COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71135 JIMMY CROOM Plaintiff-appellant JOURNAL ENTRY vs. AND CHRISTINE MACKEY OPINION Defendant-appellee DATE OF ANNOUNCEMENT OF DECISION: JANUARY 15, 1998 CHARACTER OF PROCEEDINGS: Civil appeal from Cleveland Municipal Court, Case No. 94-CVF-14961 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendant-appellee: WILLIAM L. BLAKE, ESQ. IRL D. RUBIN, ESQ. 840 Rockefeller Building 35401 Euclid Avenue, Suite 101 614 Superior Avenue, N.W. Willoughby, Ohio 44094 Cleveland, Ohio 44113-1306 JEFF PAXTON, ESQ. Tower at Erieview 1301 East 9th Street, 9th Floor Cleveland, Ohio 44114-1802 -2- KARPINSKI, J.: Plaintiff-appellant, Jimmy Croom, appeals from the judgment of the trial court which (1) declined to impose a constructive trust upon defendant, Christine Mackey, and (2) imposed court costs upon Croom. Croom filed the case in an attempt to satisfy an unpaid judgment he previously obtained against Mackey's ex-husband. Having found no merit to Croom's assignments, we affirm the judgment of the Cleveland Municipal Court. The relevant facts follow: Croom contracted with Winfred H. Mackey d.b.a. DNM Inc., to demolish and replace the porch on Croom's house. In April and May of 1993, Croom gave two checks to Winfred Mackey, one for $1,500.00 and another for $400.00. Winfred Mackey endorsed both checks to his ex-wife, Christine Mackey. Both checks were deposited in her account at Dollar Bank. Winfred Mackey never performed the work on the porch. Thereafter, Croom obtained a judgment in Cleveland Municipal Court against DNM Inc. and Winfred Mackey in the amount of $1,900.00. Croom's attempts to satisfy this judgment were unsuccessful. Taking another route to collect this judgment, Croom filed the within action against Christine Mackey. In the complaint Croom alleged that Winfred Mackey deposited the $1,900.00 in Christine Mackey's account and, therefore, she holds the money in trust for Croom. After filing this action, Croom sought to procure Christine Mackey's bank records. On July 26, 1995, Croom filed a motion for -3- an order from the trial court directing Dollar Bank to provide any records relative to Christine Mackey's account. Granting this motion, the court issued the order the same day. Less than a month later, Croom filed a motion to show cause because Dollar Bank had not provided the requested information. The trial court then ordered counsel for Dollar Bank to appear at a hearing on September 8, 1995 and show cause why he should not be held in contempt for failing to provide the records. Dollar Bank asked for relief from this order because it did not want to expend substantial time and resources without assurances from Croom's counsel that the bank would be reimbursed for its expenses. Attached to this motion was the affidavit of the bank's records custodian, Michelle Thomas, who averred that the expense of obtaining these records would be in excess of $1,500.1 Dollar Bank cited R.C. 9.02, which provides that any party requesting a financial institution to assemble or provide customer records must pay the financial institution for the costs of compiling the information. Croom responded that the bank is subject to the order of the court. The decision of the magistrate was to order the bank to compile the records and submit an itemized bill to the court. Affirming the magistrate's decision, the court held that, under R.C. 9.02, the bank is entitled to payment of its expenses upon submission of an invoice itemizing the costs of reproducing the records. 1 These expenses were based on the rates specified by the Right to Financial Privacy Act of 1978, 12 U.S.C. 3415: $2.00 per retrieval of each check, $.25 per page of photocopy, and $10.00 per hour of research. -4- The records were hand delivered on January 22, 1996. On January 30, 1996, Dollar Bank filed a motion to show cause and for contempt because Croom had not paid for the records provided. The itemized bill totaled $1,287.25. He responded by arguing that Christine Mackey should pay for these charges. He also filed a cross-motion for sanctions against Dollar Bank's attorney. On March 11, 1996, the matter was scheduled for trial.2 In an order journalized on April 17, 1996, the trial court, approving and confirming the decision of the magistrate, found for Christine Mackey and adjudged costs against Croom. On April 12, 1996, however, Croom had previously filed a request for findings of fact and conclusions of law; on April 23, 1996 he filed objections to the magistrate's decision. Subsequently, the magistrate issued findings of fact and conclusions of law on June 27, 1996. In a judgment entry journalized on July 22, 1996, the trial court approved the magistrate's decision. This judgment entry (1) denied the request to impose a constructive trust upon Christine Mackey, (2) ordered Croom to pay Dollar Bank for the requested documents, (3) held that the fee Dollar Bank requested was reasonable, (4) held in abeyance Dollar Bank's motion to show cause and for contempt, and (5) found moot Croom's motion to show cause against Dollar Bank and Jeff Paxton. From this order, Croom appealed on August 15, 1996. Dollar Bank responded that no final appealable 2 The docket does not indicate whether a hearing was held on March 11. Nor does the record contain the magistrate's recommendation. -5- order existed because the court still retained jurisdiction ove Dollar Bank's motion for contempt. trial court heard Dollar Bank's motion on September 3, 1996.3 Thereafter, the trial court, stating it still had jurisdiction over the motion, found Croom's attorney in contempt in the amount of $200.00.4 In response to Croom's request, the courtrThe issued its findings of facts and conclusions of law on December 16, 1996. The court again stated that it had the power to order the bank to produce the records and that Croom's counsel was liable for the payment of the records. This decision was signed by both the magistrate and the trial judge. Croom's first assignment states as follows: I. THE MAGISTRATE ERRED IN FAILING TO HAVE ANY MEANS WHATEVER TO RECORD TESTIMONY IN ORDER TO PREPARE A RECORD. In this assignment, Croom argues that the trial court erred by not recording the testimony presented to the magistrate. This assignment lacks merit. Civ.R. 53(D) provides as follows: (D) Proceedings. (1) All proceedings before the magistrate shall be in accordance with these rules and any applicable statutes, as if before the court. 3 The trial court had jurisdiction over the bank's motion for contempt. Generally, the filing of a notice of appeal divests the trial court of jurisdiction over the case. State ex rel. Continental Cas. Co. v. Birrell (1955), 164 Ohio St. 390. However, the trial court may retain jurisdiction over issues not inconsistent with that of the appellate court to review, affirm, modify or reverse the appealed judgment, such as collateral issues like contempt, appointment of a receiver and injunction. State ex rel. Special Prosecutors v. Judges (1978), 55 Ohio St.2d 94, 97. 4 Croom never appealed this judgment. -6- (2) Except as otherwise provided by law, all proceedings before the magistrate shall be recorded in accordance with procedures established by the court. (Emphasis added.) This rule empowers each court to determine the procedures for recording hearings before the magistrate. Cleveland Municipal Court Local Rule 8.02 states as follows: Any party desiring a record of proceedings in a civil case before a magistrate may arrange for the attendance of a private court reporter at said party's cost pursuant to Local Rule 12.01. Thus the Cleveland Municipal Court places the burden on the litigants to request the recording of proceedings before a magistrate. In the case at bar, there is no record of any such request. Accordingly, Croom's first assignment of error is overruled. His second assignment states as follows: II. THE COURT ERRED IN ASSESSING COSTS FOR PREPARATION OF BANK'S RECORDS, CANCELED CHECKS, WITHOUT ANY TESTIMONY WHATEVER AS TO ACTUAL COSTS. In this assignment, Croom argues that he should not bear the costs of producing the bank records. Generally, a decision to award costs is left to the sound discretion of the trial court. Vance v. Roedersheimer (1992), 64 Ohio St.3d 552. In the case at bar Croom asked the bank for the records. Revised Code 9.02(B) covers the costs of requesting bank records for litigation and states as follows: (B) Any party, including a governmental authority, that requires or requests a financial institution to assemble or provide a customer's financial records in connection with any investigation, action, or proceeding shall pay the financial institution for all actual and necessary costs directly incurred in searching for, -7- reproducing, or transporting these records, if the financial institution is not a party to the investigation, action, or proceeding, is not a subject of supervisory review in the investigation, action or, or proceeding, or is a party to the investigation, action, or proceeding solely by reason of its holding of assets of another party defendant, with no cause of action alleged against the financial institution. This payment shall be made to the financial institution promptly, whether or not the financial records are entered into evidence. If the records are produced pursuant to a court order or subpoena duces tecum, the party requesting the order or subpoena is responsible for making the payment. With respect to any judicial or administrative proceeding for which the records are requested, payment of these costs shall be in addition to any witness fees. Under the clear language of this statute, therefore, the trial court did not err in ordering Croom to pay the bank $1,287.25, the costs of the production of the bank records. Croom additionally argues that the trial court erred by assessing costs without testimony on the actual costs of producing the bank records. This argument fails. The bank submitted the affidavit of Michelle Thomas, the records custodian for Dollar Bank, who averred that the invoice attached to her affidavit represented the actual time spent and costs the bank's employees incurred locating and retrieving the requested bank records. The invoice stated the research and reproduction charges as follows: Search Time (@$10.00/ HR.) 25.5 Hours $255.00 Reproduction Costs (@0.25c[sic]/ Copy) 9 copies $2.25 Mailing Cost [left blank] Check Reproduction (@$2.00/Check) 515 Checks $1,030.00 TOTAL: 1,287.25 In his findings of fact and conclusions of law, dated November 25, 1996, the magistrate stated that the number of canceled checks -8- placed into evidence, along with the affidavit of the bank employee, was sufficient evidence to determine the reasonableness of the costs of reproduction. Ohio law does not require a party seeking costs to support the request via live testimony as opposed to an affidavit and invoice. See generally, Hardesty v. Corrova (1986), 27 Ohio App.3d 332; AMF, Inc. v. Mravec (1981), 2 Ohio App.3d 29. Therefore, the trial court did not abuse its discretion in awarding costs. Croom's third assignment of error states as follows: III. THE COURT ERRED IN ITS FAILURE TO ASSESS DAMAGES IN FAVOR OF PLAINTIFF'S COUNSEL AS A CONSEQUENCE OF THE SPURIOUS MOTION FILED BY DOLLAR BANK. In this assignment, Croom argues that the trial court erred in overruling his motion to assess damages against Dollar Bank. Croom argued that he was entitled to damages because he had to respond to the bank's spurious motion regarding the payment of expenses for the production of records. As we stated supra, the trial court did not abuse its discretion in ordering Croom to pay for Dollar Bank's expenses. Thus Dollar Bank's motion was not spurious, and Croom should not be awarded damages merely because he had to respond to this motion. This assignment is overruled. Croom's fourth assignment states as follows: IV. THE COURT ERRED IN FAILING TO FIND JUDGMENT AGAINST THE DEFENDANT WHO CONCEALED ASSETS OF HER JUDGMENT DEBTOR HUSBAND. In this assignment, Croom argues that the trial court erred by not imposing a constructive trust upon the money in Christine Mackey's bank account. Generally, -9- [a] constructive trust is a trust created by operation of law against the holder of a legal right to property which that person should not, in equity and good conscience, hold or enjoy; it is a relationship associated with property subjecting the title holder to an equitable duty to convey it to another because otherwise the title holder would be unjustly enriched. Black's Law Dictionary (6 Ed.1990) 314-315; see, also, Ferguson v. Owens (1984), 9 Ohio St.3d 223, 9 OBR 565, 459, N.E.2d 1293. A constructive trust will not attach to property acquired by a bona fide purchaser one who acquires title to property for value and without notice of another's equitable interest in that property. See In re Bell & Beckwith (C.A.6, 1988), 838 F.2d 844, 845, citing Restatement of the Law, Restitution (1937), Section 172(1). Union S.&L. Assn. v. McDonough (1995), 101 Ohio App.3d. 273, 276. The Ohio Supreme Court quoted Justice Cardozo's description of a construction trust as follows: A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee. *** A court of equity in decreeing a constructive trust is bound by no unyielding formula. Ferguson, supra at 225-226, quoting Beatty v. Guggenheim Explorations Co. (1919), 225 N.Y. 380, 122 N.E. 378. In Ohio, a constructive trust must be proven by clear and convincing evidence. Hill v. Irons (1953), 160 Ohio St. 21. When the law requires proof by clear and convincing evidence, the evidence in the record must be sufficient to establish in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. Cross v. Ledford (1954), 161 Ohio St. 469. In the case at bar, the trial court overruled the objections and accepted the magistrate's judgment that Croom failed to establish a constructive trust. Croom's assignment vaguely argues -10- that this judgment is against the weight of the evidence. This court will not disturb the trial court's decision as against the manifest weight of the evidence, however, if the decision is supported by some competent credible evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. The record before this court is insufficient to reverse the judgment of the trial court, because Croom failed to establish by clear and convincing evidence that Winfred Mackey operated his business through Christine Mackey. No transcript of the lower court proceedings has been provided. The only evidence presented is an envelope of a number of photocopied checks made out to Winfred Mackey. Alone, this evidence is insufficient to warrant the imposition of a constructive trust. No evidence has been presented that establishes a willful scheme by using the account of Christine Mackey to defraud creditors. No evidence has been presented, moreover, to establish that Christine Mackey knew that the $1,900 she received from Winfred Mackey was money received for services never provided. Nor was any evidence presented to indicate the circumstances under which she received the money. The mere pattern of receiving checks, however suspicious, does not require the conclusion she was unjustly enriched. Accordingly, this assignment is overruled. Judgment affirmed. -11- 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 Cleveland 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. JAMES D. SWEENEY, C.J., and PORTER, J., CONCUR. DIANE KARPINSKI JUDGE 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 of decision by the .