COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60426 ROBERT STANDRING : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION XEROX CORPORATION : : Defendant-appellee : : DATE OF ANNOUNCEMENT : APRIL 30, 1992 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 186651 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: Robert Standring Leonard S. Greenwald, Esq. P.O. Box 1090 815 Superior Avenue 757 Front Street Cleveland, OH 44114 Berea, OH 44017-5090 - 2 - PATTON, J. On March 19, 1990, plaintiff-appellee, Xerox Corporation, filed suit against defendant-appellant, Robert Standring, to collect payment on a commercial installment purchase agreement. Appellant, proceeding pro se, filed a "Response with Motion To Suppress Plaintiff's Exhibit "A" and Attached Counterclaim for 1 Money Damages." At page five of appellant's response appeared the following caption, "Counterclaim for Money Damages with Jury Demand." On June 21, 1990, appellant filed a motion for discovery and to compel production of documents. Therein appellant certified that on June 18, 1990, service of the motion for discovery was made to appellee's attorney. On July 16, 1990, the trial court denied appellant's motion. On July 20, 1990, appellant filed a motion to compel the deposition of Frank Pacetta, which was denied by the trial court on August 6, 1990. The case proceeded to trial on August 20, 1990. The trial court, on its own motion, severed the complaint from the counter- claim for trial. The complaint was tried to the court and the counterclaim proceeded before a jury. Following trial on the complaint, the court entered a verdict in favor of the appellee in the amount of $13,043.81 plus interest from November 1, 1989 and costs. Subsequently, a jury 1 Plaintiff's Exhibit "A" was a copy of the installment purchase agreement signed by the appellant. - 3 - was impanelled for hearing the appellant's counterclaim. At the close of appellant's evidence appellee moved for a directed verdict which was granted by the trial court. The instant appeal followed. Appellant's first assignment of error provides: I. THE TRIAL COURT MATERIALLY AND JUDICIALLY ERRED IN DISALLOWING A JURY TRIAL TO HEAR APPELLANT'S AFFIRMATIVE DEFENSE. Appellant argues the trial court erred by not allowing all the issues to be tried by a jury. Appellant's argument lacks merit. Civ. R. 38(C) provides: (C) Specification of issues. In his demand a party may specify the issues which he wishes so tried; otherwise he shall be deemed to have de- manded trial by jury for all the issues so tri- able. If he has demanded trial by jury for only some of the issues, any other party within four- teen days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action. Pursuant to Civ. R. 38 the right to trial by jury is waived absent a party's proper demand. Cincinnati Ins. Co. v. Gray (1982), 7 Ohio App. 3d 374. Under Civ. R. 38(C), a party may specify the issues he wishes to be tried by a jury. In the instant case the appellant's response to appellee's complaint contained the following jury demand: "Counterclaim for Money Damages with Jury Demand." Review of the record reveals that the appellant demanded trial by jury for only some of the issues. Specifically, he only demanded trial by jury for his - 4 - counterclaim. We thus conclude the appellant waived his right to a jury trial on all the issues except for those specifically involving his counterclaim. Civ. R. 38; Cincinnati Ins. Co., supra. Accordingly, appellant's first assignment of error is overruled. Appellant's second assignment of error provides: II. THE TRIAL COURT MATERIALLY AND JUDICIALLY ERRED IN SURREPTITIOUSLY MOVING THE TRIAL DATE FORWARD WITHOUT WRITTEN NOTICE. Appellant argues he was materially prejudiced by the trial court's actions in moving the trial date forward from August 23, 1990 to August 20, 1990. Specifically, appellant maintains the trial court's actions prevented him from presenting relevant testimony due to the unavailability of some witnesses. Appellant's argument lacks merit. Prior to impanelling a jury to hear the appellant's counter- claim the trial court asked the appellant to reveal the identi- ties of his trial witnesses and to summarize the content of their testimony. Appellant indicated Faye Parella would be able to testify about the capabilities of appellant's former computer system. However, upon the court's questioning, appellant re- vealed Parella was not present during the alleged misrepre- sentation. Additionally, appellant informed the court he would present the testimony of Brent Tisdale a former IBM salesman who viewed appellant using the computer equipment. Finally, appel- - 5 - lant indicated Frank Pacetta, appellee's district manager could have testified about the appellee's actions after appellant alerted them of the problems with the new computer system. After reviewing the potential issues upon which the above- referenced witnesses could have testified, we are unable to con- clude that the appellant was materially prejudiced by the trial going forward on August 20, 1990 as opposed to August 23, 1990. Parella and Tisdale's trial testimony would have been confined to the functioning and capabilities of appellant's computer equip- ment. It in no way would have supported appellant's claim of misrepre-sentation since none of the witnesses were present when the misrepresentations were allegedly uttered. Similarly, Pacetta's testimony would not have supported appellant's claim of misrepre-sentation since he was not involved in the sale of the computer equipment to appellant, but rather only became involved after the equipment was delivered. We thus conclude that the testimony of the above-named wit- nesses was not probative of the issue of the alleged misrepresentation in the sale of computer equipment to the appellant. Accordingly, appellant was not materially prejudiced by his inability to present their testimony and the trial court did not err in going forward with the trial of his counterclaim on August 20, 1990. Accordingly, appellant's second assignment of error is over- ruled. - 6 - Appellant's third assignment of error provides: III. THE TRIAL COURT MATERIALLY AND JUDICIALLY ERRED IN DISALLOWING APPELLANT RIGHT OF DISCOVERY UPON MOTION. Appellant argues the trial court improperly prevented him from obtaining relevant information through discovery by denying his "Motion for Discovery." Appellant's argument lacks merit. Civ. R. 34(B) provides in part: *** The party upon whom the request is served shall serve a written response within a period designated in the request, not less than twenty- eight days after the service thereof or within such shorter or longer time as the court may allow ***. Thus, Civ. R. 34(B) provides for a twenty-eight day waiting period between service of the request to mandatory production of the items requested. If the items requested are not produced within the twenty-eight day period provided for in Civ. R. 34(B), then and only then may a party move to compel production. In the instant case, the appellant erroneously filed a simultaneous request for production of documents and a motion to compel production in violation of Civ. R. 34. We thus conclude the trial court properly denied said motion. Accordingly, appellant's third assignment of error is over- ruled. Appellant's fourth assignment of error provides: IV. THE TRIAL COURT MATERIALLY AND JUDICIALLY ERRED IN DISALLOWING APPELLANT THE RIGHT TO TAKE DEPOSITIONS UPON MOTION. - 7 - Appellant argues the trial court impermissibly prevented him from taking depositions. Review of the trial court record reveals the appellant's only motion properly before the trial court regarding the taking of depositions was appellant's motion to compel the deposition of Frank Pacetta. Appellant failed to make any analogous motion regarding the depositions of Bruno Biasiotta and Ernestine Alexander. We thus will consider only the denial of appellant's motion to compel Frank Pacetta's deposition. Civ. R. 30((B)(1)) provides in relevant part: (B)(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. *** Civ. R. 30 does not address service or filing of the notice. Therefore, Civ. R. 5 must be consulted. Civ. R. 5(A) and (D) provide: (A) Service: when required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court other- wise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appear- ance, demand, offer of judgment, and similar paper shall be served upon each of the parties. *** * * * - 8 - (D) Filing. All papers, after the complaint, required to be served upon a party shall be filed with the court within three days after service, but depositions upon oral examination, interroga- tories, requests for documents, requests for admission, and answers and responses thereto shall not be filed unless on order of the court or for use as evidence or for consideration of a motion in the proceeding. Papers filed with the court shall not be considered until proof of service is endorsed thereon or separately filed. The proof of service shall state the date and manner of service and shall be signed in accordance with Rule 11. Pursuant to Civ. R. 5 and Civ. R. 30(B)(1) appellant was required to serve notice on appellee's counsel that the deposi- tion of Frank Pacetta was scheduled for July 18, 1990. Further, the appellant was required to file the notice of the deposition with the court within three days after service on appellee's attorney. In the instant case, the appellant failed to file notice of Pacetta's deposition with the court as required by Civ. R. 5(D). In the absence of the required filing or a sufficient showing that proper service was made, a court may properly presume notice had not been served. Appellant's unsubstantiated and unsworn statement contained in the body of his motion that a request to appear was served on Mr. Pacetta is insufficient to comply with the mandates of Civ. R. 5. Thus, the trial court properly denied appellant's motion to compel the deposition of Frank Pacetta. Accordingly, appellant's fourth assignment of error is over- ruled. Appellant's fifth assignment of error provides: - 9 - V. THE TRIAL COURT MATERIALLY AND JUDICIALLY ERRED IN DISALLOWING THE BEST EVIDENCE RULE, THUS ALLOWING APPELLEE TO A LEGAL ACTION WITH TAINTED EVIDENCE. Appellant argues the trial court erred in admitting Plain- tiff's Exhibit A a copy of appellant's purchase order installment agreement. Appellant's argument lacks merit. Evid. R. 1004 provides in relevant part: The original is not required, and other evidence of the contents of a writing, recording, or photo- graph is admissible if: (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the propo- nent lost or destroyed them in bad faith; or (2) Original not obtainable. No original can be obtained by any available judicial process or procedure; *** Additionally, copies of writings are admissible where the party offering the copy demonstrates that they are unable to produce the original and the copy is accurate. Hire v. Dayton Speedway Corp. (1969), 20 Ohio App. 2d 185, 187. In the instant case, Ernestine Alexander, appellee's finan- cial control manager, testified that Plaintiff's Exhibit A was a true and accurate copy of appellant's purchase order installment agreement. Further, she testified that the original was no longer available. Given Ms. Alexander's testimony, we find that Plaintiff's Exhibit A was properly admitted pursuant to Evid. R. 1004. Accordingly, appellant's fifth assignment of error is over- ruled. - 10 - Appellant's sixth assignment of error provides: VI. THE TRIAL COURT MATERIALLY AND JUDICIALLY ERRED IN DISALLOWING A JURY TO PASS UPON THE ISSUES OF FACT. Appellant again argues he was denied his right to trial by jury. Appellant's argument is not supported by the record and, therefore, lacks merit. The record clearly reveals that a jury was impanelled to hear appellant's counterclaim. It thus may not be plausibly argued that appellant was denied a jury trial. Further, the fact that the trial court directed a verdict in favor of the appellee at the conclusion of appellant's case does not constitute denial of appellant's right to trial by jury. Additionally, we find that the trial court properly directed a verdict in favor of the appellee at the conclusion of appel- lant's evidence. Civ. R. 50(A)(4) provides: (A) Motion for directed verdict. * * * (4) When a motion for a directed verdict has been properly made, and the trial court, after constru- ing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. Where there is substantial competent evidence to support the non-moving party's claim, upon which evidence reasonable minds - 11 - might reach different conclusions, the motion must be denied. Hawkins v. Ivy (1977), 50 Ohio St. 2d 114. The elements required to establish a cause of action for fraudulent inducement are set forth in Sanfillipo v. Rarden (1985), 24 Ohio App. 3d 164, 166: (1) a false representation concerning a fact material to the transactions; (2) knowledge of the falsity of the statement or utter disregard for its truth; (3) intent to induce reliance on the misrepresentation; (4) reliance under circum- stances manifesting a right to rely; and (5) injury resulting from the reliance. Construing the evidence adduced at trial most strongly in favor of appellant, we conclude that the appellant presented insufficient evidence to have his case submitted to the jury. The focus of appellant's complaint was that the appellee misrepresented that the computer equipment, in its present form, would be able to communicate with appellant's existing equipment. However, no evidence was presented which established that any of the appellee's employees represented the equipment being purchased would, as delivered, communicate with appellant's existing equipment. Rather, the evidence demonstrates that the equipment purchased had the capability of communicating with appellant's existing equipment if the equipment was upgraded with additional software. Simply stated the appellant failed to show that misrepresentations were made by the appellee which induced his purchase of the computer equipment. Thus, we conclude that - 12 - reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to the appellant. Accordingly, the trial court properly directed a verdict in favor of appellee. Appellant's sixth assignment of error is overruled. Appellant's seventh assignment of error provides: VII. THE TRIAL COURT MATERIALLY AND JUDICIALLY ERRED IN MAKING REPEATED STATEMENTS DEEMED PREJUDICIAL TO APPELLANT'S CASE. In essence, appellant argues that various statements made by the trial judge both on and off the record affirmatively estab- lish the trial judge's bias and prejudice against the appellant. Appellant's argument lacks merit. A reviewing court is bound by the reported proceedings in the lower court and cannot consider what has not been certified to it for review. Thus, to the extent that appellant's allega- tions of bias and prejudice are premised upon comments off the record, those allegations may not be considered. App. R. 12(A); see, also, State v. Bridgeman (1977), 51 Ohio App. 2d 105. Appellant also contends that the trial judge's following remarks which appear on the record demonstrate his bias and prejudice against the appellant: (1) "Do you expect to commandeer eight good citi- zens to come down here and listen to you playing your game here?" And, "Jurors are not slaves, sir." (T-8) (2) Referred to Appellee's salaried witnesses, "I hate to have these people not working today - 13 - (and) not producing for good old Xerox." (T- 53, 54) (3) "(T)he 13th Amendment abolished Slavery. You cannot order these people to come in here and sit here all morning and listen to your ranting and raving..." (T-88) (4) "If this proves to be as frivolous as I think it's going to be proved to be, the sanctions will be quite severe. Do you know what I mean be sanctions? Monetary damages, which are court ordered, which you must pay. It's not a judgment you can discharge in bankruptcy." (T-89, 90) After reviewing the entire transcript, we are not persuaded that the trial judge was biased or prejudiced against the appel- lant or that the appellant was denied a fair trial. The above statements attributed to the trial judge in no way impugn his integrity or demonstrate his inability to function in a fair or impartial manner. Accordingly, we reject appellant's contention of bias and prejudice. Appellant's seventh assignment of error is overruled. Appellant's eighth assignment of error provides: VIII. THE TRIAL COURT MATERIALLY AND JUDICIALLY ERRED IN NOT REASSIGNING THE CASE UPON WRIT- TEN REQUEST. Appellant argues the trial court erred by not removing himself from hearing appellant's case. Appellant's argument lacks merit. In the instant case appellant failed to follow the proper procedures for disqualifying a judge from hearing a case. The - 14 - proper procedures for disqualification are contained in R.C. 2701.03 which provides in pertinent part: When a judge of the court of common pleas is interested in a cause or matter pending before the court, is related to, or has a bias or prejudice either for or against, a party to a matter or cause pending before the court or his counsel, or is otherwise disqualified to sit in a cause or matter pending before the court, on the filing of an affidavit by any party to the cause or matter, or by the counsel of any party, setting forth the fact of the interest, bias, prejudice, or disqualification, the clerk of the court of common pleas shall enter the fact of the filing on the trial docket in the cause and forthwith notify the chief justice of the supreme court. The chief justice, or any judge of the supreme court designated by him, shall pass upon the disqualifi- cation of the judge pursuant to Section 5(C) of Article IV, Ohio Constitution. *** Rather than following the proper procedures for disqualifi- cation appellant sent a correspondence directly to the trial judge which stated, "if for any reason (personal or otherwise) you feel you will not be able to afford me equal rights and treatment as the Plaintiff's attorney in this case, I respectfully request you reassign the case to a mutually acceptable Judge." In light of appellant's failure to follow the proper proce- dures for disqualification contained in R.C. 2701.03, we conclude that the trial court acted properly in hearing the case. Accordingly, appellant's eighth assignment of error is over- ruled. Judgment affirmed. - 15 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J. ANN McMANAMON, J. CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .