Dist. No. 20770, 2002-
Ohio-947 (Plaintiff's affidavit "presented only that evidence on which it relied at the
hearing, but the rule requires that 'the affidavit describe all the relevant evidence presented
at the hearing and not just the evidence that the party feels is significant.' ").
{¶ 18} In the present case, the affidavit(s) of evidence presented by appellant
consisted primarily of argument, as well as "only * * * facts supporting [his] own arguments,
instead of 'all the evidence submitted to the magistrate relevant to' " his objections. Welch
at ¶ 10, quoting Civ.R. 53(D). See also Gumins v. Ohio Dept. of Rehab. & Corr., 10th Dist.
No. 19AP-634 6
No. 10AP-941, 2011-Ohio-3314, ¶ 13 (rejecting appellant's proffered statement as
insufficient under Civ.R. 53(D)(3)(b)(iii) as a comparison of such statement with
magistrate's factual findings "indicates that appellant's statement omits certain evidence").
{¶ 19} Upon review, where appellant failed to assert prior to the ruling on objections
that a transcript was not available, and where the affidavit(s) offered by appellant in
support of his objections were insufficient under Civ.R. 53(D)(3)(b)(iii), we find no error by
the Court of Claims in failing to consider the affidavit(s) in lieu of transcript. Appellant's
first assignment of error is not well-taken and is overruled.
{¶ 20} Appellant's second and fourth assignments of error will be addressed jointly
as they both raise challenges to evidentiary rulings by the magistrate. Under his second
assignment of error, appellant argues the magistrate erred in excluding at trial "[p]ublic
records" of other lawsuits involving Aramark, the company providing food service at RCI.
(Appellant's Brief at 2.) Under his fourth assignment of error, appellant contends the
magistrate erred in failing to admit several written inmate statements which, according to
appellant, the magistrate ruled inadmissible on hearsay grounds.
{¶ 21} In addressing these objections, the Court of Claims held that absent a trial
transcript, it was unable to determine whether appellant "proffered the excluded evidence
or if the nature of the evidence was clear from the context." (Decision at 5.) The Court of
Claims further held that even assuming appellant proffered the excluded evidence, "the lack
of a transcript means the court cannot review the evidence itself or the nature and context
of the magistrate's rulings on the admissibility of the evidence." (Decision at 6.) On review,
we find no error in these determinations.
{¶ 22} In the absence of a transcript or a properly filed affidavit of the evidence in
support of a party's objections, a trial court is " 'required to accept the magistrate's findings
of fact and examine only the legal conclusions based on those facts.' " DAK, PLL v.
Borgerding, 10th Dist. No. 02AP-1051, 2003-Ohio-3342, ¶ 9, quoting Galewood. See also
Magar v. Konyves, 8th Dist. No. 85832, 2005-Ohio-5723, ¶ 15, citing Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197 (1980) ("Absent a transcript, the trial court and this court
must presume regularity in the proceedings on any finding of fact made by the
magistrate."). Further, " 'when a party objecting to a [magistrate's decision] has failed to
provide the trial court with the evidence and documents by which the court could make a
No. 19AP-634 7
finding independent of the [decision], appellate review of the court's findings is limited to
whether the trial court abused its discretion in adopting the [magistrate's decision].' "
Moore v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 05AP-53, 2005-Ohio-3939, ¶ 12,
quoting State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730 (1995).
{¶ 23} In a similar vein, "[t]he failure to file a trial transcript or its equivalent is
generally fatal to an appeal based on the admission or exclusion of evidence." State v.
Kempton, 4th Dist. No. 15CA3489, 2016-Ohio-1183, ¶ 8. See also Cargile v. Ohio Dept. of
Admin. Servs., 10th Dist. No. 11AP-743, 2012-Ohio-2470, ¶ 15 ("[w]ithout a transcript to
provide us context, we cannot review either the proffered evidence or the magistrate's
rulings on the admissibility of that evidence"); Wilson v. Palsa, 5th Dist. No. 97-CA-101
(Oct. 29, 1998) (in the absence of a transcript, reviewing court cannot resolve alleged errors
regarding "evidentiary rulings" and therefore "we * * * must presume validity" in the trial
court's proceedings).
{¶ 24} As noted by the Court of Claims, the record is silent as to whether appellant
made a proffer of evidence of prior lawsuits against the food service provider that he claims
the magistrate erroneously excluded at trial. Further, even accepting that a proffer was
made, in the absence of a transcript or other proper alternative, we must "presume
regularity and conclude that the trial court did not err" in overruling appellant's objection
as to the magistrate's evidentiary ruling excluding this evidence. Cargile at ¶ 15. With
respect to appellant's claim the magistrate erred in excluding, as inadmissible hearsay,
certain written inmate statements, we note that appellant acknowledges the statements
were unsworn but nevertheless contends ODRC "failed to ever once claim that the
inmates['] statements were untrue." (Appellant's Brief at 4.) Again, however, in the
absence of a transcript, the Court of Claims was unable to properly review the magistrate's
ruling on the admissibility of those statements, and we find no error by the Court of Claims
in overruling the objection to this evidentiary ruling. See, e.g., White v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 12AP-927, 2013-Ohio-4208, ¶ 14 (without a transcript, trial
court could not have analyzed any of the magistrate's evidentiary rulings).
{¶ 25} Appellant's second and fourth assignments of error are not well-taken and
are overruled.
No. 19AP-634 8
{¶ 26} Under his third assignment of error, appellant asserts the Court of Claims
erred in entertaining ODRC's arguments at trial because ODRC failed to file a pretrial
statement. In his objection before the Court of Claims on this issue, appellant argued ODRC
was required to file a pretrial statement under the court's local rule, and that ODRC's failure
to do so put him at an unfair disadvantage as he was unaware of the arguments and any
evidentiary issues ODRC might raise at trial.
{¶ 27} In addressing this objection, the Court of Claims, citing the magistrate's
finding that appellant's testimony "was the only evidence presented at trial," determined
the magistrate did not base his decision on argument or evidence presented by ODRC but,
rather, on the ground that appellant "failed to prove all elements of negligence by a
preponderance of the evidence." In this respect, the Court of Claims held that "ODRC's
failure to file a pretrial statement did not relieve [appellant] of the burden of proving his
claim." (Decision at 8.) Finally, citing the court's own latitude in enforcing its local rules
and the fact ODRC "did not call any witnesses or introduce other evidence at trial," the
Court of Claims concluded the magistrate did not err in considering arguments by ODRC
despite its failure to file a pretrial statement. (Decision at 9.)
{¶ 28} On review, we find no abuse of discretion by the Court of Claims in overruling
this objection. In general, a trial court has "discretion when determining whether sanctions
are appropriate for the transgression of local rules regarding pretrial procedure." Fidelity
& Guar. Ins. Underwriters v. Aetna Casualty & Sur. Co., 6th Dist. No. L-92-024 (June 30,
1993), citing Pang v. Minch, 53 Ohio St.3d 186, 194 (1990). Thus, "decisions of a trial court
regarding pretrial matters will not be reversed absent an abuse of discretion." Compston
v. Automanage, Inc., 79 Ohio App.3d 359, 367 (12th Dist.1992). This discretion similarly
applies with respect to local rules of a trial court. Pang at 194 (local rule "vested in the trial
court the authority to determine whether compliance therewith had been accomplished,
and such determination will not be reversed on appeal absent an abuse of discretion").
{¶ 29} Local Court of Claims Rule ("L.C.C.R.") 8, which governs pretrial procedures
(including pretrial statements under L.C.C.R. 8(B)), affords the Court of Claims such
discretion. Specifically, L.C.C.R. 8(F) addresses the failure to comply with pretrial
procedures, and states: "The sanctions stated in Civil Rule 37(B)(1) may be assessed for
failure to timely comply with this rule." (Emphasis added.)
No. 19AP-634 9
{¶ 30} Appellant argues that the purpose of a pretrial statement is to avoid surprise,
so the opposing party has the benefit of knowing what evidentiary issues such party intends
to rely on at trial. As alluded to by the Court of Claims, however, ODRC's failure to file a
pretrial statement did not deprive appellant of discovery information regarding witnesses
or exhibits as the record indicates, pursuant to the magistrate's report "[n]o other
witnesses" were called to testify "and no other evidence was submitted." (Mag. Decision at
2.) As further noted by the Court of Claims, the magistrate found appellant failed to prove
the elements of negligence by a preponderance of the evidence, and ODRC's failure to file a
pretrial statement did not relieve appellant of the burden to prove his claim. Finally, as set
forth above, nothing in the local rules required the Court of Claims to preclude ODRC from
presenting arguments at trial (or to impose any particular sanction) based on the failure to
comply with a pretrial procedure.
{¶ 31} Accordingly, we find no error by the Court of Claims in its determination that
the magistrate was not required to bar ODRC from presenting arguments at trial.
Appellant's third assignment of error is not well-taken and is overruled.
{¶ 32} Under the fifth assignment of error, appellant contends the Court of Claims
erred in refusing to accept his res judicata argument. Appellant's argument is premised
upon his interpretation of this court's prior decision (Evans I) in which we reversed the
Court of Claims' dismissal for failure to state a claim. Specifically, in his objections to the
magistrate's decision, appellant argued that a dismissal for failure to state a claim for relief
constituted a judgment on the merits subject to issue preclusion, and therefore ODRC
should have been barred from raising arguments during the bench trial regarding whether
the object in appellant's food was a foreign object and whether ODRC (as opposed to the
food service provider) was responsible for the object in the food.
{¶ 33} Appellant's res judicata argument is not persuasive, as it is based on a
misunderstanding of that doctrine and this court's prior decision. In Evans I, this court
held that appellant's complaint sufficiently alleged harm such that dismissal of the
complaint was not warranted "especially at this early stage of the proceedings." Evans I at
¶ 12. This court's decision, however, did not address the merits of appellant's case.
{¶ 34} Such fact was noted by this court in addressing and dismissing appellant's
ancillary action in mandamus and prohibition in which he sought an order that the Court
No. 19AP-634 10
of Claims was barred from conducting any further proceedings following this court's
remand in Evans I because, according to appellant, this court determined appellant had
established liability for negligence as a matter of law, leaving only the issue of damages. In
Evans II, this court rejected appellant's argument that the issue of liability had been
determined in Evans I. Specifically, while noting, for purposes of a motion to dismiss, that
we must "assume what he says is true and then see if what he says could be the basis for a
complaint in negligence," this court made clear that such assumption of truth is "solely for
the purpose of evaluating the complaint [and] is not a finding of fact in any way." Evans II
at ¶ 3. Rather, we observed, "[o]ur mandate following his first appeal was only to develop
some facts and then address the merits of Evans' claim that he was hurt as a result of
governmental negligence." Id.
{¶ 35} In subsequently affirming this court's decision dismissing appellant's action
for mandamus/prohibition, the Supreme Court similarly rejected res judicata and law of
the case arguments raised by appellant, noting that this court's decision in Evans I "held
only that Evans's complaint sufficiently alleged the elements of a negligence claim and
could withstand a motion to dismiss under Civ.R. 12(B)(6)" but "did not, as Evans contends,
determine that Evans had proved negligence such that Judge McGrath was required to hold
a damages-only hearing." (Emphasis sic.) Evans III at ¶ 5.
{¶ 36} In general, "[u]nder the doctrine of res judicata, '[a] valid, final judgment
rendered upon the merits bars all subsequent actions based upon any claim arising out of
the transaction or occurrence that was the subject matter of the previous action.' " State ex
rel. Denton v. Bedinghaus, 98 Ohio St.3d 298, 2003-Ohio-861, ¶ 14, quoting Grava v.
Parkman Twp., 73 Ohio St.3d 379 (1995), syllabus.
{¶ 37} In the instant action, in his objection before the Court of Claims, appellant
cited case law for the general proposition that a dismissal for failure to state a claim is a
judgment on the merits. As noted by the Court of Claims, however, "the appellate court
reversed" the dismissal for failure to state a claim and, "[a]s a result, there was no final
judgment upon the merits in this case prior to trial." (Decision at 10.)
{¶ 38} We agree with the Court of Claims that, under such circumstances, the
doctrine of res judicata is not applicable. See, e.g., Stanton v. Bd. of Trustees of the Ohio
State Univ., 10th Dist. No. 79AP-462 (Nov. 1, 1979) (noting that doctrine of res judicata
No. 19AP-634 11
would not apply where "there has been no final determination on the merits in the first
cause since its dismissal was reversed and remanded for further proceedings"); Faymore
v. Thomas, 9th Dist. No. 95CA006054 (Oct. 25, 1995) (dismissal of prior action cannot be
the basis of a res judicata bar to the plaintiffs' action "because that order was reversed and
remanded" by appellate court and case had not been adjudicated on the merits); United
States v. Maull, 855 F.2d 514, 516 (8th Cir.1988) , fn. 3 (interpreting federal law and noting
"it is well-established that a Rule 12 (b)(6) dismissal is a 'judgment on the merits' for res
judicata purposes unless * * * the dismissal is reversed on appeal") (Emphasis added.).
{¶ 39} Finding no error by the Court of Claims in its disposition of this objection,
appellant's fifth assignment of error is overruled.
{¶ 40} Based on the foregoing, appellant's five assignments of error are overruled,
and the judgment of the Court of Claims of Ohio is hereby affirmed.
Judgment affirmed.
SADLER, P.J., and LUPER SCHUSTER, J., concur.
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