COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69809 SHIRLEY AVENI : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DONALD HOWELLS : : Defendant-appellant : PER CURIAM : DATE OF ANNOUNCEMENT : MAY 30, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Euclid Municipal Court : Case No. 95-CVI-786 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: SHIRLEY AVENI, PRO SE ROBERT J. WILLIS, ESQ. 7155 North Downing Place Suite 208 Concord, OH 44077 5001 Mayfield Road Lyndhurst, OH 44124 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas and the briefs and oral arguments of counsel. Defendant-appellant Donald Howells appeals from a Euclid Municipal Court's order granting judgment for plaintiff-appellee Shirley 1 Aveni in the amount of $1,506.56 for unpaid bills. On May 22, 1995 plaintiff filed her complaint in the Euclid Municipal Court, Small Claims Division for the alleged nonpayment of telephone bills. This matter was heard before a referee on August 24, 1995. The referee found that plaintiff loaned her brother money by paying his GTE Mobile Net bills so that his service could be maintained. At trial, plaintiff produced 7 credit card receipts and payments indicating charges totaling $1,506.56. Plaintiff testified defendant was in arrears on his phone charges for months and that he asked her to pay these bills to prevent shut off. Plaintiff paid these bills and defendant refused to pay her back. Defendant stated he only asked plaintiff to pay one bill in the amount of $80.00. Defendant admitted that plaintiff paid some of his bills but could not verify which bills were paid because he failed to bring any of his telephone bills to court. The referee recommended judgment for plaintiff in the amount of $1,506.56 plus costs. This recommendation was based on plaintiff meeting her burden of proof by providing credit card 1 Plaintiff and defendant are sister and brother. - 3 - receipts as evidence of defendant's unpaid bills and defendant failing to provide evidence in his defense while acknowledging that plaintiff had paid some of his bills. Over the objections of the defendant, Euclid Municipal Court adopted the referee's report and granted judgment for plaintiff. Defendant appeals Euclid Municipal Court's journal entry granting judgment for plaintiff. Defendant submits three argument in support of his appeal. First, that plaintiff failed to comply with Civ. R. 10(D) by not attaching copies of the accounts to her complaint. Second, that plaintiff failed to produce any bills at trial to substantiate her claim of unpaid bills. Third, that the trial court erred in failing to conduct an independent analysis of defendant's objections to the referee's report pursuant of Civ. R. 53(D)(4)(B). I. Defendant argues plaintiff's complaint was unaccompanied by any copies of the unpaid accounts and according to Civ. R. 10(D) the complaint should have been dismissed. Ohio Rule of Civil Procedure 10(D) provides: (D) Copy must be attached. When any claim or defense is founded on an account or other written instrument, a copy thereof must be attached to the pleading. If not so attached, the reason for the omission must be stated in the pleading. Plaintiff did not attach any copies of bills or account statements to her small claims complaint. However, because - 4 - defendant did not file a Motion to Dismiss or a Motion for Definite Statement this argument has no merit. In Point Rental Co. v. Posani (1976), 52 Ohio App. 2d 183, the court held that if a plaintiff fails to comply with Rule 10(D) it is error for the trial court to dismiss the action. The court went on to say "[t]he proper procedure in attacking the failure of a defendant to attach a copy of a written instrument or to state a valid reason for his failure to attach same is to serve a motion for a definite statement, pursuant to Civ. R. 12(E)." Id at 186. Although it is true plaintiff failed to attach the proper documentation to her complaint, defendant failed to properly address this omission and the trial court did not err in not dismissing the complaint. Furthermore, in Barksdale v. Van's Auto Sales, Inc. (1988), 38 Ohio St. 127, 128, the Ohio Supreme Court affirmed the longwithstanding tenet of Ohio Jurisprudence, that cases should be determined on their merits and not on mere procedural technicalities. For the abovementioned reasons, defendant's first argument is overruled. II. Defendant's second argument is the plaintiff failed with her burden of proof at trial to provide the bills from the telephone company. Thereby, failing to substantiate her claim that she paid defendant's phone bills. Defendant does not deny the existence of a contract between - 5 - himself and plaintiff. The referee found defendant admitted plaintiff paid some of his bills, acknowledging there was a contract between the two whereby plaintiff would pay some of his bills. The referee then found; plaintiff produced 7 credit card receipts and payments indicating charges totaling $1,506.56 paid on behalf of defendant; plaintiff stated defendant was in arrears on his phone charges, that he asked her to pay these bills to prevent shut off; that defendant refused to repay her; and defendant presented no evidence to show he paid any of these bills. Defendant's refusal to repay plaintiff is a breach of their contract. While defendant argues he paid some of the bills and there was no breach of contract, he failed to substantiate this claim with any evidence. It is a well established principle that a reviewing court is guided by a presumption of correctness of the trial court proceedings and judgment. Seasons Coal v. Cleveland (1984), 10 Ohio St.3d 77, 80. This court has reviewed the record, the objections, and brief, and finds competent, credible, evidence to support the findings of the referee. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Defendant's second argument is overruled. - 6 - III. Defendant's third argument is the trial court failed to conduct an independent analysis because the judge signed a journal entry on the same day the trial took place. The record reveals this matter was heard before a referee on August 24, 1995. On the same day, an initial journal entry was issued from the court noting both parties appeared and the trial went forward with judgment granted in favor of plaintiff. Defendant then filed objections to the referee's report on September 6, 1995. Subsequently, on September 28, 1995, the report of the referee was filed with notice to all parties. Defendant again filed objections. Over these objections, the court issued a final journal entry with judgment for the plaintiff on October 13, 1995. In this final journal entry the court specifically stated: "Report of Small Claims Referee approved and confirmed. Defendant's objection to Referee's Report is overruled. Judgment is rendered for plaintiff and against defendant for $1,506.56 and costs. So ordered." Defendant argues the trial court, "as required by Civil Rule 53(D)(4)(b)," must conduct an "independent analysis of the objections to a Referee's Report." Defendant bases his argument on a civil rule that does not exist. There is no Civ. R. 53(D)(4)(b). However, defendant's argument that trial court's must conduct an independent analysis is not illusory. In Hartt v. Munobe (1993), 67 Ohio St. 3d 3, 6, the Ohio Supreme Court addressed the trial court's duty to conduct an independent review and stated: "A - 7 - trial judge who fails to undertake a thorough independent review of a referee's report violates the letter and spirit of Civ. R. 53 * * *." A referee's findings of fact, conclusions of law, and any other additional rulings are "all subject to the independent review of the trial judge." Id. In this case, the October 13, 1995 journal entry delineated the trial court affirmed the referee's report and overruled the defendant's objections to the referee's report. Such language in the journal entry indicates the trial court complied with its duty to conduct an independent analysis of the referee's report. As such, defendant's third argument is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant her 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 Euclid Municipal Court 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. JOHN T. PATTON, JUDGE ANN DYKE, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE 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, .