IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
513 East Rich Street Co.,
:
Plaintiff-Appellee,
:
No. 02AP-1207
v.
:
(M.C. No. 2001 CVG 045416)
Patrick McGreevy,
:
(REGULAR CALENDAR)
Defendant-Appellant.
:
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O P I N I O N
Rendered on May 15, 2003
_________________________________________________
James R. Leickly, for appellee.
Patrick M. McGreevy, pro se.
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APPEAL from the Franklin County Municipal Court.
KLATT, J.
{¶1}
Defendant-appellant, Patrick McGreevy, appeals from a judgment of the
Franklin County Municipal Court in favor of plainti ff-appellee, 513 East Rich Street
Company. For the following reasons, we affirm that judgment.
{¶2}
Beginning on February 1, 1998, appellant entered in to a one-year lease
with appellee to rent an office located at 513 East
Rich Street ("the property"). Pursuant
to that lease, appellant agreed to pay $381 a month
rent due by the first of each month.
Rent payments made after the third day of the month
were subject to a $50 late fee, plus
an additional charge of $5 per day until the paymen t was received. The lease also
No. 02AP-1207
2
provided for a $15 charge for any rent checks refus ed by the bank. If appellant remained
in possession of the property after the expiration of the lease, the lease provided that he
would become a tenant-at-will and would pay an incr eased amount of rent under the
same terms and conditions set forth in the original lease.
{¶3}
It appears that, after the original lease expired, appellant continued to rent
the property without a new lease as a tenant-at-wil l. On December 4, 2001, appellee filed
a complaint in forcible entry and detainer to have
appellant evicted from the property.
Appellee also sought money damages, alleging that i t was owed three months' past-due
rent from appellant, two charges for previously ref used checks, and past-due rent and late
fees for any months appellant remained in possessio n of the property. Appellant vacated
the premises late in December 2001. Appellee then
filed an amended complaint on
March 26, 2002, requesting additional money damages . In addition to the previously
requested damages, appellee also claimed appellant did not make his rental payment for
May 2001, and appellant owed late fees for late ren tal payments made at various times
during his tenancy. Appellee also claimed appellan t stole two chairs when he vacated the
property. Appellant did not file an answer to appe llee's amended complaint.
{¶4}
The case was tried to the court on September 5, 200 2. Appellant has failed
to provide this court with a transcript of the proc eedings below. Appellant asserts that, on
the day of trial, he orally moved for an order comp elling appellee to produce certain
records which appellant had requested in a discover y request served in May 2002.
Appellant also allegedly requested a continuance of the trial date. Apparently, appellant's
oral motion was denied and the case was tried to th e court. The record reflects that
appellant filed a written motion to compel and moti on for continuance the day after the
trial. The record does not reflect a written decis ion on this motion.
{¶5}
By entry dated October 2, 2002, the trial court awa rded judgment in favor of
appellee for $3,206, plus interest and costs. That
amount included three months of
unpaid rent in 2001, four $15 charges for returned
checks and 43 separate $50 charges
for late payments made at various times during his
tenancy. The trial court specifically
held that the $5 per day late charge was a penalty
and unenforceable.
{¶6}
Appellant appeals, assigning the following as error :
No. 02AP-1207
3
{¶7}
"1. The trial judge did not require Plaintiff to pr oduce any discovery or
documents to Defendant as requested.
{¶8}
"2. The trial judge erred in accepting a lease that
expired on January 31,
1999 as a valid lease that still governed the relat ionship of the parties involved.
{¶9}
"3. The trial judge erred in deciding rent payments were late. Plaintiff failed
to carry the burden of proof the payments were late ."
{¶10}
Appellant contends in his first assignment of error that the trial court erred in
denying his motion to compel discovery. A trial co urt's decision on a motion to compel
discovery is within its broad discretion and will n ot be reversed absent an abuse of such
discretion. Stewart v. Seedorff (May 27, 1999), Franklin App. No. 98AP-1049. An ab use
of discretion connotes more than an error of law or
of judgment; it implies that the court's
attitude is unreasonable, arbitrary or unconscionab le. Berk v. Matthews (1990), 53 Ohio
St.3d 161, 169.
{¶11}
Appellant allegedly served his discovery requests o n May 4, 2002. It is
unclear from the record how appellee responded to t hose requests.
Regardless,
appellant waited until the day of trial to present
the alleged dispute to the trial court.
There is no indication appellant tried to informall y resolve the discovery dispute as
required by Civ.R. 37(E) in the months before bring ing the dispute to the court's attention.
See Briggs v. Glenbeigh Health Serv. (Nov. 30, 2000), Cuyahoga App. Nos. 77395 and
77665 (affirming denial of motion to compel where m ovant failed to informally resolve
dispute). Additionally, appellant's written motion was filed the day after trial. It is obvious
that a motion to compel discovery in a proceeding m ust be filed before trial. Cf. Williams-
Pytlik v. Biviano (Aug. 7, 1998), Trumbull App. Nos. 97-T-0022 and 9 7-T-0063 (finding
trial court did not abuse its discretion in denying
motion to compel that was filed after
judgment). Even assuming appellant orally moved fo r an order compelling discovery on
the day of trial, given the period of time appellan t had before trial to resolve this dispute
with or without the court's assistance, we cannot c onclude that the trial court abused its
discretion in denying the motion. Moreover, withou t a trial transcript, we must presume
the validity of the proceedings below. Appellant's first assignment of error is overruled.
No. 02AP-1207
4
{¶12}
This court is unable to review the merits of appell ant's second and third
assignments of error because appellant has not prov ided a transcript of the trial
proceedings. Miller v. Ameritech, Franklin App. No. 01AP-1209, 2002-Ohio-1313. The
duty to provide a transcript for appellate review i s with the appellant as appellant has the
burden of showing error by reference to the record.
Id., citing Knapp v. Edwards
Laboratories (1980), 61 Ohio St.2d 197, 199. "When portions of
the transcript necessary
for resolution of assigned errors are omitted from
the record, the reviewing court has
nothing to pass upon and thus, as to those assigned
errors, the court has no choice but to
presume the validity of the lower court's proceedin gs, and affirm." Id. Because appellant
has not provided this court with a transcript of th e trial proceedings, we must presume the
validity of the trial court's proceedings and affir m those proceedings. Appellant's second
and third assignments of error are overruled.
{¶13}
Although not argued as a separate assignment of err or, appellant also
contends that appellee waived all the late fees by
accepting appellant's late rent
payments without accessing him late fees. Waiver i s an affirmative defense listed in
Civ.R. 8(C). An affirmative defense must be assert ed by motion pursuant to Civ.R. 12(B),
in a responsive pleading pursuant to Civ.R. 8(C), o r in an amended pleading pursuant to
Civ.R. 15. Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 57; Carmen v. Link
(1997), 119 Ohio App.3d 244, 250. The failure to u tilize any of these methods results in a
waiver of the affirmative defense. Id., citing Spence v. Liberty Twp. Trustees (1996), 109
Ohio App.3d 357, 366.
{¶14}
However, an affirmative defense not raised by motio n or pleading may still
be asserted at trial with the express or implied co nsent of the parties. Millar v. Bowman
(1983), 13 Ohio App.3d 204, 206-207; Cooper v. Grace Baptist Church of Columbus,
Ohio, Inc. (1992), 81 Ohio App.3d 728, 735; Civ.R. 15(B). It
is apparent from the trial
court's decision that the issue of waiver was tried below, although it is not clear whether it
was tried with the express or implied consent of th e parties. Cooper, supra. Even if this
affirmative defense was tried with the express or i mplied consent of the parties, there is
no transcript of the trial court proceedings. With out such transcript, we must presume the
No. 02AP-1207
5
validity of the proceedings and affirm the trial co urt's judgment finding appellee did not
waive its right to charge appellant late fees.
Knapp, supra.
{¶15}
In conclusion, having overruled appellant's three a ssignments of error, we
affirm the judgment of the Franklin County Municipa l Court.
Judgment affirmed.
BRYANT and TYACK, JJ., concur.
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