Carpenter v. Johnson

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 2nd District Court of Appeals » 2011 » Carpenter v. Johnson

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-4867

Case Date: 09/23/2011

Plaintiff: Carpenter

Defendant: Johnson

Preview:[Cite as Carpenter v. Johnson, 2011-Ohio-4867.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
KENNY CARPENTER                                                                    :
Plaintiff-Appellee                                                                 :             C.A. CASE NO.           24128
v.                                                                                 :             T.C. NO.                09 CVI 2098
FRED JOHNSON                                                                       :             (Criminal appeal from
Municipal Court)
Defendant-Appellant                                                                :
:
O P I N I O N
Rendered on the                                                                    23rd          day of                  September     , 2011.
K. PHILIP CALLAHAN, Atty. Reg. No. 0047324, 10 North First Street, Miamisburg,
Ohio 45342
Attorney for Plaintiff-Appellee
JOHN J. SCACCIA, Atty. Reg. No.  0022217,  536 W. Central Avenue, 2nd Floor,
Springboro, Ohio 45066
Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1}  Kenny   Carpenter   brought   suit   against   Fred   Johnson   in   the
Miamisburg  Municipal  Court,  Small  Claims  Division,  seeking                   $2,500  for   “[t]he
unlawful conversion of Plaintiff’s Remington Model  1100 Sporting Rifle equipped

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with a Cantalever Deer Barrel and Charles Daley Scope.”   Carpenter alleged that
Johnson  had  taken  the  hunting rifle,  at  gunpoint,  after Carpenter  “unknowingly
wandered” onto Johnson’s property, which Carpenter claimed was unmarked and
unfenced.     In  response,  Johnson  asserted  that  Carpenter  had  repeatedly
trespassed on his land in order to hunt deer and that Carpenter had agreed to give
Johnson the rifle in exchange for Johnson’s not contacting the police.
{¶ 2}  After  a  bench  trial  before  a  magistrate,  the  magistrate  found  that
Carpenter had given the rifle to Johnson under duress and, therefore, Johnson was
liable to Carpenter in the amount of $2,500, which was the amount Carpenter had
sought in his complaint; Carpenter testified that the rifle’s value was $3,000.   The
magistrate noted that Carpenter had not asked for replevin of the rifle, although
Carpenter had testified that he  “would rather have the gun than anything.”   The
magistrate further noted that Johnson had not brought claims against Carpenter.
The magistrate’s decision was immediately adopted by the trial court.
{¶ 3}  Johnson   timely   objected   to   the   magistrate’s   decision   and,
alternatively, sought relief from that decision and a new trial under Civ.R. 60(B).
Johnson claimed that Carpenter had committed fraud on the court by testifying to
an excessively high value for the rifle.   After a hearing on the Civ.R. 60(B) motion,
the magistrate overruled that motion and denied Johnson’s request for a new trial.
The  magistrate  concluded:  “The  Court  does  not  believe  that  Defendant,  Fred
Johnson,  has  established  that  any  fraud  was  perpetrated  upon  the  Court.
Assuming arguendo that the Defendant was able to establish fraud, his motion for
relief must still fail as he failed to present any evidence of a meritorious defense if

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relief was granted.”   No timely objections to the Civ.R. 60(B) decision were filed.1
{¶ 4}  The  trial court  subsequently overruled Johnson’s objections to the
magistrate’s decision regarding the merits of Carpenter’s claim and adopted both of
the magistrate’s decisions.   The trial court’s judgment was stayed pending appeal.
{¶ 5}  Johnson  appeals  from  the  trial  court’s  judgment.                                                                        His  sole
assignment of error states:
{¶ 6}                                                                                                                                “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY NOT
ORDERING A NEW HEARING ON DAMAGES OR A NEW TRIAL, OR AT LEAST
A FACTUAL HEARING ON APPELLANT’S  *** CIV.R.  60(B) MOTION WHEN IT
WAS APPRAISED [sic] THAT APPELLEE SUBSTANTIALLY MISREPRESENTED
THE VALUE OF THE PROPERTY AND TESTIFIED THAT THE PROPERTY WAS
NO LONGER IN PRODUCTION.”
{¶ 7}  Johnson’s  appeal  centers  around  the  trial  court’s  refusal  to  allow
additional  evidence  regarding  the  value  of  Carpenter’s  rifle.    Johnson  did  not
appeal from the trial court’s findings that Carpenter had given his rifle to Johnson
while under duress and, therefore, that Johnson was liable to Carpenter for the
value of the gun.
{¶ 8}  At the outset, we emphasize that the bench trial was held before a
magistrate, not the trial court.   Although magistrates  “truly do the  ‘heavy lifting,’”
1Johnson moved for relief from the trial court’s judgment under Civ.R. 60(B), claiming that he did not receive notice of
the magistrate’s decision on his prior Civ.R. 60(B) motion until after the trial court had entered judgment against him.   Johnson
further requested leave to file objections to the magistrate’s decision on the prior Civ.R. 60(B) motion.   Those motions remained
pending when Johnson filed his notice of appeal.

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Quick v. Kwiatkowski, Montgomery App. No. 18620, 2001-Ohio-1498, “magistrates
are neither constitutional nor statutory courts.   Magistrates and their powers are
wholly creatures of rules of practice and procedure promulgated by the Supreme
Court.   Therefore, magistrates do not constitute a judicial tribunal independent of
the court that appoints them.   Instead, they are adjuncts of their appointing courts,
which remain responsible to critically review and verify the work of the magistrates
they appoint. ***   The magistrate is a subordinate officer of the trial court, not an
independent officer performing a separate function.”                                           (Internal citations omitted.)
Francis v. McDermott, Darke App. No  1744,  2008-Ohio-6723,  ¶12, citing Quick,
supra.
{¶ 9}  Until  a  trial  court  adopts  the  magistrate’s  decision  and  enters
judgment, the magistrate’s decision is merely an interlocutory recommendation and
is not a final appealable order.   See Civ.R. 53(D)(4)(a) (stating that a “magistrate’s
decision  is  not  effective  unless  adopted  by  the  court.”);  Crane  v.  Teague,
Montgomery App. No. 20684, 2005-Ohio-5782.   A trial court may enter judgment
during the period for filing objections, but when timely objections are filed, the
objections  “operate as an automatic stay of execution of the judgment until the
court  disposes  of  those  objections  and  vacates,  modifies,  or  adheres  to  the
judgment previously entered.”   Civ.R. 53(B)(4)(e)(i).   Until the trial court rules on
those  objections,  there  is  no  final  appealable  order.    See,  e.g.,  In  re  F.D.M.,
Montgomery  App.  No.  23021,  2009-Ohio-5609  (addressing  Juv.R.  40,  which  is
similar to Civ.R. 53, and R.C. 2505.02); In re C.B., Montgomery App. No. 23615,
2010-Ohio-2129, ¶26; Miller v. Miller, Wayne App. No. 09CA25, 2010-Ohio-1251,

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¶9.
{¶ 10} Civ.R. 60(B) permits a party to move for relief from a final judgment.
Because Johnson filed timely objections to the magistrate’s decision simultaneously
with his Civ.R.  60(B) motion, the trial court’s prior adoption of the magistrate’s
decision was stayed, and there was no final judgment in the case until the trial court
later ruled on Johnson’s objections and entered judgment.   As a result, at the time
that the magistrate and the trial court addressed Johnson’s Civ.R. 60(B) motion,
Civ.R. 60(B) was not applicable.
{¶ 11} Even if Civ.R. 60(B) were applicable, we would conclude that the trial
court did not err in failing to order a new hearing based on Carpenter’s alleged
misrepresentation  of  the  rifle’s  value.    To  prevail  on  a  motion  for  relief  from
judgment, the movant must show that: (1) he has a meritorious defense or claim to
present if relief were granted; (2) he is entitled to relief under one of the grounds
stated in Civ.R. 60(B)(1)-(5); and (3) his motion is timely.   GTE Automatic Elec.,
Inc.  v.  ARC  Industries,  Inc.                                                               (1976),   47  Ohio  St.2d  146,  351  N.E.2d  113,  at
paragraph two of the syllabus.   Civ.R. 60(B) permits trial courts to relieve parties
from a final judgment for the following reasons: (1) “mistake, inadvertence, surprise
or excusable neglect,” (2) newly discovered evidence, (3) fraud, misrepresentation
or other misconduct of  an adverse party,  (4) the judgment has been satisfied,
released or discharged, or (5) any other reason justifying relief from the judgment.
{¶ 12} Johnson sought relief due to fraud on the court, which is addressed

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under  Civ.R.                                                                                                       60(B)(5). 2    See  In  re  A.K.,  Champaign  App.  No.   2011  CA  4,
2011-Ohio-4536,  ¶7  (stating that fraud on the court is addressed under Civ.R.
60(B)(5), whereas fraud between the parties falls under Civ.R. 60(B)(3)).                                           “‘Fraud
upon  the  court’  is  an  elusive  concept.                                                                        ***    One  commentator,  however,  had
provided this definition: ‘“Fraud upon the court” should, we believe, embrace only
that species of fraud which does or attempts to, defile the court itself, or is a fraud
perpetrated  by  the  officers  of  the  court  so  that  the  judicial machinery can  not
perform in the usual manner its impartial task of adjudging cases that are presented
for adjudication.’”   Coulson v. Coulson (1983), 5 Ohio St.3d 12, 15, quoted by In re
A.K. at ¶9.
{¶ 13} At oral argument, Johnson’s counsel stated that he was proceeding
under  Civ.R.  60(B)(3),  which  addresses  fraud  by  an  adverse  party.                                          “A  Civ.R.
60(B)(3) motion for relief from judgment based on fraud, misrepresentation, or other
misconduct by an adverse party ought to be granted where the court is reasonably
well satisfied that the testimony by a material witness is false; that, without it, the
trier of fact might have reached a different conclusion; and that the party seeking
relief was taken by surprise when false testimony was given and was unable to
meet  it  or  did  not  know  of  its  falsity  until  after  trial.”    Goldshot  v.  Goldshot,
Montgomery App. No. 19000, 2002-Ohio-2056.
{¶ 14} When considered under Civ.R. 60(B)(3) or 60(B)(5), we agree with the
magistrate  that  Carpenter’s  testimony  regarding  the  value  of  his  rifle  did  not
2At oral argument, Johnson’s counsel acknowledged that he was not proceeding under Civ.R. 60(B)(2) based on newly
discovered evidence.

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constitute  fraud.                                                                                                                    “In  general,  the  measure  of  damages  is  the  value  of  the
converted property at the time it was converted.    Just compensation is the fair
market value, or the price at which a willing seller and a willing buyer would settle in
a voluntary sale.”                                                                                                                    (Internal citations omitted.)    Thompson v. Allen, Montgomery
App. No.  23292,  2010-Ohio-1133,  ¶18.    It is well established that the owner of
personal  property is  competent  to  testify as  to  the  market  value  of  his  or her
property.    Kelly  v.  Kelly,                                                                                                        163  Ohio  App.3d  260,  2005-Ohio-4740,  ¶32,  citing
Valigore v. Cuyahoga Cty. Bd. of Revision, 105 Ohio St.3d 302, 2005-Ohio-1733.
{¶ 15} Carpenter’s complaint requested $2,500 for Johnson’s conversion of
the rifle, and Carpenter testified at trial that the rifle’s value was $3,000.   If Johnson
believed that the value Carpenter attributed to his rifle was inflated, Johnson could
have questioned Carpenter about the bases for his valuation, and Johnson had the
opportunity at trial to submit evidence to demonstrate that the fair market value
was, in fact, lower.   Moreover, other than noting that he was not represented by
counsel during the bench trial, Johnson has not offered any explanation as to why
he did not present any evidence at trial regarding the value of Carpenter’s rifle.3
{¶ 16} In his Civ.R. 60(B) motion, Johnson asserted that the trial court could
take judicial notice of the fair market value of the gun.   We disagree.   The value of
3Upon reviewing the magistrate’s decision, the trial court may hear the previously-referred matter, take additional
evidence, or return the matter to the magistrate.   Civ.R. 53(D)(4)(b).   When ruling on objections, the trial court may hear
additional evidence, but it may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable
diligence, have produced that evidence for consideration by the magistrate.   Civ.R. 53(D)(4)(d).   Even if we were to construe
Johnson’s Civ.R. 60(B) motion as a request for the trial court to consider additional evidence under Civ.R. 53, he has not shown
that he could not, with reasonable diligence, have produced the evidence regarding the rifle’s value at trial.   We would thus find
no error in the trial court’s refusal to consider such additional evidence.

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Carpenter’s gun was not a matter that would be generally known in the court’s
territorial jurisdiction, nor was it “capable of accurate and ready determination by
resort  to  sources  whose  accuracy  cannot  reasonably  be  questioned.”    Evid.R.
201(B).   To the contrary, a person generally must be qualified as an expert in order
to testify as to the value of property.   Thompson at  ¶19, citing Tokles & Son v.
Midwestern Indemn. Co.  (1992),  65 Ohio St.3d  621,  625-626; Smith v. Padgett
(1987),                                                                                       32  Ohio  St.3d  344,  347.    An  exception  exists  for  owners  of  personal
property, because the owner, “aided by experience, has some particular means of
forming  an  intelligent  and  correct  judgment  as  to  the  value  of  the  property  in
question beyond that which is possessed by people generally.”   Squires v. Luckey
Farmers Inc., Ottawa App. No. OT-03-046, 2004-Ohio-4919, cited by Thompson at
¶19.
{¶ 17} In short, the trial court did not err in denying Johnson a new trial on
the issue of Carpenter’s damages.   Johnson’s assignment of error is overruled.
{¶ 18} The trial court’s judgment will be affirmed.
GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
K. Philip Callahan
John J. Scaccia
Hon. Robert E. Messham, Jr.

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