COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73003 MICHELE EARLEY ) ACCELERATED DOCKET ) Plaintiff-Appellant ) JOURNAL ENTRY ) -vs- ) AND ) CUYAHOGA METROPOLITAN ) OPINION HOUSING AUTHORITY ) ) Defendant-Appellee ) ) PER CURIAM Date of Announcement of Decision: JANUARY 22, 1998 Character of Proceeding: Civil appeal from Cleveland Municipal Court Case No. 97-CVI-05253 Judgment: AFFIRMED Date of Journalization: Appearances: For Plaintiff-Appellant: For Defendant-Appellee: MICHELE EARLEY, PRO SE SUSAN M. BUNGARD, ESQ. 11316 Tuscora, Suite 2 1441 West 25th Street Cleveland, Ohio 44108 Cleveland, Ohio 44113 -2- PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Plaintiff-appellant Michele Earley, pro se, appeals from the judgment of the Small Claims Division of Cleveland Municipal Court denying her claim against the defendant-appellee Cleveland Metropolitan Housing Authority ( CMHA ) for destruction of personal property as the result of a fire at her CMHA apartment. Plaintiff claims that the trial court erred in directing a verdict in favor of CMHA and in not awarding her 10% interest. Plaintiff's pro se brief may also be construed as contending that the judgment was against the manifest weight of the evidence. Following a review of the entire record, we are compelled to affirm the judgment below. On March 3, 1997, plaintiff filed a small claims action in the Cleveland Municipal Court against defendant CMHA alleging that [d]ue to the negligence of Defendant, who failed to contact the fire department, plaintiffs [sic] personal property was destroyed by fire. Plaintiff's claim was heard on May 2, 1997 before a magistrate. Plaintiff presented her testimony and evidence and CMHA then did the same. There is no transcript of the hearing in the record nor an App.R. 9(C) statement. However, the findings of fact in the magistrate's report state that the following evidence was presented. -3- Plaintiff was a month-to-month CMHA tenant at the Garden Valley Estates. Her apartment was located in a three story walk-up at 3014 East 73rd Street, Apartment 390, Cleveland, Ohio. Plaintiff was absent from her apartment from early February until March 17. Sometime during her absence, a fire occurred in her apartment bedroom as the result of a mattress being set on fire. Upon her return in March, plaintiff discovered that most of her belongings were either destroyed in the fire or had been removed from the apartment. Following unsuccessful attempts to get CMHA to reimburse her for her loss, plaintiff brought the instant claim. Plaintiff testified that the fire occurred on March 9, 1996, but CMHA records showed the fire occurred on February 7, 1996. According to a letter faxed by the Statistical Unit of the Fire Department to the Magistrate during the hearing, the fire department had no record of being at the scene on either date. Although the date of the fire was in question, there was no dispute that the fire had actually occurred. The Magistrate also found that [b]oth sides agreed the Cleveland Fire Department was called and handled the fire. Plaintiff testified that she notified CMHA agents in January 1996 that her apartment keys had been stolen and she requested a new lock. CMHA, however, presented evidence in the form of its work order inquiry records, which indicated plaintiff had a history of losing her keys. Plaintiff presented a handwritten list of the items that she alleged were lost during the fire. Although she submitted her own personal valuation of the items, no receipts were -4- submitted to support her valuation. Defendant's witnesses testified that at the time of the fire no one was living in the apartment and that there was limited personal property on the premises. On June 5, 1997, the magistrate rendered a decision in favor of CMHA with findings of fact and conclusions of law holding that plaintiff failed to prove her claim by a preponderance of the evidence and also failed to prove damages. The decision was journalized on or about June 16, 1997. (Magistrate's Decision with Findings of Fact and Conclusions of Law, Dated June 5, 1997). Plaintiff filed an objection to the magistrate's decision on June 18, 1997, but failed to serve a copy on CMHA. Her objection was stricken from the record on August 1, 1997 for failure to serve a copy upon CMHA. The judgment entry further stated, even if the objection had been served upon the Defendant, Plaintiff failed to attach an affidavit as required by Civ.R. 53(E)(3)(b). Pappenhagen v. Payne (1988), 48 Ohio App.3d 17. (Judgment Entry, dated August 1, 1997). The judgment entry was journalized on August 6, 1997. On August 11, 1997 plaintiff, pro se, filed a timely appeal. Plaintiff's assignments of error state as follows: I. THE TRAIL [SIC] COURT ERRED IN GRANTING A DIRECTED VERDICT FOR PLAINTIFF AT THE END OF PLAINTIFFS [SIC] PRESENTATION OF ITS CASE, UPON BOTH PLAINTIFFS [SIC] COMPLAINT AND CLAIM. II. THE TRAIL [SIC] COURT ERRED IN NOT GRANTING PLAINTIFF WITH 10%. -5- There is no transcript of the evidentiary hearing in the record. From a review of the record and the magistrate's six-page decision, we find no indication that the magistrate directed a verdict. On the contrary, the parties presented their evidence and the magistrate took the matter under advisement and rendered her decision. Assuming that plaintiff intended to state that the trial court erred in granting judgment for CMHA because her decision was against the weight of the evidence, we find no merit to the appeal. Our review of the magistrate's decision on appeal is extremely limited. As recently stated in Arnett v. Midwestern Ent., Inc. (1994), 95 Ohio App.3d 429, 431: We initially note that a judgment supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. See C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280, 8 O.O.3d 261, 262, 376 N.E.2d 578, 579. In addition, under a manifest weight of the evidence test, the court of appeals is guided by the presumption that the findings of the trial court are correct. Seasons Coal Co. v. Cleveland(1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 411, 461 N.E.2d 1273, 1276. Thus, if there is competent credible evidence going to the trial court's finding that the retail buyer's order does not constitute a valid and enforceable contract, this court must affirm the judgment of the trial court. Plaintiff's claim was that CMHA was negligent because CMHA agents failed to call the Cleveland Fire Department after a fire broke out in plaintiff's apartment during her absence. The Magistrate's Decision indicates that she reviewed plaintiff's documentary evidence which is in the record, including various letters, memoranda, a Red Cross report, fire department letters, -6- handwritten notes and photographs of the fire damage. (Findings of Fact qq12, 13). The trial court found that plaintiff did not meet her burden of proving liability or damages. Aside from her verbal testimony, plaintiff offered no evidence of the value of her belongings destroyed in the fire. Based on the conflicting evidence, the trial court, as the finder of fact, had the right to determine that her damages were not established. The trial court also found that plaintiff did not meet her burden of proof as to liability. She testified that the fire department was not called, but the magistrate found that [b]oth sides agreed the Cleveland Fire Department was called and handled the fire. (Findings of Fact q2). Hence, the trier of fact was entitled to find that liability was not established by a preponderance of the evidence. We further find no argument or citations in support of plaintiff's Assignment of Error II respecting 10% interest. App.R. 12(A)(2) provides as follows: The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A). In the case herein, plaintiff has failed to argue this assignment in her brief or at oral argument, and we are unable to identify in the record any error on which the assignment of error is based. In any event, since plaintiff failed to prevail on the merits of her claim, she would not be entitled to interest. We have reviewed the record, the Magistrate's Decision and the -7- plaintiff's documentary evidence and find no grounds for disturbing the result below. Assignments of Error I and II are overruled. Judgment affirmed. -8- 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 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 M. PORTER, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE JOHN T. PATTON, 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 .