Norton v. Dominion Energy Servs., Inc.

[Cite as Norton v. Dominion Energy Servs., Inc., 2021-Ohio-1278.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

BARBARA NORTON C.A. No. 29543

Appellant

v. APPEAL FROM JUDGMENT
ENTERED IN THE
DOMINION ENERGY SERVICES, INC. BARBERTON MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CVI 1900500

DECISION AND JOURNAL ENTRY

Dated: April 14, 2021

TEODOSIO, Judge.

{¶1} Plaintiff-Appellant, Barbara Norton, appeals from the judgment of the Barberton

Municipal Court in favor of Defendant-Appellee, Dominion Energy Services, Inc. (“Dominion”).

This Court affirms.

I.

{¶2} Ms. Norton had a custom home built in 2016. As part of the construction process,

a contractor for Dominion placed a natural gas connection line on her property. The connection

line was fitted with a vertical pipe that ended in an above ground gas cap. Because Ms. Norton’s

yard had yet to be graded when the line was installed, the gas cap protruded several inches from

the ground. The landscaper who later installed Ms. Norton’s lawn graded the area surrounding the

pipe to make the gas cap level with the ground.

{¶3} About two years after her landscaper graded the area surrounding the gas cap, Ms.

Norton struck the cap with her lawnmower. The cap dislodged from the pipe, ejected through her
 2

lawnmower, and hit her garage door with enough force to dent a door panel. As a result of the

property damage she sustained, Ms. Norton filed a negligence claim against Dominion in small

claims court. She alleged that her property was damaged because Dominion failed to properly

install her gas connection line and/or gas cap.

{¶4} A trial was held before a magistrate, and the magistrate found in favor of Dominion.

Unbeknownst to anyone at the time of trial, the court’s audio-recording system failed and did not

record the trial. Thus, Ms. Norton was unable to secure a transcript of the proceedings. She filed

objections to the magistrate’s decision and, in lieu of a transcript, supported her objections with an

affidavit of the testimony and evidence. Dominion then filed a response to her objections. Upon

review of their filings and the record, the trial court overruled Ms. Norton’s objections and entered

judgment in favor of Dominion. Ms. Norton moved the court to reconsider its decision, but the

court denied her motion.

{¶5} Ms. Norton filed a notice of appeal and indicated in her docketing statement that

the record would include a statement of the evidence or proceedings pursuant to App.R. 9(C). She

also filed with the trial court a proposed statement of the evidence and served her proposed

statement on Dominion. Dominion responded with objections and proposed amendments to Ms.

Norton’s statement. It filed its response in both the trial court and this Court, and, thereafter, Ms.

Norton also filed items in both courts. Numerous motions, responses, and replies were filed, the

majority of which concerned the settlement and approval of an App.R. 9(C) statement. The parties

disagreed as to exactly what evidence and testimony had been presented at the trial, and Ms. Norton

asked to introduce additional evidence in support of her claim. Relying primarily on the

magistrate’s recollection of the trial, the trial court ultimately issued an order, settling and

approving a statement of the evidence.
 3

{¶6} Ms. Norton now appeals from the trial court’s judgment in favor of Dominion and

raises ten assignments of error for our review. To facilitate our analysis, we rearrange and

consolidate several of her assignments of error.

II.

General Standard of Review

{¶7} This Court generally reviews a trial court’s action regarding a magistrate’s decision

for an abuse of discretion. Fields v. Cloyd, 9th Dist. Summit No. 24150, 2008-Ohio-5232, ¶ 9.

“In so doing, we consider the trial court’s action with reference to the nature of the underlying

matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, ¶ 18.

ASSIGNMENT OF ERROR III

THE TRIAL COURT DENIED NORTON DUE PROCESS BY PLAIN ERROR
WHEN IT FAILED TO RECORD THE HEARING HELD BEFORE THE
MAGISTRATE.

{¶8} In her third assignment of error, Ms. Norton argues that the trial court committed

plain error and violated her due process rights when it failed to record her trial before the

magistrate. We disagree.

{¶9} When the issue presented for appellate review presents purely a question of law,

this Court employs a de novo standard of review. Lucas v. Ford Motor Co., 9th Dist. Summit No.

28622, 2018-Ohio-3765, ¶ 16. “To establish plain error, one must show (1) an error occurred, i.e.,

a deviation from a legal rule, (2) the error is plain, i.e., an obvious defect in the proceedings, and

(3) the error affected a substantial right, i.e., affected the outcome of the proceedings.” State v.

Grant, 9th Dist. Summit No. 29259, 2019-Ohio-3561, ¶ 5, citing State v. Morgan, 153 Ohio St.3d

196, 2017-Ohio-7565, ¶ 36. Notice of plain error “is to be taken with the utmost caution, under
 4

exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,

53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

{¶10} It is undisputed that Ms. Norton’s trial before the magistrate was not recorded.

Because her trial was not recorded, Ms. Norton argues, the trial court was unable to independently

review the evidence presented therein and essentially granted the judicial power to hear her case

directly to the magistrate. She argues that trials before magistrates must be recorded and that the

trial court plainly erred when it failed to record hers.

{¶11} In general, “all proceedings before a magistrate shall be recorded in accordance

with procedures established by the court.” Civ.R. 53(D)(7). Yet, both the Ohio Rules of Civil

Procedure and Rules of Appellate Procedure allow for the possibility that a party will not be able

to obtain a recording or transcript of the proceedings. See Civ.R. 53(D)(3)(b)(iii) (authorizing an

affidavit of evidence to be filed in support of objections to a magistrate’s decision “if a transcript

is not available”); App.R. 9(C) (providing for preparation of statement of the evidence when a

recording of the proceedings or transcript is unavailable). Ms. Norton acknowledges that her trial

was not recorded “due to [an] audio system failure.” The lower court, therefore, did not simply

refuse to record the proceedings. Further, the record reflects that the court considered Ms. Norton’s

affidavit in lieu of a transcript, see Civ.R. 53(D)(3)(b)(iii), and issued an order settling and

approving a statement of the evidence for purposes of her appeal, see App.R. 9(C). Even if an

error occurred, Ms. Norton has not shown that the error affected her substantial rights. See Grant

at ¶ 5. Accordingly, her third assignment of error is overruled.

ASSIGNMENT OF ERROR V

IT WAS PLAIN ERROR FOR THE TRIAL COURT TO DETERMINE THE
FACTS WITHOUT A RECORD FROM WHICH TO DETERMINE ACCURACY
AND FAIL TO CREATE ONE BY ORDERING THE PARTIES TO SUBMIT
PROPOSED FINDINGS OR CREATE A 9C STATEMENT.
 5

ASSIGNMENT OF ERROR VI

SINCE THE TRIAL COURT ORDERED SUPPLEMENTAL PLEADINGS, IT
WAS ABUSE OF DISCRETION TO NOT ALLOW PLEADINGS RELATING
TO ISSUES PRESENTED AT THE HEARING TO ASSIST IN RESOLVING
THE CASE ON ITS MERITS.

{¶12} In her fifth assignment of error, Ms. Norton argues that the trial court erred when,

prior to entering judgment on the magistrate’s decision, it failed to either (1) order the parties to

submit an agreed upon statement of the evidence, or (2) settle and approve an App.R. 9(C)

statement. In her sixth assignment of error, she argues that the court erred by not allowing her to

present additional evidence in support of her objections to the magistrate’s decision. We reject

both propositions.

{¶13} Civ.R. 53 governs magistrate’s decisions, objections to a magistrate’s decision, and

the trial court’s entry of judgment upon objections to a magistrate’s decision. See Civ.R. 53(D)(3),

(4). If a party wishes to object to a magistrate’s factual finding, her objections “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.” Civ.R. 53(D)(3)(b)(iii). Additionally, “[w]ith

leave of court, alternative technology or manner of reviewing the relevant evidence may be

considered.” Id. A trial court will rule upon any objections to a magistrate’s decision by

“undertak[ing] an independent review as to the objected matters to ascertain that the magistrate

has properly determined the factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d).

Though the court may hear additional evidence before ruling on objections, it “may refuse to do

so unless the objecting party demonstrates that [she] could not, with reasonable diligence, have

produced that evidence for consideration by the magistrate.” Id.

{¶14} Because Ms. Norton was unable to procure a trial transcript, she attached an

affidavit of the evidence to her objections to the magistrate’s decision. She also filed a supplement
 6

to her objections that included additional evidence and affidavits that had not been presented at

trial. Dominion responded in opposition to her objections and moved to strike her supplement to

her objections. Ms. Norton then filed a reply and opposed Dominion’s motion to strike. Upon its

review of the filings and the record, the trial court overruled Ms. Norton’s objections.

{¶15} According to Ms. Norton, the trial court erred when it ruled on her objections

without first (1) having the parties complete an agreed upon statement of the evidence, or (2)

approving an App.R. 9(C) statement. Had the court done so, she argues, the trial would have been

fresh in everyone’s minds, and the court could have retaken any missing testimony. She claims

that she omitted certain details about the testimony of her contractor in her affidavit because the

contractor completed his own affidavit and she attached it to her supplement to her objections.

Ms. Norton notes that the trial court refused to consider her contractor’s affidavit because it

construed the affidavit as inadmissible new evidence. Additionally, the court refused to consider

affidavits from two of her neighbors and information about when Ms. Norton took certain

photographs. Ms. Norton argues that her additional evidence should have been considered “[i]n

the pursuit of justice.”

{¶16} Ms. Norton has failed to set forth any law to establish that the trial court erred by

not requiring the parties to complete an agreed upon statement of the evidence or finalizing an

App.R. 9(C) statement before ruling on her objections to the magistrate’s decision. See App.R.

16(A)(7). Civ.R. 53 expressly outlines the procedure to be followed when a party files written

objections to a magistrate’s decision. Ms. Norton submitted an affidavit along with her objections,

and the trial court considered her affidavit in its judgment on those objections. She never moved

the court, pursuant to Civ.R. 53(D)(3)(b)(iii), to consider an alternative manner of reviewing the

evidence. Thus, the court adhered to the procedure set forth in Civ.R. 53 in ruling on her
 7

objections. See Civ.R. 53(D)(3)(b)(iii) and (D)(4)(d). See also App.R. 9(C)(2) (in cases initially

heard by a magistrate, an appellant may contest a factual finding only if the record contains a

transcript or affidavit previously filed in accordance with Civ.R. 53(D)(3)(b)(iii)).

{¶17} To the extent the trial court refused to hear additional evidence in support of Ms.

Norton’s objections, it was only required to do so if she showed that she “could not, with

reasonable diligence, have produced that evidence for consideration by the magistrate.” Civ.R.

53(D)(4)(d). Ms. Norton’s contractor testified at trial, and she had the ability to question him at

that time. She also had the ability to subpoena her neighbors to testify; she simply chose not to do

so. Ms. Norton failed to demonstrate that she could not, with reasonable diligence, have produced

her additional evidence at trial. See id. As such, the trial court was not required to consider it.

Ms. Norton’s fifth and sixth assignments of error are overruled.

ASSIGNMENT OF ERROR VIII

THE TRIAL COURT ERRED AS A MATTER OF LAW AND/OR PLAIN
ERROR IN PREMATURELY FILING THE RECORD.

{¶18} In her eighth assignment of error, Ms. Norton argues that the trial court erred when

it prematurely filed the record in this matter and caused her to file certain objections in the appellate

court rather than the trial court. For the following reasons, this Court rejects her argument.

{¶19} The record on appeal “shall be transmitted to the clerk of the court of appeals when

the record is complete for the purposes of appeal * * *.” App.R. 10(A). App.R. 10(B) provides

several alternatives for the record to be deemed complete. As it relates to this case, the rule

provides that the record is deemed complete when a statement of the evidence or proceedings

pursuant to App.R. 9(C) has been “settled and approved by the trial court[] and filed with the clerk

of the trial court.” App.R. 10(B)(2). At that time, the clerk of the trial court shall prepare the

record and transmit it to the clerk of the court of appeals. App.R. 10(B).
 8

{¶20} When Ms. Norton filed her notice of appeal and docketing statement, she indicated

that the record would include an App.R. 9(C) statement. She then filed a proposed statement of

evidence in the trial court. A few days after she did so, the clerk of the trial court transmitted the

record to the clerk of the court of appeals, and the appellate clerk notified the parties that the record

had been filed. This Court ultimately struck the notice of filing as premature and extended the

time for the record, including an App.R. 9(C) statement, to be filed.

{¶21} Ms. Norton asserts that the trial court erred when it prematurely transmitted the

record to the clerk of the court of appeals. She notes that, after the appellate clerk notified the

parties that the record had been filed, Dominion filed its objections and proposed amendments to

her proposed App.R. 9(C) statement in both the trial court and this Court. According to Ms.

Norton, an employee with the clerk’s office told her that any future pleadings had to be filed in the

appellate court, as the record had already been transferred. She, therefore, only filed her rebuttal

to Dominion’s objections and proposed amendments in this Court. Nine days later, after this Court

struck her filing, she filed her rebuttal in the trial court. A portion of her rebuttal challenged

Dominion’s objections and amendments on the basis that they were untimely. See App.R. 9(C)(1)

(requiring an appellee to serve any objections or proposed amendments within ten days after

service of the appellant’s proposed statement). The trial court refused to consider that portion of

her argument, however, finding that she had waived it by not “object[ing] at or near the time of

[Dominion’s] filing * * *.” Ms. Norton asserts that the trial court’s error in prematurely filing the

record caused the delay in her filing her rebuttal with the trial court.

{¶22} As previously noted, it is the duty of the clerk of the trial court, not the trial court

itself, to prepare and transmit the trial court record to the clerk of the appellate court. See App.R.

10(B). Even assuming Ms. Norton’s argument is properly before us, however, she has not shown
 9

that the premature filing of the record affected her substantial rights. See Civ.R. 61. First, there

was nothing to prevent her from filing her rebuttal in both the trial court and the appellate court,

as Dominion had done when filing its objection. She chose to file her rebuttal strictly in this Court.

Only after this Court struck her filing did she file her rebuttal in the trial court. While we are not

unsympathetic to her claim that someone at the clerk’s office gave her inaccurate information,

“ignorance of the law is no excuse.” In re Adoption of Jedel, 9th Dist. Medina No. 1624, 1988

WL 5952, *3 (Jan. 20, 1988). Ms. Norton always had the ability to file her rebuttal in the lower

court.

{¶23} Second, the record reflects that the settlement and approval of the App.R. 9(C)

statement in this matter was a highly contested affair. Ms. Norton filed numerous motions,

objections, proposed amendments, and requests for clarification, and Dominion responded with

briefs in opposition, motions to strike, and other oppositional filings. Dominion’s initial objection

was but one of many filings that the trial court ultimately considered in its approval of an App.R.

9(C) statement. Moreover, even if the court had refused to consider Dominion’s initial objection,

Ms. Norton has not explained why that would have precluded Dominion from seeking relief under

App.R. 9(E). See App.R. 9(E) (providing for the correction and modification of the record when

it contains material omissions or misstatements). Upon review, Ms. Norton has not shown that

she sustained prejudice as a result of the premature filing of the record. See Civ.R. 61. As such,

her eighth assignment of error is overruled.

ASSIGNMENT OF ERROR X

IT WAS PLAIN ERROR AND/OR ABUSE OF DISCRETION FOR THE TRIAL
COURT TO NOT RECOGNIZE ITS ORDER DATED 12/6/19 DID NOT
CONSTITUTE A 9C STATEMENT AND DENY NORTON’S MOTIONS
ADDRESSING OMISSIONS AND MISSTATEMENTS.
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{¶24} In her tenth assignment of error, Ms. Norton argues that the trial court erred when

it treated its December 6, 2019 order as a settled and approved App.R. 9(C) statement and, on that

basis, denied several of the motions she filed after that date. For the following reasons, this Court

rejects her argument.

{¶25} If a trial transcript is unavailable, an appellant may prepare a statement of the

evidence “from the best available means, including the appellant’s recollection” and serve that

statement upon the appellee. App.R. 9(C)(1). The appellee may object or propose amendments

to that statement and serve those objections and/or amendments upon the appellant. Id. The

statement, objections, and any amendments then will be submitted to the trial court, and the trial

court will settle and approve a statement of the evidence for filing. Id. “If a dispute arises, the end

result of the trial court’s evaluation should be a separate document intended to recite or accurately

summarize the evidence that was taken and the relevant procedure that occurred in the trial court.”

Espino v. Siladi, 9th Dist. Summit No. 24441, 2009-Ohio-3005, ¶ 12.

{¶26} As previously noted, Ms. Norton filed a proposed statement of the evidence with

the trial court after filing her notice of appeal. Dominion then filed its objection and proposed

amendments, and Ms. Norton filed a rebuttal. On December 6, 2019, the trial court issued an order

in response to the parties’ filings.1 The court’s order purported to approve Ms. Norton’s statement

of the evidence with various additions and deletions. Yet, the order did not recite or summarize

the evidence. Instead, it referred to portions of the parties’ filings by heading number and indicated

that those numbered sections were either adopted or stricken. Though the trial court intended its

order to serve as an App.R. 9(C) statement, this Court later determined that the order could not be

1
The court’s order was signed by both the magistrate and the trial court. Because the magistrate
had presided over the trial, the trial court relied on the magistrate’s recollection of the proceedings.
 11

considered a settled and approved statement of the evidence. See Norton v. Dominion Energy

Serv., 9th Dist. Summit No. 29543 (Feb. 13, 2020). Following our determination, the trial court

issued another order that served as an App.R. 9(C) statement.

{¶27} Ms. Norton argues that the trial court erred when it initially treated its December

6th order as an App.R. 9(C) statement. Relevant to her argument herein, she filed the following

items after the court issued its order: (1) on December 12, 2019, she moved the court to hear

additional testimony from the contractor who built her home because the magistrate had failed to

recall certain aspects of his trial testimony; (2) on December 13, 2019, she moved the court to

amend its December 6th order in various respects due to purported misstatements and omissions;

and (3) on December 19, 2019, she moved the court to sign and approve an amended statement of

evidence wherein she purportedly “incorporated all adopted and approved amendments in an

organized manner for [the court’s] review.” According to Ms. Norton, the trial court failed to rule

on her December 19th motion and denied her December 12th and 13th motions because it believed

that it had already approved and settled a statement of the evidence on December 6th. She claims

that the court’s “oversights” affected her substantial rights. Further, she asks this Court to consider

her December 13th motion in conjunction with the trial court’s final statement of the evidence “to

clear up details in the statement.”

{¶28} Regarding Ms. Norton’s December 12th motion to take additional testimony from

her contractor, the record reflects that the trial court denied her motion because it construed it as a

request to hear new evidence. The court specifically found that the testimony Ms. Norton wished

to introduce had not been presented at trial. Ms. Norton has not addressed the validity of that

finding on appeal. See App.R. 16(A)(7). She merely argues that the trial court erred by denying

her motion because her contractor’s testimony was relevant to the proceedings. Yet, an
 12

“[a]ppellant may not use App.R. 9(C) to supplement the record with new evidence, not considered

by the trial court in reaching its decision.” In re Name Change of S.D.L., 6th Dist. Huron No. H-

18-014, 2019-Ohio-2950, ¶ 14. The purpose of an App.R. 9(C) statement is simply to summarize

the evidence presented at trial. See Espino, 2009-Ohio-3005, at ¶ 12. Because Ms. Norton has not

shown that the trial court erred when it found her December 12th motion to be a request to hear

new evidence, we reject her argument that it erred by denying her motion.

{¶29} To the extent the trial court denied Ms. Norton’s December 13th motion, she has

not shown that its decision affected her substantial rights. See Civ.R. 61. The record reflects that

the trial court denied her motion on the basis that it had already settled and approved a statement

of the evidence and the matter was pending with this Court. About one month later, this Court

found that the trial court had yet to issue a statement of the evidence that complied with App.R.

9(C). We extended the time for filing the record and indicated that a remand was unnecessary

because “the matter remains before the trial court * * *.” See Norton v. Dominion Energy Serv.,

9th Dist. Summit No. 29543 (Feb. 13, 2020). One full month then elapsed before the trial court

issued another order that served as a statement of the evidence for purposes of App.R. 9(C).

{¶30} Even if the trial court erred when it initially refused to consider Ms. Norton’s

December 13th motion, there was nothing to prevent her from renewing her motion once this Court

made it clear that an App.R. 9(C) statement had yet to issue and the matter was still pending with

the trial court. Ms. Norton had the opportunity to present additional arguments to the trial court at

that time. Moreover, even after the court issued a statement of the evidence, she had the ability to

avail herself of the remedy set forth in App.R. 9(E) if she believed that the statement contained

material omissions or errors. See Discussion, infra. She has not shown that the court’s initial
 13

refusal to consider her December 13th motion affected her substantial rights. See Civ.R. 61. Thus,

we reject her argument to the contrary.

{¶31} Finally, to the extent Ms. Norton argues that the trial court ignored her December

19th motion and asks us to “clear up” certain details in the trial court’s statement of the evidence,

we find that App.R. 9(E) controls. The rule provides that

[i]f any difference arises as to whether the record truly discloses what occurred in
the trial court, the difference shall be submitted to and settled by the trial court and
the record made to conform to the truth. If anything material to either party is
omitted from the record by error or accident or is misstated, the parties by
stipulation, or the trial court, either before or after the record is transmitted to the
court of appeals, or the court of appeals, on proper suggestion or of its own
initiative, may direct that omission or misstatement be corrected, and if necessary
that a supplemental record be certified, filed, and transmitted.

App.R. 9(E). “Two things are clear from the rule. The first is that either the trial court or the court

of appeals may order that a record be corrected and supplemented. The second is that where a

party seeks to have the record corrected, it is within the province of the trial court to resolve

disputes about the record on appeal.” (Emphasis added.) State v. Schiebel, 55 Ohio St.3d 71, 81

(1990). “[T]he court of appeals cannot resolve disputes about the trial court’s record in the course

of an appeal.” Id. at 82. Rather, the trial court must weigh the evidence and decide whether to

correct or supplement the record. Id. Where the trial court’s ruling is “supported by competent,

reliable evidence, [it] will not be reversed by a reviewing court absent an abuse of discretion.” Id.

{¶32} This Court is without authority to “clear up” any portion of the trial court’s App.R.

9(C) statement, as that authority only rests with the trial court. See id. See also City of Medina v.

Osiecki, 9th Dist. Medina No. 09CA0064-M, 2011-Ohio-1534, ¶ 18. Though we may review the

court’s order for “competent, reliable evidence,” Schiebel at 82, Ms. Norton has failed to set forth

an argument in that regard. See App.R. 16(A)(7). She has made no attempt to show within the

construct of this assignment of error that one or more of the trial court’s conclusions is based on
 14

insufficient evidence. See Schiebel at 82. This Court will not formulate an argument on her behalf.

See Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998).

Accordingly, her tenth assignment of error is overruled.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN SUPPORT OF THE MAGISTRATE’S
DECISION BY RULING IN FAVOR OF THE DEFENDANT-APPELLEE
WHEN IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERROR IV

IN ABSENCE OF A RECORD, IT WAS PLAIN ERROR FOR THE TRIAL
COURT TO IGNORE THE ONLY AFFIDAVIT FILED DESCRIBING THE
EVIDENCE.

{¶33} In her first assignment of error, Ms. Norton argues that the trial court lost its way

when it entered judgment in favor of Dominion. To that end, she also argues in her fourth

assignment of error that the court erred when it “ignore[d]” the affidavit she submitted in support

of her objections to the magistrate’s decision. Because there was no transcript and her affidavit

was the only evidence before the court, Ms. Norton argues, the evidence weighed in her favor. For

the following reasons, we reject her arguments.

{¶34} “[B]efore an appellate court will reverse a judgment as against the manifest weight

of the evidence in a civil context, the court must determine whether the trier of fact, in resolving

evidentiary conflicts and making credibility determinations, clearly lost its way and created a

manifest miscarriage of justice.” Boreman v. Boreman, 9th Dist. Wayne No. 01CA0034, 2002-

Ohio-2320, ¶ 10. Only where the evidence presented weighs heavily in favor of the party seeking

reversal will the appellate court reverse. Id. Manifest weight of the evidence pertains to the burden

of persuasion. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 19. “In weighing the
 15

evidence, the court of appeals must always be mindful of the presumption in favor of the finder of

fact.” Id. at ¶ 21.

{¶35} To prevail on a negligence claim, a plaintiff must establish “(1) the existence of a

duty, (2) a breach of that duty, and (3) an injury proximately resulting from the breach.” Robinson

v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, ¶ 21. A defendant cannot be held liable for an open

and obvious danger as it “obviates the duty to warn and acts as a complete bar to any negligence

claims.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 5. Likewise, a

defendant cannot be held liable for unforeseeable damages that are not a “natural and probable

consequence” of his alleged actions. Ross v. Nutt, 177 Ohio St. 113, 114 (1964). “[T]he proximate

cause of an event is that which in a natural and continuous sequence, unbroken by any new,

independent cause, produces that event and without which that event would not have occurred.”

Aiken v. Indus. Comm., 143 Ohio St. 113, 117 (1944).

{¶36} The magistrate who presided over Ms. Norton’s trial made each of the following

factual findings in his decision. Ms. Norton had a new home constructed in mid-2015. As a part

of that process, a gas line was installed on her property in November 2015. The gas line was fitted

with a cap that protruded several inches above her ungraded yard. The gas cap rested on a plastic,

adjustable conduit pipe that could be raised or lowered upon the final grading of the property to

make the gas cap level with or below the ground. Even so, neither Ms. Norton’s landscaper, nor

her builder adjusted the pipe. Instead, Ms. Norton instructed her landscaper to grade the area

around the pipe to make the gas cap level with her yard. For the next three years, she never reported

a problem with the cap. Then, in the fall of 2018, she hit the gas cap with her lawnmower, causing

it to dislodge and strike her garage door.
 16

{¶37} The magistrate concluded that Ms. Norton knew where the gas line/cap was located

on her property. He further concluded that her landscaper or builder had failed to adjust the conduit

pipe below the cap to ensure that it was level with or below the final grade of the yard. Because

Ms. Norton failed to prove that Dominion or its contractor was negligent, the magistrate

recommended that judgment be granted in favor of Dominion.

{¶38} In her objections to the magistrate’s decision, Ms. Norton challenged several of the

magistrate’s factual findings and legal conclusions. She contested the finding that she knew where

the gas line/cap was located for three years and, during that time, never reported a problem. She

contested the finding that it was the responsibility of her builder and/or landscaper to adjust the

gas pipe rather than Dominion’s responsibility. Finally, she contested the conclusion that she

failed to prove Dominion’s negligent installation by a preponderance of the evidence.

{¶39} The trial court found that certain aspects of Ms. Norton’s objections were not

supported by the evidence presented at trial. It further found that, even if one or more of the

magistrate’s factual findings were incorrect, Dominion was still entitled to a judgment in its favor.

The court agreed with the magistrate’s finding that Mrs. Norton knew or should have known where

the gas pipe/cap was located, as she had instructed her landscaper to grade around it. To the extent

there was conflicting testimony, the court noted that the magistrate was in the best position to

determine the credibility of the witnesses who testified at the hearing. The court concluded that

Ms. Norton had failed to prove, by a preponderance of the evidence, that Dominion was negligent.

Thus, it entered judgment in favor of Dominion.

{¶40} Ms. Norton argues that the trial court lost its way when it entered judgment in favor

of Dominion. She argues that the evidence showed her gas line and cap were installed at an

incorrect height. Further, she argues that the evidence showed she notified Dominion of that fact
 17

in June 2016. According to Ms. Norton, she was only aware of the specific location of the gas

pipe/cap from June 2016 until August 2016. At that point, her landscaper graded the area

surrounding the pipe and hid it from view. She notes that, when Dominion performed repairs in

2019, it set the pipe and cap below grade. Likewise, she argues, her neighbors had their gas lines

installed below grade. As to the gas cap itself, Ms. Norton argues that there was evidence it too

had been improperly installed. Specifically, she claims to have set forth evidence that, if properly

installed, the cap would have cracked into pieces instead of dislodging. Ms. Norton argues that

the trial court “ignore[d]” her evidence when it overruled her objections and entered judgment in

favor of Dominion.

{¶41} Initially, we reject Ms. Norton’s argument that the trial court “ignore[d]” her

affidavit. In ruling on her objections, the court specifically indicated that she had “filed an affidavit

of the proceedings with her objections * * *.” The court also indicated that it had conducted an

independent review of her objections, Dominion’s response, and the court file. Thus, the record

supports the conclusion that the court considered Ms. Norton’s affidavit in conjunction with her

objections to the magistrate’s decision.

{¶42} Upon review of the record, we cannot conclude that the trial court clearly lost its

way and created a manifest miscarriage of justice when it entered judgment in favor of Dominion.

See Boreman, 2002-Ohio-2320, at ¶ 10. Ms. Norton acknowledged in her own affidavit that her

landscaper graded the area around the gas line and cap because the cap protruded from the ground

and was “an unsightly tripping hazard.” Thus, even if the gas line/cap was improperly installed,

they constituted an open and obvious danger at the time of their installation. See Armstrong, 2003-

Ohio-2573, at ¶ 5 (open and obvious dangers act as a complete bar to negligence). Further, the

greater weight of the evidence tended to show that the damage Ms. Norton sustained to her garage
 18

was not a “natural and probable cause” of any improper installation on the part of Dominion. Ross,

177 Ohio St. at 114. As noted, “the proximate cause of an event is that which in a natural and

continuous sequence, unbroken by any new, independent cause, produces that event and without

which that event would not have occurred.” (Emphasis added.) Aiken, 143 Ohio St. at 117.

Following the installation of the gas pipe and cap, Ms. Norton’s landscaper buried them to hide

them from view. A rational trier of fact could have concluded that, had the gas pipe and cap

remained exposed, Ms. Norton would not have run them over with her lawnmower and sustained

damage to her garage door. Thus, we cannot conclude that the trial court’s judgment in favor of

Dominion is against the weight of the evidence. See Boreman at ¶ 10. Ms. Norton’s first and

fourth assignments of error are overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ABUSED ITS DISCRETION BY OVERLOOKING
DOMINION’S NEGLIGENCE IN FAILING TO ACT AFTER BEING PUT ON
NOTICE OF THE FAULTY INSTALLATION.

{¶43} In her second assignment of error, Ms. Norton argues that the trial court disregarded

evidence tending to show that Dominion breached a duty to her. She points to statements she made

in her affidavit and her objections to the magistrate’s decision. According to Ms. Norton, those

statements showed that she told a Dominion representative in June 2016 that her gas line/cap had

been improperly installed (i.e., by being set above grade). She argues that, had Dominion corrected

the installation, her accident would not have occurred.

{¶44} The limited argument that Ms. Norton has set forth herein mirrors the manifest

weight argument that she advanced in her first and fourth assignments of error. See Discussion,

supra. As we have already explained, the exposed gas line/cap on her property constituted an open

and obvious danger at the time of its installation. Even if it was improperly installed, Dominion
 19

had no duty to warn her about it. See Armstrong, 2003-Ohio-2573, at ¶ 5. Further, Ms. Norton

failed to prove that Dominion’s actions proximately caused her damages. See Discussion, supra.

A rational trier of fact could have concluded that a different, independent cause led to her damages

(i.e., the burying of the elevated gas line/cap in the absence of an adjustment). See Aiken, 143

Ohio St. at 117. Evidence that Dominion knew about the faulty installation in June 2016 would

not have changed the result in this matter. Accordingly, Ms. Norton’s second assignment of error

is overruled.

ASSIGNMENT OF ERROR IX

THE TRIAL COURT ERRED AS A MATTER OF LAW BY EXCLUDING
NORTON’S TESTIMONY AS HEARSAY FROM THE 9C STATEMENT
DATED MARCH 16, 2020 WHEN IT WAS INTRODUCED AT THE HEARING
WITHOUT OBJECTION AND PRECLUDED NORTON FROM OFFERING A
PROFFER.

{¶45} In her ninth assignment of error, Ms. Norton argues that the trial court erred when

it excluded portions of her testimony from its App.R. 9(C) statement on the basis that they

amounted to hearsay. Because the rules of evidence are inapplicable to small claims proceedings,

Ms. Norton argues, that testimony ought to have been admitted.

{¶46} Even if the trial court erred when it excluded certain portions of Ms. Norton’s

testimony, she has not shown that the court’s error affected her substantial rights. See Civ.R. 61.

The trial court refused to consider statements that service personnel from Dominion allegedly

made to Ms. Norton in January 2019 when they came to repair her gas line/cap. Those statements

included shock that her gas cap had dislodged in the manner that it did and admissions that

Dominion often had to repair installations performed by its subcontractors. Ms. Norton argues

that those statements were admissible because the rules of hearsay do not apply to small claims

proceedings. Yet, she has not explained how the admission of those statements would have
 20

changed the result in this matter. See App.R. 16(A)(7). The statements would not have changed

the fact that the gas line/pipe constituted an obvious error at the time of installation. See

Discussion, supra. Nor would they have changed the fact that Ms. Norton failed to prove

proximate cause. See id. Because Ms. Norton has failed to establish that the exclusion of the

foregoing testimony affected her substantial rights, her ninth assignment of error is overruled.

ASSIGNMENT OF ERROR VII

THE TRIAL COURT ABUSED ITS DISCRETION BY NOT GRANTING
NORTON A TRIAL DE NOVO.

{¶47} In her seventh assignment of error, Ms. Norton argues that trial court abused its

discretion by not granting her a new trial. We disagree.

{¶48} “Civ.R. 59(A) provides multiple grounds upon which a party may base a motion

for a new trial and, depending on the basis stated in the motion, ‘this Court will review a trial

court’s decision to grant or deny the motion under either a de novo or an abuse of discretion

standard of review.’” Tesar Indus. Contrs., Inc. v. Republic Steel, 9th Dist. Lorain Nos.

16CA010957, 16CA010960, 2018-Ohio-2089, ¶ 12, quoting Jackovic v. Webb, 9th Dist. Summit

No. 26555, 2013-Ohio-2520, ¶ 17. It is an appellant’s burden on appeal to demonstrate error in

the trial court’s denial of a motion for new trial. Macken v. KDR Holdings, 9th Dist. Lorain No.

06CA009003, 2007-Ohio-4106, ¶ 27-30.

{¶49} Ms. Norton acknowledges that she never formally moved for a new trial in the

lower court. She argues that the court ought to have considered the following objections and filings

as a motion for a new trial: (1) an objection to the magistrate’s decision based on the magistrate’s

failure to fully consider the testimony of Ms. Norton’s contractor; (2) her supplement to her

objections wherein she “introduced new evidence not available until mid-June 2019”; and (3) a

motion for reconsideration that she filed based on four of the grounds set forth in Civ.R. 59(A).
 21

The trial court rejected each of her objections/filings for various reasons. In doing so, it

specifically found that Ms. Norton had not filed a motion for new trial and that her motion for

reconsideration was a nullity. According to Ms. Norton, the court should have treated her filings

as the functional equivalent of a motion for new trial. Even if they were not captioned as such,

she argues, she was entitled to relief on that basis.

{¶50} Upon review, Ms. Norton has not demonstrated that the trial court erred by not

granting her a new trial. Assuming without deciding that the court should have recast one or more

of her filings as a motion for new trial, see State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶

12, Ms. Norton has not addressed the application of Civ.R. 59. She has made “no attempt to

explain why or how Civ.R. 59(A)’s particular components apply to any of [her] arguments.”

Ulrich v. Mercedes-Benz USA, L.L.C., 187 Ohio App.3d 154, 2010-Ohio-348, ¶ 27 (9th Dist.).

Absent any argument or analysis regarding Civ.R. 59(A)’s application in this matter, this Court is

unable to engage in a meaningful review. See Macken, 2007-Ohio-4106, at ¶ 27-30. This Court

will not construct an argument on Ms. Norton’s behalf. See Ulrich at ¶ 27; Cardone, 1998 WL

224934, at *8. Accordingly, her seventh assignment of error is overruled.

III.

{¶51} Ms. Norton’s assignments of error are overruled. The judgment of the Barberton

Municipal Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.
 22

We order that a special mandate issue out of this Court, directing the Barberton Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

THOMAS A. TEODOSIO
FOR THE COURT

HENSAL, J,
CONCURS.

CARR, P. J.
DISSENTS.

APPEARANCES:

BARBARA NORTON, pro se, Appellant.

DAVID L. SHERMAN, Attorney at Law, for Appellee.