2025 OHIO 212 - Johnson v. Sailor

[Cite as Johnson v. Sailor,

2025-Ohio-212

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY

ANTHONY JOHNSON,

Plaintiff-Appellee,

TOM SAILOR DBA CROWS NEST RECORDING,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 24 MA 0063

Civil Appeal from the
Youngstown Municipal Court, Small Claims Division, of Mahoning County, Ohio
Case No. 22CVI02612Y

BEFORE:
Katelyn Dickey, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT:
Affirmed.

Anthony Johnson, Plaintiff-Appellee and

Atty. Cherie H. Howard, for Defendant-Appellant.

Dated: January 24, 2025
–2–

DICKEY, J.

{¶1} Appellant, Tom Sailor dba Crow’s Nest Recording Studio, appeals from two
December 7, 2023 judgments and one June 3, 2024 judgment of the Youngstown
Municipal Court, Small Claims Division, which adopted magistrate’s decisions that: (1)
denied Appellant’s motion to dismiss Appellee’s, Anthony Johnson, amended complaint
for failure to perfect service within one year; (2) dismissed Appellant’s counterclaim; (3)
denied Appellant’s motion to transfer the case to the trial court’s regular docket; and (4)
granted judgment in favor of Appellee and against Appellant in the amount of $3,000
following a small claims hearing.
{¶2} On appeal, Appellant asserts the trial court erred: (1) in reversing, sua
sponte, its August 10, 2023 judgment vacating the default judgment; (2) in overruling his
motion to dismiss the complaint for lack of personal jurisdiction; (3) in adopting the
magistrate’s refusal to grant him a continuance; (4) in adopting the magistrate’s refusal
to transfer the case to the court’s regular docket; (5) in dismissing his counterclaim; (6) in
finding a breach of contract; and (7) in awarding money damages.
{¶3} Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

{¶4} Appellant and Appellee are musicians. Appellant operates Crow’s Nest
Recording Studio. In April 2021, the parties entered into a verbal agreement for Appellant
to record ten of Appellee’s songs. The recordings were completed in October 2021 and
loaded onto various internet music streaming services. Appellee subsequently requested
stems or masters of the recordings. A rift developed between the parties and Appellant
refused to furnish the stems or masters.
{¶5} On August 11, 2022, Appellee filed a pro se small claims complaint against
Appellant and an amended complaint on September 20, 2022. Appellee alleged his
intellectual property had been detained by Appellant causing Appellee damages in the
amount of $6,000.
{¶6} A hearing was held on October 25, 2022. Appellant’s retained counsel,
Attorney Kim Akins, did not file an appearance but appeared to contest service of process.

Case No. 24 MA 0063
–3–

Attorney Akins provided the trial court with her address for service and the matter was
reset.
{¶7} On that same date, the amended complaint was sent via regular mail with
certificate of mailing to Appellant at 814 Marshall St., Youngstown, Ohio as well as c/o
Attorney Kim Akins, 830 Mansell Dr., Youngstown, Ohio. Neither of these mailings were
returned as undeliverable and the presumption was of proper service.
{¶8} On January 2, 2023, the small claims hearing went forward. Appellant failed
to appear and a default judgment was rendered for $3,000 in Appellee’s favor. The
magistrate filed her decision on January 4, 2023 and the trial court adopted the decision
20 days later. Appellant obtained new counsel, Attorney Cherie Howard, who entered a
notice of appearance. On January 26, 2023, Attorney Howard filed a motion to vacate
the default judgment based on failure of service. Due to an unexplained clerical error,
this matter did not come to the trial court’s attention until August 8, 2023. Due to this
prolonged timespan, the court granted Appellant’s motion to vacate on August 10, 2023
and ordered Appellee to serve Appellant at the last address noted in Appellant’s motion
to vacate.
{¶9} On October 17, 2023, Appellant filed a motion to dismiss the complaint for
Appellee’s failure to perfect service within one year under Civ.R. 3(A). The magistrate
recommended denying that motion on October 31, 2023. On November 6, 2023,
Appellant filed an answer and counterclaim for $15,000 as well as a motion to transfer
the case to the trial court’s regular docket. The next day, November 7, 2023, the
scheduled small claims hearing was held. The magistrate overruled Appellant’s oral
request for a continuance. Appellee testified he paid $2,000 to Appellant and $1,000 to
other musicians for the ten recordings pursuant to the parties’ oral agreement. Appellant
testified he spent a great deal of time on this passion project and the parties’ relationship
deteriorated. Appellant claimed he fulfilled his duties and was no longer willing to work
with Appellee. On November 13, 2023, Appellant filed objections to the magistrate’s
October 31, 2023 decision.
{¶10} On December 7, 2023, regarding Appellant’s motion to vacate the default
judgment, the trial court held, “[i]n hindsight,” it “should not have granted said motion.”
(12/7/2023 Judgment Entry, p. 2). The court adopted the magistrate’s decision and

Case No. 24 MA 0063
–4–

denied Appellant’s motion to dismiss the complaint for failure to perfect service within one
year. The court found:

Defendant’s Motion to Vacate included an Affidavit by the Defendant
which he admitted as follows:

4. About August 2022 or September 2022, Bart Blum, a tenant at 814
Marshall Street, Youngstown, Ohio 44502, gave me notice for certified mail
that had been delivered to his mailbox. I never claimed the certified mail.

5. Then, in October 2022, Bart Blum gave me a regular mail envelope
that had been delivered to his mailbox. The notice in the regular mail
envelope notified me that Anthony Johnson had sued me in small claims
court and that a hearing was set for October 25, 2022.

6. I retained Attorney Kim Akins to appear at the October 25th
hearing to notify the court that the small claims complaint contained a wrong
mailing address and that I had never been properly served notice of the
lawsuit.

7. On or about January 4, 2023, I discovered that a judgment had
been entered against me.

Further the Magistrate’s Decision of October 31, 2023, which is the
subject of Defendant’s herein Objections, indicates that on October 25,
2022 Attorney [Akins] appeared on behalf of Defendant and indicated that
Defendant had not gotten service, and provided the Court with her address
for service. This was accomplished on October 26, 2022 when the Clerk’s
office mailed the hearing notice for a January 3, 2023, Small Claims
complaint and Magistrate’s order of from [sic] October 25, 2022 hearing by
regular mail with certificate of mailing.

Procedural due process, among other things but most pertinent to
this case, is to assure an individual will not be deprived of life, liberty or

Case No. 24 MA 0063
–5–

property without due process of law including notice of the claim being made
against him and who is making it as well as having an opportunity to be
heard. It does not permit a person to intentionally thwart or avoid service.
Defendant himself admits he intentionally did not claim certified mail. He
admits that sometime in October, 2022 he received, read and was “notified”
of the claim against him and who was bringing it and that a hearing was to
be held October 25, 2022. Defendant admits he then hires Attorney Kim
[Akins] to deny service. Attorney [Akins], while never filing notice of
appearance, attends the hearing, denies service (personal jurisdiction) and
further advises the Magistrate to serve Defendant at her office, which is
done. Defendant further admits that on January 4, 2023, the same day as
the Magistrate’s decision of the October 25, 2022 hearing was mailed, he
learned of the default judgment against him and hires Attorney Cherie
Howard.

As an aside, it must be noted that after the Magistrate denied
Defendant’s Motion to Dismiss and before Defendant filed its Objections to
that decision a full hearing on the merits was conducted where all parties
were present and fully participated. This occurred on November 7, 2023.
(Of note, Defendant filed an Answer and Counter Claim and Motion to
Transfer to Regular Docket on November 6, 2023 at 3:09 pm. This is
addressed in a separate Judgment Entry).

As shown in Defendant’s sworn affidavit this Court deems Defendant
had actual notice of this matter since October 2022. Not only does he admit
to being notified by the actual complaint document, he hires 2 attorneys
throughout this process. The first attorney, according to the Magistrate,
gave permission to have Defendant served at her address which was
accomplished on or around October 26, 2022. Based on the foregoing and
in the matter of justice Defendant’s Objections are overruled. The Court
finds the Magistrate properly interpreted the facts of this case and properly

Case No. 24 MA 0063
–6–

applied the law. Magistrate’s Decision of October 31, 2023 denying
Defendant’s Motion to Dismiss hereby stands.

(12/7/2023 Judgment Entry, p. 2-4); see also (1/15/2023 Affidavit of Tom Sailor).

{¶11} In another judgment that same date, the trial court adopted the magistrate’s
decision dismissing Appellant’s counterclaim and denying Appellant’s motion to transfer
the case to the court’s regular docket, specifically stating:

Defendant’s request to transfer this matter to regular docket is
overruled. In the Court’s decision adopting the Magistrate’s denial of
Defendant’s Motion to Dismiss it discusses the facts that support Defendant
had actual notice of the claim made against him and who made it sometime
in October, 2022 but before October 25, 2022. Notice of this matter, who
made it and scheduled hearing was admitted to by the Defendant himself in
his affidavit in support of his Motion to Vacate filed on January 7, 2023.

Defendant filed his counterclaim the day before the scheduled Small
Claims trial. This, in the Court’s opinion did not give reasonable or sufficient
notice to the pro se Plaintiff to prepare for such an action. The Small Claims
trial proceeded with all parties present as well as Defense counsel.
Therefore the Court sua sponte dismisses the Defendant’s counter claim
and denies the transfer of this matter to the Court’s regular docket.

(12/7/2023 Judgment Entry, p. 2).

{¶12} Appellant filed an appeal with this court, Case No. 24 MA 0005. On January
30, 2024, this court sua sponte dismissed that appeal for lack of a final appealable order.
{¶13} On February 5, 2024, the magistrate issued a decision regarding the
November 7, 2023 hearing in which Appellant’s motion for a continuance and motion to
dismiss for lack of service were denied, the counterclaim was dismissed, and Appellee
was awarded judgment against Appellant in the amount of $3,000 plus interest and costs.
On February 12, 2024, Appellant filed a request for findings of fact and conclusions of

Case No. 24 MA 0063
–7–

law, which the magistrate filed on May 7, 2024. Ten days later, Appellant filed objections
to the magistrate’s decision.
{¶14} On June 3, 2024, in addressing Appellant’s objections to the magistrate’s
decision finding in favor of Appellee in the sum of $3,000 and dismissing Appellant’s
counterclaim as untimely, the trial court found that the magistrate had properly determined
the factual issues and appropriately applied the law. The court held that: (1) the issue
regarding the motion to dismiss for failing to perfect service would not be addressed
because the court had ruled on the issue in its December 7, 2023 decision; (2) the
magistrate had not engaged in an abuse of discretion by failing to grant a continuance;
(3) the motion to transfer the case to the court’s regular docket would not be addressed
because the court had ruled on that issue in its December 7, 2023 decision; (4) the
magistrate was correct in dismissing Appellant’s untimely counterclaim; (5) the magistrate
asked appropriate questions and properly concluded what was or was not admissible
hearsay; (6) the magistrate correctly found there was an oral contract for master
recordings; (7) the magistrate had not relied on speculative evidence in awarding
damages; and (8) the magistrate had not ignored the mandates of the civil rules to aid a
pro se litigant.
{¶15} Appellant filed this appeal, Case No. 24 MA 0063. Appellant, through
Attorney Howard, filed a brief on September 20, 2024. Appellee filed a pro se brief on
October 29, 2024, which states in its entirety:

I, Anthony Johnson, contracted Tom Sailor/DBA “Crows Nest
Recording” to make recordings of my original musical tracks. My goal was
to create “Masters” of my work to share and generate additional
opportunities for myself. (A master recording is the original, final version of
a song, capturing its highest quality sound. The importance of owning your
masters lies in the control it grants over the use of that music on platforms
like Apple Music and other streaming services, ensuring artists retain the
legal rights to freely manage their work). I have never received my product
from Mr. Sailor. Mr. Sailor has made multiple excuses for not providing me
with product that his service was supposed to provide. The court has ruled
in my favor on December 7, 2023. I am asking the court to enforce the

Case No. 24 MA 0063
–8–

previous judgment so that I can proceed with future engagements and
potential revenue streams.

(10/29/2024 Appellee’s Brief).

{¶16} Appellant raises seven assignments of error for this court’s review.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED AS A MATTER OF LAW IN REVERSING,
SUA SPONTE, ITS JUDGMENT ENTRY OF AUGUST 10, 2023
VACATING THE DEFAULT JUDGMENT.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING
DEFENDANT-APPELLANT’S MOTION TO DISMISS THE COMPLAINT
FOR LACK OF PERSONAL JURISDICTION.

{¶17} In his first assignment of error, Appellant argues the trial court erred as a
matter of law in sua sponte reversing its August 10, 2023 judgment vacating the default
judgment. Appellant claims “[b]y effectively vacating its prior decision, the trial court
permitted Johnson to escape the mandate of Civ.R. 3(A) which obligated the court to
dismiss the complaint for the reason that service was not perfected within a year.”
(9/20/2024 Appellant’s Brief, p. 16-17).
{¶18} In his second assignment of error, Appellant contends the trial court erred
in overruling his motion to dismiss the complaint for lack of personal jurisdiction under
Civ.R. 3(A).
{¶19} Because Appellant’s arguments contained in his first and second
assignments of error are interrelated, we will address them in a consolidated fashion for
ease of discussion.
{¶20} “The assertion that the judgment is contrary to law is a question of law and
requires a de novo review.” KB Res., LLC v. Patriot Energy Partners, LLC, 2018-Ohio-
2771, ¶ 117 (7th Dist.), citing Gateway Consultants Group, Inc. v. Premier Physicians

Case No. 24 MA 0063
–9–

Centers, Inc.,

2017-Ohio-1443, ¶ 12

 (8th Dist.). “As to personal jurisdiction, we review a
trial court’s decision to exercise personal jurisdiction under a de novo standard.” Jarvis
v. Pompos,

2024-Ohio-1102, ¶ 31

 (7th Dist.), citing State ex rel. Cordray v. Makedonija
Tabak 2000,

2010-Ohio-2903

, ¶ 18 (10th Dist.).
       {¶21} Civ.R. 3(A) states in part: “A civil action is commenced by filing a complaint
with the court, if service is obtained within one year from such filing upon a named
defendant[.]”
       {¶22} “Civ.R. 60 provides the mechanism by which a court may vacate a previous
order. A trial court may correct a clerical mistake on its own initiative or upon motion of a
party. Civ.R. 60(A). However, when correcting substantive mistakes, the rule does not
provide that a trial court may act on its own initiative. Civ.R. 60(B).” Earl v. Earl, 2004-
Ohio-5684, ¶ 8 (9th Dist.).

                “The basic distinction between clerical mistakes that can be
       corrected under Civ.R. 60(A) and substantive mistakes that cannot be
       corrected is that the former consists of ‘blunders in execution’ whereas the
       latter consists of instances where the court changes its mind . . .” Breen v.
       Cassese (Jan. 9, 1992), Cuyahoga App. No. 62154, unreported, quoting
       Blanton v. Anzalone (C.A.9, 1987),

813 F.2d 1574

, 1577 . . .

O’Neill v. Contemp. Image Labeling, Inc.,

1997 WL 610615

, * 2 (1st Dist. Oct. 3, 1997).

{¶23} Here, the trial court acted within the purview of Civ.R. 60(A). Again, the
record reveals the following:
{¶24} On August 11, 2022, Appellee filed a pro se small claims complaint against
Appellant and an amended complaint on September 20, 2022. A hearing was held on
October 25, 2022. Appellant’s retained counsel, Attorney Kim Akins, did not file an
appearance but appeared to contest service of process.
{¶25} On that same date, the amended complaint was sent via regular mail with
certificate of mailing to Appellant at 814 Marshall St., Youngstown, Ohio as well as c/o
Attorney Kim Akins, 830 Mansell Dr., Youngstown, Ohio. Neither of these mailings were
returned as undeliverable and the presumption was of proper service.

Case No. 24 MA 0063
– 10 –

{¶26} On January 2, 2023, the small claims hearing went forward. Appellant failed
to appear and a default judgment was rendered for $3,000.00 in Appellee’s favor.
Appellant obtained new counsel, Attorney Cherie Howard, who entered a notice of
appearance. On January 26, 2023, Attorney Howard filed a motion to vacate the default
judgment based on failure of service. Due to an unexplained clerical error, this matter did
not come to the trial court’s attention until August 8, 2023. Due to this prolonged
timespan, the court granted Appellant’s motion to vacate on August 10, 2023 and ordered
Appellee to serve Appellant at the last address noted in Appellant’s motion to vacate.
{¶27} On October 17, 2023, Appellant filed a motion to dismiss the complaint for
Appellee’s failure to perfect service within one year under Civ.R. 3(A). The magistrate
recommended denying that motion on October 31, 2023. On November 7, 2023, the
scheduled small claims hearing was held. Appellant filed objections to the magistrate’s
decision.
{¶28} On December 7, 2023, regarding Appellant’s motion to vacate the default
judgment, the trial court held, “[i]n hindsight,” it “should not have granted said motion.”
(Emphasis added). (12/7/2023 Judgment Entry, p. 2). The court adopted the magistrate’s
decision and denied Appellant’s motion to dismiss the complaint for failure to perfect
service within one year. The court found:

Defendant’s Motion to Vacate included an Affidavit by the Defendant
which he admitted as follows:

6. I retained Attorney Kim Akins to appear at the October 25th
hearing to notify the court that the small claims complaint contained a wrong

Case No. 24 MA 0063
– 11 –

mailing address and that I had never been properly served notice of the
lawsuit.

7. On or about January 4, 2023, I discovered that a judgment had
been entered against me.

...

Procedural due process . . . does not permit a person to intentionally
thwart or avoid service. Defendant himself admits he intentionally did not
claim certified mail. He admits that sometime in October, 2022 he received,
read and was “notified” of the claim against him and who was bringing it and
that a hearing was to be held October 25, 2022. Defendant admits he then
hires Attorney Kim [Akins] to deny service. . .

...

(Emphasis added). (12/7/2023 Judgment Entry, p. 2-4); see also (1/15/2023 Affidavit of
Tom Sailor).

{¶29} Based on the facts presented and the record before us in this particular
case, the trial court did not make a substantive mistake in changing its mind. See O’Neill,

1997 WL 610615

, * 2 (1st Dist. Oct. 3, 1997). Rather, the court acted “[i]n hindsight.”
(Emphasis added). (12/7/2023 Judgment Entry, p. 2).             “Hindsight” is defined as
“perception of the nature of an event after it has happened[.]” Merriam-Webster Online,
https://www.merriam-webster.com/dictionary/hindsight (accessed Nov. 27, 2024).             As
addressed, because of an unexplained clerical error, Attorney Howard’s January 26, 2023



Case No. 24 MA 0063
                                                                                      – 12 –


motion to vacate the default judgment did not come to the court’s attention until August
8, 2023. The court initially granted the motion two days later. Although not a best
practice, it appears the court quickly signed its concise judgment entry as a result of this
prolonged timespan. Following the November 7, 2023 small claims hearing, the court
held, “[i]n hindsight,” it “should not have granted said motion.”      (Emphasis added).
(12/7/2023 Judgment Entry, p. 2). This clerical mistake consisting of a “blunder in
execution” was properly corrected under Civ.R. 60(A). See

O’Neill at *2

. Thus, the court
had the authority to vacate its own judgment due to its hindsight.

Id.

(Holding the trial
court did not change its mind but rather corrected its oversight by sua sponte vacating its
own judgment after realizing that a motion had been pending, thereby acting within the
purview of Civ.R. 60(A)).
{¶30} The record reveals Appellee’s pro se small claims complaint was filed on
August 11, 2022 and an amended complaint was filed on September 20, 2022. The
record further reveals, and Appellant admitted, he had actual notice of this matter since
October 2022 and he hired his first attorney to deny service. See (1/15/2023 Affidavit of
Tom Sailor). The trial court properly determined “[p]rocedural due process . . . does not
permit a person to intentionally thwart or avoid service.” (12/7/2023 Judgment Entry, p.
3). Based on the facts presented, because service was perfected under Civ.R. 3(A), the
court did not err in adopting the magistrate’s decision denying Appellant’s motion to
dismiss.
{¶31} Appellant’s first and second assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED AS A MATTER OF LAW BY ADOPTING THE
MAGISTRATE’S REFUSAL TO GRANT A CONTINUANCE TO
DEFENDANT-APPELLANT.

{¶32} In his third assignment of error, Appellant asserts the trial court erred in
adopting the magistrate’s refusal to grant him a continuance.
{¶33} “When addressing the denial of a continuance, appellate courts employ an
abuse of discretion standard.” Matter of E.T.,

2023-Ohio-444, ¶ 85

 (7th Dist.), citing State



Case No. 24 MA 0063
                                                                                         – 13 –


v. Unger,

67 Ohio St.2d 65

 (1981), syllabus. An abuse of discretion occurs when a court
exercises its judgment “in an unwarranted way, in regard to a matter over which it has
discretionary authority.” Johnson v. Abdullah,

2021-Ohio-3304, ¶ 35

.

              “‘There are no mechanical tests for deciding when a denial of a
       continuance is so arbitrary as to violate due process. The answer must be
       found in the circumstances present in every case, particularly in the reasons
       presented to the trial judge at the time the request is denied.’”

Unger at 67, 423 N.E.2d 1078

, quoting Ungar v. Sarafite,

376 U.S. 575, 589

84 S.Ct. 841

11 L.Ed.2d 921

 (1964).

              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.

              In evaluating a motion for a continuance, a court should note, inter
       alia: the length of the delay requested; whether other continuances have
       been requested and received; the inconvenience to litigants, witnesses,
       opposing counsel and the court; whether the requested delay is for
       legitimate reasons or whether it is dilatory, purposeful, or contrived; whether
       the defendant contributed to the circumstance which gives rise to the
       request for a continuance; and other relevant factors, depending on the
       unique facts of each case.

       (Citation omitted.) Unger,

67 Ohio St.2d 65, 67-68

423 N.E.2d 1078

.

Matter of E.T.,

2023-Ohio-444, ¶ 86

(7th Dist.).

{¶34} In the instant matter, in ruling on Appellant’s objections to the February 5,
2024 magistrate’s decision, the trial court stated in its June 3, 2024 judgment:

As to Defendant’s second objection, the Court sustains Magistrate’s
denial of Defendant’s oral motion to continue made on the day of trial.
Defense counsel filed a notice of appearance on January 26, 2023 along

Case No. 24 MA 0063
– 14 –

with a Motion to Vacate the default judgment filed against her client. Said
motion was granted on August 8, 2023, though in hindsight this Court did
note in its entry of December 7, 2023 dealing with the service issue that it
should not have granted said motion. A hearing was held on October 5,
2023 and all parties were present and nothing regarding a counter-claim or
trial continuance was noted. No other pleadings were filed by either side, in
fact Defendant had not even filed an Answer at this point with a trial date
set for November 7, 2023. On November 6, 2023 at approximately 3:00 pm,
Defendant filed, without request for leave, an Answer, Counter-Claim and
Motion to Transfer to regular docket. The Counter-Claim was dismissed by
the Magistrate as untimely filed and the Motion to Transfer was denied. This
Court believes the Magistrate’s decision was proper and not an abuse of
discretion. This objection is overruled.

(6/3/2024 Judgment Entry, p. 1-2).

{¶35} Again, the record reveals, and Appellant admitted, he had actual notice of
this matter since October 2022 and he hired his first attorney to deny service. See
(1/15/2023 Affidavit of Tom Sailor). The scheduled small claims hearing was held on
November 7, 2023. At that hearing, Appellant’s counsel made an oral motion to continue,
which was overruled by the trial court.
{¶36} Upon considering the applicable Unger factors, we find no abuse of
discretion. Specifically, “the inconvenience to litigants, witnesses, opposing counsel and
the court”, “whether the requested delay [was] for legitimate reasons or whether it [was]
dilatory, purposeful, or contrived”, “whether [Appellant] contributed to the circumstance
which [gave] rise to the request for a continuance”, “and other relevant factors, depending
on the unique facts of [the] case” support the trial court’s decision in the case at bar. See
Matter of E.T.,

2023-Ohio-444, ¶ 86

 (7th Dist.), citing Unger,

67 Ohio St.2d at 67-68

.
       {¶37} Appellant’s third assignment of error is without merit.




Case No. 24 MA 0063
                                                                                        – 15 –


                            ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY ADOPTING THE
       MAGISTRATE’S REFUSAL TO TRANSFER THE CASE TO THE
       COURT’S REGULAR DOCKET.

                            ASSIGNMENT OF ERROR NO. 5

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY DISMISSING
       DEFENDANT-APPELLANT’S COUNTERCLAIM.

       {¶38} In his fourth assignment of error, Appellant claims the trial court erred in
adopting the magistrate’s refusal to transfer the case to the court’s regular docket.
       {¶39} In his fifth assignment of error, Appellant asserts the trial court erred in
dismissing his counterclaim.
       {¶40} Because Appellant’s arguments contained in his fourth and fifth
assignments of error are interrelated, we will consider them together.
       {¶41} When addressing a trial court’s decision regarding transferring a case, we
apply an abuse of discretion standard of review. See Beck v. W. Chester Lawn & Garden,

2013-Ohio-2276, ¶ 6

(12th Dist.).
{¶42} Appellant cites to R.C. 1925.10(B), which provides in part: “In the discretion
of the court, a case duly entered on the docket of the small claims division may be
transferred to the regular docket of the court upon the motion of a party against whom a
claim, counterclaim, or cross-claim is instituted or upon the motion of a third-party
defendant.”
{¶43} A trial court’s dismissal of a counterclaim is reviewed for an abuse of
discretion. See Treasurer of Cuyahoga Cty. v. Cleveland Heights Holdings L.L.C., 2020-
Ohio-1386, ¶ 24 (8th Dist.).
{¶44} At the November 7, 2023 small claims hearing, the magistrate
recommended dismissing Appellant’s counterclaim, which accompanied his motion to
transfer, due to the untimely filing and the fact that pro se Appellee was not served. Again,
the trial court adopted the magistrate’s decision dismissing Appellant’s counterclaim and

Case No. 24 MA 0063
– 16 –

denying Appellant’s motion to transfer the case to the court’s regular docket, specifically
stating in its December 7, 2023 judgment:

(12/7/2023 Judgment Entry, p. 2).

{¶45} Also, in its June 3, 2024 judgment, regarding Appellant’s counterclaim, the
trial court stated:

Defendant’s fourth objection . . . dealing with the dismissal of
Defendant’s Counter-Claim is overruled. For reasons mentioned in the
Court’s response to Defendant’s second objection. Defendant untimely
filed, without leave of this Court, his Counter-Claim filed at 3:09 pm, the day
before the set trial date. Defendant made no mention of a counter-claim
prior to this though he and his counsel had been before the court previously
and had ample time to file any of [these] pleadings prior to the evening
before trial. It is this Court’s opinion the Magistrate ruling was proper. Not
only was leave not requested to file the counter-claim but it was made the
evening before trial was to begin. The Court cannot condone such conduct
at the cost of a pro-se litigant.

Case No. 24 MA 0063
– 17 –

(6/3/2024 Judgment Entry, p. 2).

{¶46} As stated, the record reveals, and Appellant admitted, he had actual notice
of this matter since October 2022 and he hired his first attorney to deny service. See
(1/15/2023 Affidavit of Tom Sailor). Based on the facts presented, as addressed, the trial
court did not abuse its discretion in overruling Appellant’s request to transfer. Also,
Appellant and his counsel had ample time to file the pleadings at issue in a timely manner.
However, they did not. The notice and summons in this small claims case clearly advised
that a counterclaim must be served at least five days before trial. Appellant did not file
his counterclaim until the day before the scheduled November 7, 2023 small claims
hearing. This late filing, made without leave of court, clearly did not provide pro se
Appellee reasonable or sufficient notice to prepare for such an action. The small claims
hearing proceeded with both parties present as well as defense counsel. Based on the
facts presented, as addressed, the trial court did not abuse its discretion in dismissing
Appellant’s counterclaim.
{¶47} Appellant’s fourth and fifth assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 6

THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THERE
WAS A BREACH OF CONTRACT.

ASSIGNMENT OF ERROR NO. 7

THE TRIAL COURT ERRED AS A MATTER OF LAW IN AWARDING
MONEY DAMAGES.

{¶48} In his sixth assignment of error, Appellant asserts the trial court erred in
finding a breach of contract.
{¶49} In his seventh assignment of error, Appellant argues the trial court erred in
awarding money damages to Appellee.
{¶50} Because Appellant’s arguments contained in his sixth and seventh
assignments of error are interrelated, we will address them together.

Case No. 24 MA 0063
– 18 –

{¶51} A breach of contract assignment of error presents a manifest weight of the
evidence argument. Gaylord v. Frazzini,

2010-Ohio-6385, ¶ 10

 (7th Dist.). “The civil
manifest weight of the evidence standard provides that judgments supported by some
competent, credible evidence going to all the essential elements of the case will not be
reversed by a reviewing court as being against the manifest weight of the evidence.”

Id.,

citing State v. Wilson,

2007-Ohio-2202

, ¶ 24, citing C.E. Morris Co. v. Foley Constr. Co.,

54 Ohio St.2d 279

 (1978), syllabus. “The reviewing court is obliged to presume that the
findings of the trier of fact are correct.”

Gaylord at ¶ 11

, citing Foley, syllabus, citing
Seasons Coal Co., Inc. v. Cleveland,

10 Ohio St.3d 77, 80-81

 (1984).
       {¶52} “‘In order to recover on a claim of breach of contract, the plaintiff must prove
(1) the existence of a contract, (2) performance by the plaintiff, (3) breach by the
defendant, and (4) damage or loss to the plaintiff.’” Williams v. Edgell,

2024-Ohio-2129, ¶ 71

 (7th Dist.), quoting Price v. Dillon,

2008-Ohio-1178, ¶ 44

(7th Dist.).
{¶53} The record reveals the parties entered into a verbal agreement in April 2021
for Appellant to record ten of Appellee’s songs. The recordings were completed in
October 2021 and loaded onto various internet music streaming services. Appellee
subsequently requested stems or masters of the recordings. A rift developed between
the parties and Appellant refused to furnish the stems or masters.
{¶54} At the November 7, 2023 small claims hearing, Appellee was seeking
damages in the amount of $6,000. Appellee indicated he suffered economic harm as a
result of Appellant not releasing the recordings he had made of Appellee’s music.
Appellee testified he was working with another artist on a contract, Bootsy Collins;
Appellant knew about the contract when he agreed to record the music; and Appellant
was also aware that Appellee had a deadline to meet. Appellee said Appellant made the
ten recordings as agreed, but did not give him the master copies by the deadline or any
time thereafter. As a result, Appellee lost his contract with Bootsy Collins. Appellee asked
for the $2,000 he paid to Appellant and the $1,000 he paid to other musicians who
participated in the recordings.
{¶55} Appellant testified that Appellee had been referred to him by a family
member. Appellant said Appellee only paid him $800 in cash at the beginning. Appellant
spent a great deal of time on this passion project and the parties’ relationship deteriorated.

Case No. 24 MA 0063
– 19 –

Appellant claimed he fulfilled his duties and was no longer willing to work with Appellee.
Appellant said he did not agree to deliver masters or stems. Appellant did not believe
Appellee had another contract with Bootsy Collins or that there was any deadline.
{¶56} The magistrate found the parties entered into an oral agreement in which
Appellee paid Appellant to record his music and supply Appellee with master copies. The
magistrate found Appellee’s testimony was credible and found Appellant failed to provide
the master recordings. In awarding $3,000 to Appellee, the trial court stated: “As to
Defendant’s sixth and seventh objections . . . dealing with the enforceability and breach
of an oral contract and awarding of damages, the Court finds the Magistrate properly
determined the factual issues and appropriately applied the law.” (6/3/2024 Judgment
Entry, p. 3).
{¶57} Based on the facts presented in this case, as addressed, the trial court did
not err in ruling in favor of Appellee. The trier of fact was in the best position to observe
the witnesses and weigh the credibility of the evidence. See AJ Amatore & Co. v.
Sebastiani,

2019-Ohio-4879

, ¶ 34 (7th Dist.).
       {¶58} Appellant’s sixth and seventh assignments of error are without merit.

                                      CONCLUSION

       {¶59} For the foregoing reasons, Appellant’s assignments of error are not welltaken. The December 7, 2023 and June 3, 2024 judgments of the Youngstown Municipal
Court, Small Claims Division, are affirmed.




Robb, P.J., concurs.

Hanni, J., concurs.




Case No. 24 MA 0063
[Cite as Johnson v. Sailor,

2025-Ohio-212

.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgments of
 the Youngstown Municipal Court, Small Claims Division, of Mahoning County, Ohio,
 are affirmed. Costs to be taxed against the Appellant.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.