[Cite as Stiles v. Bugno,
2024-Ohio-1262.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
RICHARD J. STILES,
Plaintiff-Appellee,
v.
ELIZABETH L. BUGNO,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 23 MA 0039
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2021 CV 00213
BEFORE:
Carol Ann Robb, Cheryl L. Waite, Mark A. Hanni, Judges
JUDGMENT:
Affirmed.
Atty. John N. Zomoida, Jr., Anthony & Zomoida, for Plaintiff-Appellee and
Atty. Rick L. Brunner, Atty. Patrick M. Quinn, Brunner Quinn, for Defendant-Appellant.
Dated: March 28, 2024
–2–
Robb, P.J.
{¶1} Appellant, Elizabeth L. Bugno, appeals the judgment finding her in breach
of the parties’ oral agreement and awarding Appellee, Richard J. Stiles, $16,750 in
damages.
{¶2} Appellant argues the trial court did not address her objections to the
magistrate’s decision; the parties’ oral agreement violates the statute of frauds; the trial
court erred by permitting Appellee’s untimely pretrial statement; and the trial court erred
by believing Stiles instead of her. We affirm.
Statement of the Facts and Case
{¶3} Stiles filed suit against Bugno, his mother, in February of 2021, asserting
claims for breach of an oral contract and unjust enrichment. Stiles asserts he paid off his
mother’s automobile loan at her request, and she promised to repay him. She made
several payments to Stiles before stopping in October of 2020. (February 2021
Complaint.)
{¶4} Bugno filed an answer in April of 2021. (April 9, 2021 Answer.) Following
an unsuccessful mediation in January of 2022, Bugno’s second attorney filed a notice of
appearance. (February 11, 2022 Notice of Appearance.) Four days later, her first named
attorney moved to withdraw as counsel of record indicating a lack of client
communication, which the trial court granted. (February 16, 2022 Order.)
{¶5} In May of 2022, Bugno moved the trial court for leave to file an amended
answer and counterclaim. The trial court denied this motion because the case had been
pending for 16 months and the trial was set for June 22, 2022. The court stated in its
judgment, “all parties have been aware of the trial set for June 22, 2022 since January
31, 2022.” (June 2, 2022 Judgment.) The trial was subsequently reset to August 31,
2022.
{¶6} Bugno filed her pretrial statement on August 24, 2022. Stiles filed his
pretrial statement on August 25, 2022. On August 30, 2022, Bugno moved for sanctions
because Stiles’ pretrial statement was untimely. It was filed one day late. (August 30,
2022 Motion for Sanctions.)
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{¶7} Bugno also moved for the court to rule on and address her Civ.R. 12(D)
defenses, contending the parties’ alleged oral agreement was in violation of the statute
of frauds. (August 30, 2022 Motion.)
{¶8} The bench trial to the magistrate was held August 31, 2022. Three
witnesses testified. Stiles testified first. He said his mother contacted him in April of 2020
and asked him to help her with the loan for the Suburban because she was in debt. She
said she was going to “pay him back as quickly as possible.” (Trial Tr. 17.) She also said
“if I could help her, that she would reimburse me and make payments to me, and she did.
She did do everything she said she would do in the beginning until September ….” (Trial
Tr. 25.) Stiles also testified: “She said that she would make the same payments that she
basically would have to pay to them [the lender] to me, and if she could pay it off quicker,
then, you know, said, … like she made me an extra payment in - -.” (Trial Tr. 27.)
{¶9} Stiles also testified his mother said she would give him an extra $50 per
month for interest. He said she and her husband needed the money “so she wouldn’t
lose her vehicle.” Bugno had not told Stiles the loan was in her husband’s name. (Trial
Tr. 27-28.)
{¶10} Stiles paid $23,064.34 electronically from his Huntington Bank account to
OneMain Financial and paid off the loan. (Trial Tr. 29.) Stiles introduced a screenshot
image taken on his phone of the bank record showing payment in the amount of
$23,064.34 to OneMain Financial on May 4, 2020 as an exhibit. (Exhibit PX-2.)
{¶11} Stiles stated he loaned her the money. He did not gift the money to her.
When asked about the manner of his mother’s repayment, Stiles explained: “She’d write
out a check; she’d add an extra $50 to it; and she would write how many payments - -
well, what the balance was on every check.” (Trial Tr. 33.)
{¶12} He recounted the payments she made to him before she stopped paying.
She made several payments in the amount of $1,050 and another time she paid him
$2,050. She would pay more because “she was trying to pay it off quicker.” (Trial Tr. 33.)
The last payment she made to him was on October 5, 2020 in the amount of $1,050. The
check states on the memo or “For” line, “Owe $17,000 Suburban.” The check is signed
“Elizabeth Bugno.” (Exhibit PX-1.)
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{¶13} In total, Bugno repaid Stiles $6,000 of the $23,064.34 he paid to OneMain
at her request. She did not make additional payments after October of 2020. (Trial Tr.
34-35.) She stopped paying Stiles after he made sexual abuse allegations against her
husband, his stepfather, on Facebook. (Trial Tr. 36.)
{¶14} Stiles also explained that he told Bugno he did not want interest from her
on the loan. He said he was not considering the $50 per month as interest. Instead,
Bugno volunteered the interest payment, and he said he is fine with it going toward the
principal amount. (Trial Tr. 38, 70.)
{¶15} Joseph Romeo also testified. He is Stiles’ friend. Romeo said he was with
Stiles when his mother, Bugno, called Stiles. Stiles put the call on speaker phone. She
was asking for financial help. Romeo recalled that Bugno said, “Alex [her other son] had
taken out a high interest loan; the loan payments were killing her; and she was going to
lose the vehicle if he didn’t loan her the money. And he agreed to loan her the money.”
(Tr. 75-76.)
{¶16} Romeo recalled Bugno indicating she would get the money “back to him as
quickly as she could. There was no set time or anything like that.” When asked if there
was a “set amount” for repayment, Romeo said “I don’t recall exactly what it was.” (Trial
Tr. 76.)
{¶17} Elizabeth Bugno testified. She said she has been married to her husband
for 38 years. She is a corrections officer at the penitentiary. She denies ever asking her
son for a loan. (Trial Tr. 90-91.) Instead, she claims Stiles called her and put her on a
three-wall call with a woman from the bank one day while she was driving to work. Bugno
gave them permission to access the automobile loan account. Thereafter, Bugno had to
end the phone call because she arrived at work and had to clock in. She explained: “And
the next day – or the day after he let me know that he had paid the loan in full.” She
remembers thanking Stiles, and he said he “did it for her husband.” Bugno then said she
offered to pay him back plus $50 a month in interest. (Trial Tr. 92-93.)
{¶18} Bugno also testified that before Stiles repaid her loan, she was not paying
$1,000 a month for the Suburban. She said she was paying much less. Bugno denies
asking Stiles to pay off the loan for her. Bugno also denied that she and her husband
Case No. 23 MA 0039
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were about to “lose the business” explaining “[e]verything was paid.” She also denied
that she and her husband were going to “lose” this vehicle. (Trial Tr. 93-94.)
{¶19} After trial, the parties submitted proposed findings of fact and conclusions
of law. The magistrate issued his decision. He overruled both of Bugno’s pretrial motions.
The magistrate found the statute of frauds did not apply. The magistrate also concluded
the parties had an express oral agreement by which Bugno promised to repay Stiles
$23,064.34 for paying off her high-interest rate car loan. The magistrate entered
judgment in Stiles’ favor in the amount of $16,750 plus interest. (December 8, 2022
Magistrate’s Decision.)
{¶20} Bugno raised objections to the magistrate’s decision, which the trial court
overruled. The court adopted the magistrate’s decision.1 (February 9, 2023 Judgment.)
{¶21} Bugno appealed and moved for a stay of the court’s judgment pending
appeal. The parties entered an agreed order staying the judgment appealed. (March 10,
2023 Agreed Order.)
{¶22} Bugno raises four assignments of error.
Trial Court’s Compliance with Civ.R. 53 & Statute of Frauds
{¶23} Bugno’s first assignment of error asserts:
“The trial court erred in entering an order which did not deal or discuss any of the
Defendant’s unopposed objections to the Magistrate’s Report which states in the final
paragraph thereof by way of example: ‘the Magistrate grants judgment in favor of the
1Although not raised, we note the trial court copied and pasted all eleven pages of the magistrate’s decision
in its judgment after stating it independently reviewed the decision and the objections. The court states it
“adopts as its own” the magistrate’s decision before reciting it in full. This court has held a court’s act of
copying and pasting the magistrate’s decision after setting forth the necessary standard of review does not
invalidate the finality of a judgment. Ramos v. Khawli, 181 Ohio App.3d 176,
2009-Ohio-798,
908 N.E.2d
495, ¶ 26 (7th Dist.), citing Schmidli v. Schmidli, 7th Dist. Belmont No. 02BE63,
2003-Ohio-3274, ¶ 16, and
Jarvis v. Witter, 8th Dist. Cuyahoga No. 84128,
2004-Ohio-6628, ¶ 39. To the contrary, it demonstrates
the court agrees with each statement of the magistrate.
Id. The court’s repetition of the words “magistrate’s
decision” in its decision here, as a result of the copying and pasting, does not affect the finality of the order
as long as the court’s judgment addresses the objections, takes one of the actions in Civ.R. 53(D)(4), and
informs the parties the relief being afforded. In re Dayton, 7th Dist. Jefferson No. 02 JE 20, 2003-Ohio-
1240, ¶ 9.
Case No. 23 MA 0039
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Plaintiff’ but never mentions the Court is entering judgment and repeats that kind of error
in several places.”
{¶24} Bugno first argues the trial court did not address her objections. She
contends the court simply copied and pasted the analysis of the magistrate’s decision
and made it its own.
{¶25} Civ.R. 53(D)(4)(d), “Action of Court on Magistrate's Decision and on Any
Objections to Magistrate's Decision; Entry of Judgment or Interim Order by Court,” states
in part:
Action on Objections. If one or more objections to a magistrate's decision
are timely filed, the court shall rule on those objections. In ruling on
objections, the court shall undertake an independent review as to the
objected matters to ascertain that the magistrate has properly determined
the factual issues and appropriately applied the law. Before so ruling, the
court may hear additional evidence but may refuse to do so unless the
objecting party demonstrates that the party could not, with reasonable
diligence, have produced that evidence for consideration by the magistrate.
{¶26} While it does appear likely the trial court copied the majority of the
magistrate’s decision, before doing so, the trial court explicitly states:
This matter was considered on the Magistrate’s Decision filed on December
8, 2022 and Defendant’s objections filed on December 21, 2022. Pursuant
to Civ.R. 53(D)(4)(d), the court conducted an independent review of the
objected to matters and has determined the Magistrate has properly
determined the factual issues and appropriately applied the law. …
Therefore, the court adopts as its own, the Magistrate’s Decision filed on
December 8, 2022, and set forth below in this judgment entry.
(February 9, 2023 Judgment.)
{¶27} The trial court said it considered the objections and conducted the
necessary independent review of each. It also states it was adopting the magistrate’s
decision as its own before reciting it.
{¶28} The requirement in Civ.R. 53 requiring a court to independently review a
magistrate’s report and the objections does not require the court to explain why the court
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adopted the decision or overruled the objections. Kapadia v. Kapadia, 8th Dist. Cuyahoga
No. 94456, 2011-Ohio-2255, ¶ 11; Greene v. Cincinnati, 1st Dist. Hamilton No. C-120079,
2012-Ohio-5393, ¶ 11.
{¶29} Because the trial court’s judgment satisfies Civ.R. 53(D)(4)(d), this aspect
of Bugno’s first assigned error lacks merit.
{¶30} Additionally, Bugno contends the trial court erred by finding the statute of
frauds is inapplicable to the parties’ oral agreement. At the beginning of trial, Bugno
moved for dismissal of Stiles’ claims based on the statute of frauds, which the trial court
overruled.
{¶31} Bugno claims the parties’ agreement for Bugno to pay Stiles $23,000 is
unenforceable under the statute of frauds for two reasons. First, she claims it is a promise
to pay the debt of another and is thus unenforceable since it was not in writing and signed
by her. Second, she claims their oral agreement is unenforceable under the statute of
frauds because it is not capable of being performed within one year.
{¶32} The application of the statute of frauds is a question of law for the court to
decide when the facts are not disputed. Essig v. Blank, 2021-Ohio-2602,
176 N.E.3d
113, ¶ 6 (2nd Dist.), citing Willoughby Supply Co. v. Inghram,
2015-Ohio-952,
30 N.E.3d
230, ¶ 22 (11th Dist.). We review issues of law de novo and without deference to the trial
court’s decision. Henderson v. Haverfield, 7th Dist. Harrison No. 21 HA 0005, 2022-Ohio-
2194, ¶ 45. Regarding issues of fact, however, we employ the manifest weight standard
of review in appeals from bench trials. St. Clairsville Pointe, Inc. v. Musilli, 2022-Ohio-
2646,
193 N.E.3d 1114, ¶ 47 (7th Dist.). “If the evidence is susceptible to more than one
interpretation, then we must construe it consistently with the lower court's judgment.”
Id.
{¶33} Ohio’s statute of frauds is codified in Chapter 1335 of the Ohio Revised
Code. The statute of frauds requires certain contracts to be in writing. R.C. 1335.05
states in part:
No action shall be brought whereby to charge the defendant, upon a special
promise, to answer for the debt, default, or miscarriage of another person;
… or upon an agreement that is not to be performed within one year from
the making thereof; unless the agreement upon which such action is
brought, or some memorandum or note thereof, is in writing and signed by
Case No. 23 MA 0039
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the party to be charged therewith or some other person thereunto by him or
her lawfully authorized.
(Emphasis added.)
{¶34} “Agreements that do not comply with the statute of frauds are
unenforceable.” Qutifan v. Shafiq, 2016-Ohio-4555,
70 N.E.3d 43, ¶ 13 (10th Dist.), citing
Hummel v. Hummel,
133 Ohio St. 520,
14 N.E.2d 923 (1938). The purpose of the statute
of frauds is to ensure that transfers of real property are reliable and to discourage
fraudulent claims. N. Coast Cookies, Inc. v. Sweet Temptations, Inc.,
16 Ohio App.3d
342, 348,
476 N.E.2d 388 (8th Dist.1984).
{¶35} First, we disagree with Bugno’s argument that this is an oral agreement or
promise to answer for the debt of another. As detailed in the statement of facts, Stiles
filed his complaint seeking repayment for a debt he already paid of another. He sued
Bugno to get his money back after he paid her auto loan in full, and she agreed to repay
him. Had Bugno sued Stiles seeking to enforce his promise to pay off her car loan, this
arrangement would have been a “promise, to answer for the debt … of another person
….” Id. It is not. Thus, this argument lacks merit.
{¶36} Bugno also challenges the parties’ agreement as violating the “not to be
performed within one year” provision of the statute of frauds. The trial court addressed
this issue and found:
The statute of frauds does not apply when there is no evidence presented
indicating the contract had terms relating to time for performance and it was
possible to complete the contract within one year. The statute of frauds is
only concerned with whether it is possible to complete the terms of the
agreement within one year, not as whether completion was likely.
(Citation omitted.) (February 9, 2023 Judgment.)
{¶37} Ohio courts have strictly construed the “not to be performed within one year”
provision of the statute of frauds. The rule only applies to agreements which, by their
terms, cannot be fully performed within a year. It does not apply and does not invalidate
or make unenforceable agreements that by the terms could be performed within a year.
Nonamaker v. Amos, 73 Ohio St. 163, 172-175,
76 N.E. 949 (1905); Sherman v. Haines,
73 Ohio St.3d 125, 127,
652 N.E.2d 698 (1995).
Case No. 23 MA 0039
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{¶38} The Ohio Supreme Court in Sherman v. Haines, held in pertinent part:
“where the time for performance under an agreement is indefinite, or is dependent upon
a contingency which may or may not happen within a year, the agreement does not fall
within the Statute of Frauds.” Id. Sherman also quoted Corbin on Contracts to clarify its
holding:
“[i]f a promise is so worded that it cannot be fully performed according to its
own terms within one year, it is the kind of promise to which the one-year
provision may be applicable. This may be so because the promise requires
performance until a date more than a year away … or such a number of
periodical performances as total more than a year. … ”
Id. at 129, quoting 2 Corbin on Contracts (1950), 534-535, Section 444. Upon applying
the foregoing, Sherman held:
In this case, the alleged oral agreement provided that appellant would “pay
the $3,000.00 debt in monthly installments of $25.00.” By its express terms,
the agreement necessarily required one hundred twenty months (or ten
years) of installment payments. These terms are neither indefinite nor
based upon a contingency. The agreement made no provision for the
possibility of an early payoff. Having been entirely oral, the agreement
violated R.C. 1335.05.
Id. at 129.
{¶39} In Manshadi v. Bleggi, 2019-Ohio-1228,
134 N.E.3d 695, ¶ 54 (7th Dist.),
this court found the parties’ oral agreement violated the statute of frauds. The agreement
there involved an initial agreement for Bleggi to repay a debt in one lump sum, but he was
unable to fulfill this obligation. Thus, the parties agreed Bleggi would make monthly
payments in the amount of either $3,000 or $4,000. The repayment continued for three
years. We found the modification precluded the contract from being completed in one
year, and as such, we found the statute of frauds applicable. Because it was not in writing,
it was unenforceable. Id. at ¶ 54.
{¶40} However, in Ford v. Tandy Transp., Inc., 86 Ohio App.3d 364, 382,
620
N.E.2d 996, (4th Dist.1993), the Fourth District reviewed testimony about the parties’ oral
agreement to determine if there was evidence regarding whether the contract there was
Case No. 23 MA 0039
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for a specific term. Since there was no evidence showing the agreed upon terms of the
parties’ agreement, Tandy found “there was a possibility in law and fact that Tandy's
performance might end within one year of the parties' contract.” Thus, there was no
violation of the statute of frauds. Id.
{¶41} And in Hosterman v. French, 7th Dist. Columbiana No. 13 CO 25, 2014-
Ohio-5855, ¶ 16-17, this court relied on Tandy and found the oral agreement there was
not violative of the statute of frauds since “the alleged contract was capable of
performance within one year.” We explained:
The Statute of Frauds does not apply when there is no evidence presented
indicating the contract had terms relating to time for performance and it was
possible to complete the contract within one year. Kime Design, L.L.C. v.
Aouthmany, 6th Dist. No. L-11-1162, 2012-Ohio-3183, ¶ 25. A promise that
is not likely to be performed within a year, and that in fact is not performed
within a year, is still not within the Statute of Frauds if at the time the
agreement is entered into, there is a possibility in law and in fact that full
performance may be completed within a year. Ford v. Tandy Transp., Inc.,
86 Ohio App.3d 364, 382,
620 N.E.2d 996 (1993).
Id. at ¶ 17.
{¶42} The trial testimony reveals the following. Bugno did not testify about the
parties’ agreed upon terms of the repayment or the way by which she agreed to repay
Stiles.
{¶43} As stated, Stiles testified his mother was going to “pay him back as quickly
as possible.” (Trial Tr. 17.) He explained she said she would make payments to him, the
same payments she would have made to the lender. Stiles did not testify as to what
amount they agreed on, if any. A copy of the loan payoff document shows the total
monthly loan payment was $787.55, consisting of $510.02 in principal and $277.53 in
interest. (Exhibit PX-4.) Bugno made payments to him in two different amounts, $1,050
and $2,050. (Trial Tr. 25.) Stiles also testified: “She said that she would make the same
payments that she basically would have to pay to them to me, and if she could pay it off
quicker, then, you know, said, … like she made me an extra payment in - -.” (Trial Tr.
27.)
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{¶44} Romeo testified he heard Bugno state she would get the money “back to
[Stiles] as quickly as she could. There was no set time or anything like that.” When
asked if there was a “set amount” for repayment, Romeo said “I don’t recall exactly what
it was.” (Trial Tr. 76.)
{¶45} Moreover, Bugno paid him $1,050 in June, July, and October of 2020, but
did not pay Stiles in the month of September. And she paid him $2,050 in the month of
August. There is nothing demonstrating she was precluded from paying the full amount
early or within a year. Moreover, Stiles’ statement that she promised to pay it off “as
quickly as possible” and her payments of varying amounts tend to show there was no
agreement about her timeline for repayment.
{¶46} While the testimony shows Bugno generally promised to pay Stiles the
same amount she had been paying the lender, the payments actually made were more
than the monthly loan payment amounts. Further, both Stiles and Romeo recalled Bugno
saying she would pay him back as quickly as possible. This shows early repayment was
possible. The terms of repayment here were indefinite because there was no evidence
showing a specific agreed upon amount or frequency of the parties’ agreement.
{¶47} Thus, the parties’ agreement does not violate the statute of frauds because
the payoff terms were indefinite and worded in such a way that the agreement could have
been performed within one year. Thus, we find this argument lacks merit.
{¶48} Additionally, we conclude that the trial court’s factual finding that the parties
agreed to 23 payments of $1,000 each is unsupported by the evidence. There is no
evidence showing that a specific number of payments were agreed upon.
{¶49} To the contrary, Bugno told Stiles she would pay him the amount she was
paying the lender, which was shown to be $787.55 per month, yet she made payments
in the amounts of $1,050 and $2,050. There was no testimony or other evidence showing
the parties agreed that Bugno would make 23 equal payments. Because this finding of
fact is not supported by record evidence, we find error. The trial court erred in making
this finding as it is not supported by testimony or other evidence. Notwithstanding this
erroneous finding, the court’s conclusion that the statute of frauds is inapplicable is correct
based on the evidence at trial.
{¶50} This assigned error lacks merit and is overruled.
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Failure to Enforce Local Rules
{¶51} Bugno’s second assignment of error asserts:
“The trial court erred in denying Defendant leave to file an amended answer and
counterclaim based upon a putative statement that the Court had set the matter for trial
on January 23, 2022, when no such entry appears in the record and no disclosure was
made by withdrawing in accordance with Local Rule 12 and that withdrawal of counsel
was permitted without such a disclosure and without the defendant having any opportunity
to respond to the motion.”
{¶52} Bugno identifies three claimed trial court errors that she alleges denied her
a fair trial. First, Bugno claims the trial court erred by allowing her first attorney to
withdraw without ensuring her counsel complied with Mahoning County Local Rule 12.
Second, she contends the court erred by allowing Stiles to file his pretrial brief one day
late. And third, she claims the court erred by permitting Bugno’s counsel to make an oral
motion to approve the late filing at trial, instead of in a written motion.
{¶53} As for Bugno’s first sub-argument, she claims the trial court erred by failing
to enforce Mahoning County Loc.R. 12, “Withdrawal of Counsel,” and this failure resulted
in the court denying her leave to file a counterclaim. We disagree.
{¶54} Trial courts have broad discretion when addressing a motion to amend the
pleadings. Wilmington Steel Prods., Inc. v. Cleveland Elec. Illuminating Co., 60 Ohio
St.3d 120, 122,
573 N.E.2d 622 (1991). Thus, we do not substitute our judgment for the
trial court’s but may reverse only when the trial court’s decision is unreasonable, arbitrary,
or unconscionable.
Id. quoting Huffman v. Hair Surgeon, Inc.,
19 Ohio St.3d 83, 87,
482
N.E.2d 1248 (1985).
{¶55} Motions to amend pleadings are governed by Civ.R. 15(A), which states in
part:
A party may amend its pleading once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive
pleading is required within twenty-eight days after service of a responsive
pleading or twenty-eight days after service of a motion under Civ.R. 12(B),
(E), or (F), whichever is earlier. In all other cases, a party may amend its
Case No. 23 MA 0039
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pleading only with the opposing party's written consent or the court's leave.
The court shall freely give leave when justice so requires.
Here, Bugno’s motion to amend was well beyond the time for doing so under the rule,
and she did not obtain Stiles’ counsel’s consent. Thus, Bugno needed leave of court. Id.
{¶56} Further, Mahoning County Loc.R. 12, “Withdrawal of Counsel,” states:
(A) An attorney desiring to withdraw from representation of a client shall file
a motion to withdraw stating the reasons for the withdrawal. The motion
shall include the last current address and phone number of the client and a
certification by the attorney that the following conditions have been met:
(1) Notice has been given to the client that the attorney has filed a motion
to withdraw;
(2) Notice has been given to the client advising the client of all orders and
all upcoming assignment dates;
…
(B) No attorney shall be permitted to withdraw from a case later than twentyone days prior to a trial or dispositive hearing except in extraordinary
circumstances, or unless required pursuant to the Code of Professional
Responsibility.
{¶57} As stated, Bugno filed an answer with her first attorney. (April 9, 2021
Answer.) Following an unsuccessful mediation in January of 2022, Bugno’s second
attorney filed a notice of appearance. (February 11, 2022 Notice of Appearance.) Four
days later, her first named attorney moved to withdraw as counsel of record indicating a
lack of communication, which the trial court granted. (February 16, 2022 Order.)
{¶58} Bugno subsequently moved the trial court for leave to file an amended
answer and counterclaim on May 24, 2022. The trial court denied her motion because
the case had been pending for 16 months and the trial date was set for June 22, 2022.
The court stated in its judgment, “all parties have been aware of the trial set for June 22,
2022 since January 31, 2022.” (June 2, 2022 Judgment.)
{¶59} We agree that Bugno’s initial attorney failed to follow Local Rule 12 when
he did not certify in his motion that he had informed his client of “all orders and all
upcoming assignment dates” in his motion to withdraw. Yet, his motion to withdraw was
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predicated on Bugno’s retention of a new attorney, who had already entered an
appearance. Further, Bugno’s new attorney did not move for leave to amend her
complaint in February of 2022 when he was retained, but did so three months later. The
trial court subsequently overruled her request to file an amended answer and
counterclaim.
{¶60} Although the fact that a bench trial had been scheduled may not have been
evident from the public docket when Bugno’s new counsel entered an appearance, the
fact that the case had been pending for more than a year was apparent.
{¶61} Further, a review of Bugno’s motion for leave shows her proposed
counterclaim sought to add claims for defamation and telecommunications harassment.
Her motion in support states Bugno learned about the facts supporting these claims
during discovery in his case. As the trial court found, the case had been pending for
sixteen months. The parties had already conducted discovery and participated in
mediation. Further, the nature of her alleged claims do not tend to show they were
compulsory, such that she would be precluded from raising them. See Rettig Enterprises,
Inc. v. Koehler, 68 Ohio St.3d 274, 277,
626 N.E.2d 99 (1994), citing Civ.R. 13(A).
{¶62} Thus, we find no abuse of discretion. There is nothing indicating the trial
court’s decision is unreasonable, arbitrary, or unconscionable. This sub-argument is
overruled.
{¶63} Bugno asserts in her second and third sub-arguments the court erred by
allowing Stiles to file his pretrial brief one day late and also by granting Stiles’ oral motion
to allow the late filing at the beginning of the bench trial.
{¶64} Bugno takes issue with Stiles’ counsel’s failure to comply with and the
court’s failure to enforce Mahoning County Civil Local Rule 4, which states in part:
(C) Seven days before trial, counsel shall prepare a pre-trial statement
which shall be submitted to the Court, unless the pretrial statement is
waived by the Court.
…
(E) In the event that a party fails to provide a pretrial statement, where that
statement is not excused by the Court, the Court may impose sanctions
against the party for its failure to comply with this rule.
Case No. 23 MA 0039
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{¶65} It is undisputed that Stiles’ pretrial statement was submitted one day late—
six days before trial instead of the seven. The magistrate addressed this issue on the
record during the proceedings when Stiles’ counsel moved to have the court admit it as
untimely. Counsel explained his filing was late because he had the notification alert
incorrectly added on his calendar. The magistrate allowed the late filing and noted at the
beginning of trial, “I don’t believe it affects me or the decision I would make or the evidence
in this case.” (Trial Tr. 13.)
{¶66} Bugno claims the trial court judge, and not the magistrate, was the only
individual permitted to authorize Stiles’ untimely motion. She also claims the late filing is
not permissible absent a showing of excusable neglect.
{¶67} Mahoning County Local R. 16 states: “These local rules are applicable to
all civil proceedings in the Mahoning County Common Pleas Courts unless otherwise
specifically ordered in an individual case by written judgment entry of the Judge presiding
over such case, or by amendment to these rules.”
{¶68} Appellant asserts this rule means a magistrate lacked the authority to
address Stiles’ oral motion to accept his pretrial statement one day late. We disagree.
{¶69} Civ.R. 53(C)(1) “Authority” states: “To assist courts of record and pursuant
to reference under Civ. R. 53(D)(1), magistrates are authorized, subject to the terms of
the relevant reference, to do any of the following … (a) Determine any motion in any
case ….”
{¶70} Here, the trial was being heard by the magistrate. It is illogical to conclude
the magistrate was not permitted to address Stiles’ oral motion about a procedural issue
raised while presiding over the matter. Further, it is evident the pretrial statement
requirement is designed to apprise the opposing party and the court about who each party
intends to call as a witness, what legal and factual issues may arise during trial, how long
the trial may take, and whether settlement is still possible, among other things. It is not
evidence and is not filed with the clerk of courts.
{¶71} Although Bugno generally contends she was prejudiced as a result of Stiles’
untimely pretrial statement, she does not identify specific prejudice resulting from the oneday delay. Bugno does not claim Stiles identified new evidence or a surprise witness for
the first time in this late statement. She does not contend she was unable to prepare for
Case No. 23 MA 0039
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trial because of the delay. Thus, we cannot find the trial court abused its discretion by
allowing the untimely pretrial statement. This argument lacks merit.
{¶72} To the extent Bugno claims Civ.R. 6(B) required Stiles to show excusable
neglect, we disagree. Civ.R. 6 states in part:
(A) Time: Computation. In computing any period of time prescribed or
allowed by these rules, by the local rules of any court, by order of court, or
by any applicable statute, the day of the act, event, or default from which
the designated period of time begins to run shall not be included. …
(B) Time: Extension. When by these rules or by a notice given thereunder
or by order of court an act is required or allowed to be done at or within a
specified time, the court for cause shown may at any time in its discretion *
… (2) upon motion made after the expiration of the specified period permit
the act to be done where the failure to act was the result of excusable
neglect … .
(Emphasis added.) Subsection (A) of Civ.R. 6 explicitly includes “these rules” and “the
local rules of any court.” By its terms, Civ.R. 6(B) does not apply to violations of local
rules, but only to violations of the Ohio Rules of Civil Procedure.
{¶73} As for Bugno’s allegation that the foregoing errors resulted in the denial of
due process, we disagree.
{¶74} The party claiming a violation of a local rule when due process rights are
implicated generally has the burden to show not only the trial court failed to comply with
its local rule, but also that the party was prejudiced by that failure. Wallner v. Thorne, 189
Ohio App.3d 161,
2010-Ohio-2146,
937 N.E.2d 1047, ¶ 21 (9th Dist.), citing In re J.B., 9th
Dist. Medina Nos. 03CA0024-M and 03CA0025-M,
2003-Ohio-4786, ¶ 16.
{¶75} Bugno generally asserts she had judgment rendered against her because
of the trial court’s errors. She does not, however, direct our attention to any specific
prejudice as a result of the trial court’s alleged failure to abide by the local rules. Thus,
we find Bugno’s due process argument lacks merit.
{¶76} For the foregoing reasons, Bugno’s second assignment of error lacks merit
in its entirety.
Case No. 23 MA 0039
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Unjust Enrichment Claim
{¶77} Bugno’s third assigned error contends:
“The trial court erred in finding that Defendant enjoyed the benefit from the
Plaintiffs [sic] alleged payment of a debt of her husband, merely because she drove the
car that was subject to a lien which the Plaintiff allegedly paid off, and she drove the car
before and after the alleged loan was paid off.”
{¶78} In this assignment of error, Bugno challenges the trial court’s findings that
tend to support Stiles’ claim for unjust enrichment. Stiles asserted a claim in his complaint
for unjust enrichment, and the trial court made certain findings that tend to support the
claim. However, the trial court did not address the actual merits of Stiles’ unjust
enrichment claim and did not award damages for unjust enrichment. Thus, any argument
here is moot since it has no practical significance on the existing controversy. Warner v.
Palmer, 7th Dist. Belmont No. 18 BE 0012, 2019-Ohio-4078, ¶ 28; App.R. 12(A)(1)(c).
{¶79} Accordingly, this assigned error is meritless.
Witness Credibility
{¶80} Bugno’s fourth assignment of error asserts:
“The trial court erred in finding that the Plaintiff paid because he was on Medicaid
which prohibited him from having such sums in a bank account, and there was no
evidence that the account making payments belonged to Plaintiff.”
{¶81} This assignment attacks the credibility of the plaintiff and in essence the
court’s judgment as against the manifest weight of the evidence. Bugno contends Stiles
and his witness are unreliable since they have substantial criminal histories and the
propensity to disregard the law. Bugno also urges us to find that because Stiles was a
Medicaid recipient, he should not have had $23,000 to loan Bugno, absent fraud.
{¶82} Appellate courts “should not reverse a decision simply because it holds a
different opinion concerning the credibility of the witnesses and evidence submitted
before the trial court. … The determination of credibility of testimony and evidence must
not be encroached upon by a reviewing tribunal ….” Seasons Coal Co. v. City of
Cleveland, 10 Ohio St.3d 77, 81,
461 N.E.2d 1273 (1984); accord Andes v. Winland,
2017-Ohio-766,
85 N.E.3d 1098, ¶ 31 (7th Dist.).
Case No. 23 MA 0039
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{¶83} The credibility of the witnesses is primarily for the finder of fact because the
trial judge is best able to view the witnesses and observe their demeanor, including voice
inflections and body language. Seasons Coal Co., supra, at 80, 461 N.E.2d 1273. Both
Bugno and Stiles testified as to their competing versions of events. Stiles claims he paid
off this loan for his mother because she was having difficulty with money at the time and
the automobile loan had a very high interest rate. Bugno testified she would repay him.
{¶84} Consistent with her credibility arguments, Bugno elicited testimony and
presented evidence about Stiles’ and Romeo’s criminal histories during trial. There was
also evidence and argument that Stiles should not have been in a position to afford the
amount of money he allegedly loaned Bugno, absent some sort of fraud, because he was
receiving Medicare benefits.
{¶85} This evidence was before the court for the trier of fact to assess. Because
the trial court was in a better position to observe the demeanor of the witnesses during
their testimony, we will not substitute our judgment for that of the trial court. Accordingly,
this assigned error lacks merit.
Conclusion
{¶86} Based on the foregoing, we conclude that each of Appellant’s assignments
of error lack merit and are overruled. We affirm the decision of the trial court and lift the
stay.
Waite, J., concurs.
Hanni, J., concurs.
Case No. 23 MA 0039
[Cite as Stiles v. Bugno, 2024-Ohio-1262.]
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 judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed and the stay is lifted.
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.
