COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70852 GORDON S. BRUCE : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION ROBERT S. PAVLIK : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 17, 1997 CHARACTER OF PROCEEDING: Civil appeal from Euclid Municipal Court Case No. 96-CVE-196 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: GORDON S. BRUCE, Pro Se 2360 Loyola Road University Heights, Ohio 44118 For Defendant-Appellee: JOHN M. MANOS D. KIM STEFANSKI JAMES A. NEFF Manos, Pappas & Stefanski Co., LPA 34950 Chardon Road, Suite 206 Willoughby Hills, Ohio 44094 JOSEPH R. GIANCOLA 1833 East 225th Street Euclid, Ohio 44117 - 2 - O'DONNELL, J.: Gordon Bruce, Esq., pro se, appeals from a judgment of the Euclid Municipal Court which approved and confirmed a directed verdict issued by the magistrate who heard the case in favor of Robert Pavlik, Controller of The Cadle Company, on Bruce's claim that Pavlik had defamed him by writing a letter to the Ohio Bureau of Employment Services (OBES) alleging Bruce defrauded that agency by collecting unemployment benefits while working for the National Adjustment Bureau. The record before us reflects that The Cadle Company employed Bruce as an attorney from June, 1990 until June 20, 1994; Bruce received unemployment benefits from that date until September 20, 1994 when he began employment with the National Adjustment Bureau. Because National Adjustment eliminated his position on December 30, 1994, Bruce again collected unemployment compensation until March 31, 1995, when he accepted a position at National Collection Service where he is currently employed. The record further reveals that when Pavlik realized that Bruce stopped filing unemployment claims on September 29, 1994, but renewed filing them on December 30, 1994, he suspected Bruce fraudulently collected these payments on the Cadle Company's account. In an effort to confirm his suspicion, on March 16, 1995, he wrote a letter to the OBES stating that Bruce's actions constituted unemployment compensation fraud and that the Cadle - 3 - Company wished to pursue actions on the matter to recoup the funds paid to Mr. Bruce. When Bruce learned of the existence of this letter, he sued Pavlik in the Euclid Municipal Court for defamation. On March 25, 1996, in preparation for the April 12 trial, Bruce filed praecipes seeking issuance of a subpoena duces tecum to the Ohio Bureau of Employment Services and issuance of a separate subpoena to Kelly Shearer at the National Adjustment Bureau; the clerk prepared and issued the subpoenas to the Summit County Sheriff, but the record does not reflect either service or a return thereof in the file. Subsequently, on April 12, 1996, when the magistrate called the case for trial, Bruce reported to the magistrate that he had received a letter from an assistant attorney general indicating that no one from the OBES would appear at trial, and that Kelly Shearer of the National Adjustment Bureau had also not appeared for trial. The magistrate stated that subpoena compliance was Bruce's business and further stated, "There will be no continuance." At trial, in his case in chief, Bruce examined Pavlik as if on cross-examination and he himself testified in the narrative. At the close of Bruce's case in chief, the magistrate directed a verdict in favor of Pavlik, and filed findings of fact and conclusions of law on April 25, 1996. Bruce then filed objections to the magistrate's decision on May 8, 1996, which the trial court overruled when it approved and - 4 - confirmed the decision of the magistrate and entered judgment for Pavlik on May 17, 1996. Pavlik then filed a motion for sanctions seeking an award of attorney fees for frivolous conduct in prosecution of the case. Bruce appealed from the court's judgment affirming the magistrate's decision and assigned three errors for our review; pending appeal, the magistrate stayed ruling on the motion for sanctions. I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR CONTINUANCE. II. THE TRIAL COURT ERRED IN HOLDING THAT APPELLANT HAD FAILED TO PROVE INJURY OR DAMAGES. III. THE TRIAL COURT ERRED IN FINDING THAT R.C. 4141.21 WAS APPLICABLE TO THIS CASE. In the three assignments of error presented on this appeal, Bruce seeks to attack the judgment of the Euclid Municipal Court as erroneous and further seeks a determination that the court abused its discretion in approving and confirming the decision of the magistrate who heard the matter. In cases of this distinction, our standard of review is twofold: first, determine whether, based upon the transcript of - 5 - proceedings and other parts of the record, the trial court followed the law, and second, to determine whether the court abused its discretion in approving and confirming the action of the magistrate. Specifically, attacking the magistrate's refusal to continue the trial date, Bruce alleges error in denying the continuance. Pavlik, on the other hand, suggests that because appellant failed to proffer the testimony of the witnesses he intended to present, the record is incomplete as to the substance of their evidence and, therefore, this court has no basis to determine whether or not the court abused its discretion in affirming the decision of the magistrate. Generally, matters involving the continuance of trial are left to the sound discretion of the trial court. See State v. Sowders (1983), 4 Ohio St.3d 143. Further, in considering whether a trial court has abused its discretion in granting or denying a continuance, the Ohio Supreme Court endorses the use of a balancing test that "*** weighed against any potential prejudice to a defendant are concerns such as a court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice." State v. Unger (1981), 67 Ohio St.2d 65, 67. Here the record reflects that on February 29, 1996, the court scheduled the matter for trial before the magistrate and issued notice to the parties. This early notification by the court empowered all parties to act - 6 - reasonably in securing witnesses and evidence for trial which entitled the court to enforce its scheduled trial date. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is "unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When, on the day of trial Bruce presented a letter suggesting non-appearance of a witness, he neither presented evidence of service on the witness nor sought a body attachment or otherwise sought help from the court to compel attendance of the witnesses. Under these circumstances, we cannot determine an abuse by the court in confirming the decision of the referee. In the next two assignments of error, Bruce urges the court should not have approved or confirmed the decision because the magistrate incorrectly found R.C. 4141.21 applied to this case and improperly concluded, "there was no evidence of damages." Specifically, we are invited to analyze R.C. 4141.21 to determine whether the letter Pavlik wrote to OBES constitutes admissible evidence and whether Bruce presented evidence of damage resulting from the false statements contained in that letter. We begin with a review of the statute. R.C. 4141.28 states in relevant part: *** The information furnished to the administrator of the bureau of employment services by employers or employees pursuant to this chapter is for the exclusive use and information of the bureau of employment services in discharge of its duties and shall not be open to the public or be used in any - 7 - court in any action or proceeding pending therein, or be admissible in evidence in any action ***. While Bruce argues the language used in the statute ought to be construed to mean only the information furnished to OBES upon request of that agency, we do not read that restriction into the statute and decline to limit construction of this statute in that fashion. Clearly, this section of the code contains an evidence exclusion provision which precludes the court from admitting into evidence any information furnished to OBES pursuant to this chapter. Accordingly, Pavlik's letter to the OBES constituted information furnished to the OBES, and the magistrate did not err in applying R.C. 4141.21 to this case. The magistrate did err, however, in making findings of fact 5, 6 and 7, which relate to and quote from this inadmissible evidence; accordingly, the court erred in approving these findings, but not in approving and confirming the decision. We further note that since R.C. 4141.21 only apples to information furnished to OBES, other publication of this information would not be subject to similar exclusion. Hence, Pavlik is fortunate Kelly Shearer did not honor the subpoena and the court must seriously consider these implications in the pending motion for sanctions. Finally, we note that Bruce correctly argues his entitlement to damages, but we further note this is a moot point because of the evidence exclusion contained in R.C. 4141.21. However, the trial court is further instructed to consider the validity of - 8 - Bruce's position in connection with its ruling on the motion for sanctions. The judgment of the trial court is affirmed. It is ordered that appellee(s) recover of appellant(s) 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. DYKE, P.J., and SPELLACY, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .