COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71007 JAMES D. HARRIS, ET AL. : : : : JOURNAL ENTRY Plaintiff-Appellants: : AND vs. : : OPINION RICHARD H. BURGER, ET AL. : : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: JULY 31, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-248222 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellants: GERALD J. PATRONITE Gerald J. Patronite Co., L.P.A. 34950 Chardon Rd., Suite 210 Cleveland, Ohio 44094-9103 For Defendant-Appellees: FRANK J. GROH-WARGO MARK FUSCO Wargo and Wargo 30 Park Drive P.O. Box 332 Berea, Ohio 44017 - 2 - O'DONNELL, P.J.: James and Hyeon Harris, as purchasers of a single family residence located at 17072 Racoon Trail in Strongsville, Ohio, appeal from a bench trial judgment in favor of Richard and Louise Burger, as sellers, in connection with their claims for fraud and breach of contract arising out of the sale of the property. This is the second time this case has been appealed to our court. In Case No. 68303, we reversed the summary judgment granted by the trial court and remanded the matter for further proceedings, specifically in connection with the breach of contract claim and as to fraudulent misrepresentation and concealment of the defective garage slab and foundation slab. Following our remand of the case, appellants filed a jury demand, but the court granted appellees' motion to strike because it had not been timely filed. The court then tried the case sitting without a jury, considered all claims and evidence presented by appellants, and entered judgment for appellees. On appeal, four assignments of error are presented for our review. The first two state as follows: I. THE TRIAL COURT ERRED IN FAILING TO FOLLOW THE EIGHTH DISTRICT COURT OF APPEALS' MANDATE TO CONDUCT PROCEEDINGS CONSISTENT WITH ITS JOURNAL ENTRY AND OPINION ("OPINION") OF AUGUST 24, 1995. - 3 - II. THE TRIAL COURT ERRED IN ITS FAILURE TO FAMILIARIZE ITSELF WITH THE COURT'S OPINION AND THEREBY FAILED TO CONSIDER EVIDENCE IN BREACH OF CONTRACT REGARDING ILLEGAL AND UNSUPERVISED STRUCTURAL REPAIRS AND CONSEQUENTIAL DAMAGES, TO MAKE REASONABLE INFERENCES, AND TO APPLY THE LAW ENUNCIATED IN LAYMAN V. BINNS AND ITS CASELAW PRECEDENT AND PROGENY. Appellants essentially contend that the trial court failed to follow our mandate to conduct further proceedings consistent with our earlier issued opinion and that the court failed to apply the law as stated in Layman v. Binns (1988), 35 Ohio St.3d 176. The appellees urge that by conducting trial, the court followed the instructions of our court and correctly applied the law. Thus, the issue presented for review concerns whether the trial court followed the mandate of this court. Upon review of the record in this case, the trial court conducted a trial in conformity with the directions of our court, giving appellants an opportunity to present relevant evidence concerning the matters then before the court. In Layman v. Binns, supra, the court stated in its syllabus: The doctrine of caveat emptor precludes recovery in an action by the purchaser for a structural defect in real estate where (1) the condition complained of is open to observation or discoverable upon reasonable inspection, (2) the purchaser had the unimpeded opportunity to examine the premises, and (3) there is no fraud on the part of the vendor. - 4 - Thus, the court there articulated a three-part test for determination of the application of the doctrine of caveat emptor. We do not find error in the conduct of the trial, in application of Layman v. Binns, supra, to these facts, or in the findings of fact and conclusions of law, which suggest the court completely considered all relevant evidence and issues presented. Accordingly, these assignments of error are overruled. III. THE TRIAL COURT'S ARBITRARY AND INSULTING PREDIS- POSITION TO PLAINTIFFS' CASE DENIED PLAINTIFFS THE PROCEDURAL DUE PROCESS OF LAW MANDATED IN THE OPINION AND THE CONSTITUTION OF THE STATE OF OHIO. Appellants contend that the court had a predisposition against them from opening statement to closing argument manifested by the judge's shuffling of papers, strumming of fingers, stare at the courtroom clock, and his statement to "continue" during a pause in counsel's opening statement. Further, they argue that the court's bias is evidenced by its rulings throughout the trial relevant to objections and exclusion of exhibits, all of which culminated in a denial of their procedural due process. The appellees submit, however, that since a judge is presumed not to be biased, and the record in this case does not evidence these allegations, the presumption of judicial integrity prevails. - 5 - In Okocha v. Fehrenbacher (1995), 101 Ohio App.3d 309, at 322, our court stated: * * * [A] trial judge is presumed not to be biased or prejudiced, and the party alleging bias or prejudice must set forth evidence to overcome the presumption of integrity. [Citations omitted.] The existence of prejudice or bias against a party is a matter that is particularly within the knowledge and reflection of each individual judge and is difficult to question unless the judge specifically verbalizes personal bias or prejudice toward a party. [Citations omitted.] A judge's rulings of law are legal issues subject to appeal, and are not by themselves evidence of bias or prejudice that will provide grounds for disqualification of the judge. [Citations omitted.] Further, we are cognizant of the provisions of Local App.R. 4(B) which state in part: (B) If a transcript of proceedings [Appellate Rule 9(B)] is necessary to portray the errors to be assigned on the appeal, it is the appellant's responsibility to have the transcript or a statement of the evidence or proceedings [Appellate Rule 9(C)] timely prepared and delivered to the clerk of the trial court for transmission to the clerk of the Court of Appeals. * * *. * * * (D) Failure of the appellant to file a praecipe, to secure the transmission of the docket and journal entries and to arrange for the transmission of the transcript of proceedings, shall be construed as a failure to prosecute the appeal and be grounds for dismissal. * * * Here, appellants have not provided a transcript of either the opening statements or closing arguments of counsel for our review. Hence, we are unable to review that portion of the - 6 - proceedings specifically complained of at trial, and accordingly find no merit to this argument. Further, the portion of the record that counsel did provide does not reveal either bias or prejudice on the part of the trial court. Regarding the court's evidentiary rulings, we note that "*** dissatisfaction or disagreement with a judge's rulings of law are legal issues subject to appeal. A judge's opinion of law, even if later found to be erroneous, are not by themselves evidence of bias or prejudice ***." In re Disqualification of Corts (1988), 47 Ohio St.3d 601, 602. Because appellants failed to specifically assign as error any specific ruling of the trial court, we are unable to specifically address this contention but do not find reversible error in the court's rulings. Accordingly, this assignment of error is overruled. IV. THE TRIAL COURT ERRED BY DENYING PLAINTIFFS A JURY TRIAL BEFORE ANY TRIAL DATE WAS SET DESPITE RENEWED AND TIMELY DEMANDS. Appellants contend the court erred by denying their written and oral motions for jury trial which they made at pretrial and argued prior to trial and renewed on the day of trial. Appellees urge the court correctly denied the request for jury because it failed to conform to the requirements of Civ.R. 38 in that it had not been a timely jury demand. - 7 - The issue for our determination is whether the trial court properly granted the defendants' motion to strike the plaintiffs' jury demand pursuant to Civil Rule 38. Civil Rule 38(B) states, in pertinent part: Any party may demand a trial by jury on any issue triable of right by a jury by serving upon the other parties a demand therefor at any time after the commencement of the action and not later than fourteen days after the service of the last pleading directed to such issue. Such demand shall be in written and may be indorsed upon a pleading of the party. (Emphasis added.) Further, Civil Rule 38(D) states that failure to comply with Civil Rule 38(B) constitutes a waiver of a party's right to trial by jury. A review of the record in this case reveals that the plaintiffs filed a motion on February 21, 1996 for jury view of premises and endorsed a jury demand thereon, although no time stamp copy of that document is contained in the record. The record further reveals that the defendants filed the last pleading on the issue, a supplemental answer, on August 3, 1993 and service was obtained on that same date. Based upon these dates, the plaintiffs' jury demand occurred well over fourteen days after the service of the last pleading on the issue. Therefore, since the plaintiffs failed to file a timely jury demand in this case, the trial court properly granted defendants' motion to strike the demand and accordingly, this assignment of error is also without merit. Judgment affirmed. - 8 - 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 Common Pleas 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. KARPINSKI, J., and SPELLACY, J., CONCUR PRESIDING 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 .