[Cite as Garrett v. Jackson,
2024-Ohio-2902.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
GIFTED A. GARRETT, :
Plaintiff-Appellee, :
No. 113016
v. :
DEREK JACKSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: August 1, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-21-956750
Appearances:
Gifted A. Garrett, pro se.
Derek Jackson, pro se.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, Derek Jackson (“Jackson”), pro se, appeals a
judgment awarding plaintiff-appellee, Gifted A. Garrett (“Garrett”), damages in the
amount of $36,530.26, plus court costs. Jackson claims the following errors:
1. The trial court lacks evidence of why the appellant couldn’t testify.
Which [sic] is consistent with [United States] v [Pennycooke], 65 F.3d
9 (3rd Circ.1995)[.]
2. Constitution was ratified on December 15, 1971. It protects the right
for citizens to have a jury trial. The trial court took the appellant’s right
to have jury trial. Appellant was aware that the trial judge had
dispensed a lien on his property around 12/6/2021. By this notion
alone[,] appellant would never receive a fair or just verdict.
3. The trial court lacks evidence where the trial court was given an
unsigned lease to dispense a lien on Appellant’s property. Appellant
knowingly submitted to the court a fraudulent document.
4. The appellant was barred from introducing evidence that would
have shown appellant suffered emotionally and economically. Please
refer to case law Holmes v. South Carolina 54745 [sic].
5. The trial judge instructed the appellee to provide receipts to
appellant in a timely manner prior to trial. The appellee provided the
receipts the day of trial and this action prevented the appellant’s
attorney time to research and investigate the documents. This action
also denies the appellant the right to present a defense. Please refer to
case law Ferensic v. Birkett, 501 F.3d 469 (6th Cir.2007).
We reverse the trial court’s judgment and remand the case to the trial
court for a new hearing on damages.
I. Facts and Procedural History
In May 2020, Garrett and Jackson entered into a lease agreement that
allowed Garrett to lease two units in a building owned by Jackson on Kinsman
Avenue in Cleveland (“the property”). Garrett claims to have invested money to
renovate and improve the units for use as a restaurant and a salon. Pursuant to the
terms of the lease, he also paid a security deposit and rent until October 2021, when
the parties’ relationship disintegrated, and Jackson allegedly interfered with
Garrett’s use of the property.
In December 2021 Garrett filed suit against Jackson, asserting claims
for breach of the covenant of quiet enjoyment, tortious interference with a business
interest, civil damages for a criminal act, unjust enrichment, and injunctive relief.
Garrett alleged that Jackson constructively evicted him from the property by
changing the locks to the units and turning off the utilities. Garrett further alleged
that Jackson physically threatened him with a gun and that Jackson was
subsequently charged with aggravated menacing and disrupting a public service
following an incident at the property. Garrett alleged that he was unable to operate
his businesses due to Jackson’s actions and that he suffered damages as a result.
After obtaining service on Jackson and after Jackson, pro se, filed an
answer, Garrett served Jackson with discovery requests including requests for
admissions. In one of the requests, Garrett asked Jackson to admit that the parties
had a validly executed lease agreement. Jackson failed to file answers to the
admissions, and Garrett filed a partial motion for summary judgment based on the
admissions being deemed admitted pursuant to Civ.R. 36(A). Two months later, the
trial court granted the motion for summary judgment as unopposed. The trial court
concluded, based on the arguments and evidence presented, that Jackson breached
the parties’ lease agreement and was liable for damages on Garrett’s claims.
Jackson subsequently obtained counsel, who entered an appearance.
His newly retained counsel filed a motion for relief from judgment, arguing that
Jackson’s failure to file a brief in opposition to the motion for summary judgment
was excusable due to his lack of legal training, that the motion was timely filed, and
that the lack of a signed lease constituted a meritorious defense. The trial court
denied the motion, and the court later conducted a hearing on damages.
Garrett testified at the hearing that he gave Jackson a $5,000 check plus
$1,000 in cash for a security deposit prior to taking possession of the property in
May 2020. He also stated that he paid $8,000 to have the windows tinted in the
restaurant and for a mural to be painted on an exterior wall; $3,000 to install new
floors in the salon; $1,940 to construct an interior wall; $6,926 for a point-of-sale-
credit-card service; $3,680 to construct two reception desks; $1,720 for decals and
signs; $2,020 for electrical work; $2,720 to paint the salon; and $400 to install an
MP3 player and speakers. (Tr. 14, 18, 30-32, 40-42, and 50-55.) He also purchased
a convection oven for $1,356, and a refrigerator for $2,194. Garrett stated that he
paid $4,954.80 for an alarm system and that he purchased and installed nine
booths, a security system, and other equipment.
Garrett’s salon and restaurant opened for business in May 2021. In the
fall of 2021, Jackson had a disagreement with a hair stylist, who was renting a chair
in Garrett’s salon. According to Garrett, Jackson began sabotaging his businesses
in October 2021, by turning off the utilities to the property. Garrett claims he was
unable to properly run his businesses without electricity and water, but he
nevertheless continued paying $1,500 per month in rent. Jackson later filed an
eviction action against Garrett in the Cleveland Municipal Court, and the case was
resolved by an agreed judgment entry wherein Garrett agreed to vacate the property
in January 2022. (Tr. 114.)
Garrett took most of his equipment and other items that were not nailed
down and moved them to a new location down the road. He claimed, however, that
some of his property was damaged by Jackson. Garrett testified about the damage
to his property and the cost of the movers. He presented receipts and bank
statements to corroborate his testimony. The parties disputed who caused the
damage, and Jackson claimed that Garrett’s receipts were fraudulent. At the close
of his case, Garrett requested damages in the amount of $147,775.96. (Tr. 79.)
After hearing the evidence, the trial court awarded damages in the
amount of $28,030.26. Pursuant to a provision in the lease agreement, the court
also awarded attorney fees in the amount of $8,500. In sum, the court awarded
judgment in favor of Garrett and against Jackson in the amount of $36,530.26, plus
court costs. Jackson now appeals the trial court’s judgment.
II. Law and Analysis
A. Right to Testify
In the first assignment of error, Jackson argues the trial court erred by
refusing to allow him to testify in rebuttal to Garrett’s testimony. In the fourth
assignment of error, Jackson argues the trial court erred by refusing to allow him to
testify as to how Garrett’s actions caused him to suffer emotionally and
economically. In both assignments of error, Jackson argues the trial court erred in
refusing to allow him to testify.
Pursuant to Evid.R. 103(A)(2), a party may not predicate error on the
exclusion of evidence unless two conditions are met: (1) the exclusion of such
evidence affected a substantial right of the party, and (2) the substance of the
excluded evidence was made known to the court by proffer or was apparent from the
context within which questions were asked. State v. Gilmore, 28 Ohio St.3d 190,
(1986), syllabus; Hallisy v. Hallisy,
2023-Ohio-2923, ¶ 20 (11th Dist.), citing State
v. Conway,
2006-Ohio-791, ¶ 113; Evid.R. 103(A)(2).
Due process is a substantial right. Thomasson v. Thomasson, 2018-
Ohio-2417, ¶ 12-21. “A fundamental requirement of due process is notice and an
opportunity to be heard.” In re R.M., 2024-Ohio-1885, ¶ 19 (8th Dist.). The trial
court’s refusal to allow Jackson to testify affected a substantial right because it
deprived him of his right to be heard in his own defense.
Jackson did not proffer the evidence he would have presented if he
had been permitted to testify, but the substance of the excluded testimony was
apparent from the context within which questions were asked of Garrett. Jackson
claimed throughout the damages hearing that Garrett presented fraudulent receipts
in support of his claim for damages. Garrett was the only witness to testify at the
hearing, and his credibility was questionable. For example, when Garrett was asked
if he had any receipts to prove his gross income from the restaurant before Jackson
allegedly sabotaged it, he claimed that neither the point-of-sale-service company
nor the bank would provide documentation to him. He stated:
A: What happened was I was trying to get in contact with them.
They’re not sharing or cooperating with me in no type of way
whatsoever. The account that I had went through Key Bank was closed
as well and they have no documentation for me either. That’s why I
presented this documentation to my lawyer just ─
Q: So I wanted to ask about that. All the documents that we have talked
about, all the exhibits that you have identified, those are documents
that you have provided to your attorney, correct?
A: Correct.
Q: And you were asked several times about you didn’t doctor them, or
change them, or alter them in any way, correct?
A: Yes, sir.
(Tr. 88-89.)
Thereafter, defense counsel questioned Garrett about his lengthy
criminal history involving crimes of forgery, tampering with evidence, and misusing
a credit card. (Tr. 90-93.) To confuse matters further, Garrett testified that he paid
restaurant expenses with money from his separate daycare business. (Tr. 95.) He
also admitted that he paid some bills with cash and, therefore, did not have bank
records to substantiate those claims. (Tr. 97-98.) And there was evidence that he
submitted two invoices for the same item and may have been seeking double
recovery for that item. (Tr. 102.)
Jackson’s trial counsel asserted that Garrett’s documentation was
fraudulent and that Jackson intended to testify regarding Garrett’s fraud. The trial
court refused to allow Jackson to testify because it was a damages-only hearing, and
Jackson’s lawyer had an opportunity to cross-examine Garrett. (Tr. 124.) However,
cross-examination is limited to the scope of Garrett’s responses. Had Jackson been
given an opportunity to testify in his own defense, he could have rebutted Garrett’s
testimony and provided additional information with which to evaluate the
credibility of Garrett’s damages. Therefore, the trial court’s refusal to allow Jackson
to testify about Garrett’s alleged damages prejudiced Jackson’s defense.
However, Jackson did not present a counterclaim for damages.
Therefore, the court’s refusal to allow Jackson to testify about his alleged emotional
and economic harm did not violate a substantial right because Jackson did not have
any claims for emotional or economic harm pending before the court.
Accordingly, the first assignment of error is sustained and the fourth
assignment of error is overruled.
B. Jury Trial
In the second assignment of error, Jackson argues the trial court
deprived him of his right to a jury trial because the damages hearing was tried to the
court instead of a jury. However, the right to a jury trial is not automatic. Soler v.
Evans, St. Clair & Kelsey, 94 Ohio St.3d 432 (2002). Civ.R. 38 governs the right to
a jury trial in civil cases and states, in relevant part, that “[t]he failure of a party to
serve a [jury] demand as required by this rule and to file it as required by Rule 5(D)
constitutes a waiver by him of trial by jury.” Civ.R. 38(D).
Jackson did not serve a jury demand as provided by the Ohio Rules of
Civil Procedure. Jackson filed a pro se answer using a form provided by the common
pleas court. The form includes an option to request a jury by checking the applicable
box in the caption, but Jackson left the box unmarked. By neglecting to demand a
jury, Jackson waived his right to a jury trial. The fact that Jackson represented
himself pro se does not change that fact since “‘[p]ro se civil litigants are bound by
the same rules and procedures as those litigants who retain counsel.’” Heller v. Ohio
Dept. of Jobs & Family Servs., 2010-Ohio-517, ¶ 18 (8th Dist.), quoting Meyers v.
First Natl. Bank,
3 Ohio App.3d 209, 210 (1st Dist.1981).
Moreover, a lawyer entered an appearance on Jackson’s behalf after
the answer was filed but before the damages hearing. The lawyer did not seek to
amend the answer or otherwise request a jury trial. Therefore, the trial court did not
deprive Jackson of a right to a jury trial because he waived the right by failing to
demand a jury.
The second assignment of error is overruled.
C. Unsigned Lease
In the third assignment of error, Jackson argues Garrett failed to
present sufficient evidence of damages because his claims were based on an
unsigned lease agreement. He contends that without a signed lease, Garrett could
not prove damages resulting from a breach of the lease.
An unsigned copy of the lease was attached to the complaint and
presented at the damages hearing. The attorney who prepared the lease averred in
an affidavit attached to Garrett’s partial motion for summary judgment that it was a
true and accurate copy of the lease he prepared for the parties. Garrett averred in a
separate affidavit that the parties signed a copy of the lease in the presence of a
notary, who notarized it. Moreover, Garrett asked Jackson to admit that he
breached the lease agreement in his requests for admissions. Because Jackson failed
to respond to the request for admissions, the fact that Jackson breached the lease
was deemed admitted. Therefore, the trial court had conclusive evidence that
Jackson breached the lease agreement. Accordingly, the third assignment of error
is overruled.
D. Last-Minute Receipts
Finally, in the fifth assignment of error, Jackson argues he was
prejudiced by Garrett’s failure to produce copies of the receipts he intended to
introduce as evidence in a timely manner. He contends that because they were
produced on the day of the hearing, his trial counsel did not have sufficient time to
research and investigate the documents.
Jackson cites Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007), in
support of his argument. However, he does not cite to any part of the record, as
required by App.R. 16(A)(7), to support his claim that Garrett failed to produce the
receipts in a timely manner.
In Ferensic, a federal district court granted a criminal defendant
habeas relief on grounds that his Sixth Amendment rights were violated when a
court refused to allow his expert to testify at trial. The court excluded the expert’s
testimony because the defendant failed to produce his expert’s report by the court’s
deadline. In affirming the grant of habeas relief, the Sixth Circuit held that the
defense expert should have been allowed to testify because there were less severe
sanctions available, and the exclusion of the expert testimony deprived the
defendant of his Sixth Amendment rights.
Ferensic is distinguishable from the instant case because it involved a
criminal’s Sixth Amendment rights, and this case involves a civil matter. It also fails
to support Jackson’s argument because it holds that the expert should have been
allowed to testify despite the defense’s failure to produce the expert report in a
timely manner.
The appellant bears the burden of demonstrating error on appeal.
Taylor-Stephens v. Rite Aid of Ohio, 2018-Ohio-4714, ¶ 121 (8th Dist.). Appellate
courts are not advocates.
Id. Therefore, appellate courts “‘cannot and will not
search the record in order to make arguments on appellant[’s] behalf.’”
Id., quoting
Helman v. EPL Prolong, Inc.,
139 Ohio App.3d 231, 240 (7th Dist. 2000). Where an
appellant fails to comply with App.R. 16(A)(7) by failing to cite to any portions of the
record that he believes support his argument, the reviewing court may disregard the
assignment of error.
Id., citing Young v. Kaufman,
2017-Ohio-9015, ¶ 44 (8th
Dist.), citing App.R. 12(A)(2). These rules apply even when the appellant is a pro se
litigant because pro se litigants are bound by the same rules as litigants who are
represented by counsel. Nunn v. Mitchell,
2023-Ohio-2484, ¶ 7 (8th Dist.) (Pro se
appellant’s assigned errors overruled where pro se appellant failed to comply with
App.R. 12 and 16.).
Jackson failed to support his argument with citations to relevant
portions of the record demonstrating that he objected to Garrett’s failure to produce
the receipts in a timely manner or that the issue was otherwise raised in the trial
court. In our review of the transcript, we found no objections made during the trial
because of the untimely production of the receipts. Moreover, many, if not all, of
Garrett’s receipts and bank records were attached to the motion for summary
judgment that was filed months before the damages hearing. Therefore, Jackson’s
argument lacks merit.
The fifth assignment of error is overruled.
Judgment reversed. Case remanded to the trial court to allow Jackson
to testify at a new hearing on damages.
It is ordered that appellant recover from appellee 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.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
SEAN C. GALLAGHER, J., CONCUR
