State ex rel. Montgomery v. R & D Chemical Co.

[This opinion has been published in Ohio Official Reports at 

72 Ohio St.3d 202

.]




      THE STATE EX REL. MONTGOMERY, ATTY. GEN., APPELLEE, v. R & D
                     CHEMICAL COMPANY ET AL., APPELLANTS.
   [Cite as State ex rel. Montgomery v. R & D Chemical Co., 

1995-Ohio-21

.]
Appellate procedure—Appellant bears burden of preparing transcript for inclusion
        in record—Procedural infirmities—Case to be decided on merits
        nevertheless, where appellant fails to properly file trial transcript, when.
        (No. 94-319—Submitted March 21, 1995—Decided May 17, 1995.)
       APPEAL from the Court of Appeals for Morrow County, No. CA-792.
                                  __________________
        {¶ 1} The facts and procedural posture of this appeal can be gleaned from
appellants' brief and portions of the record properly before this court.
        {¶ 2} Appellant R & D Chemical Company ("R & D Chemical") sold a
machine/system known as the RM 2000 Chrome Removal System ("RM 2000").
Appellant Dr. John Cunningham is a shareholder of R & D Chemical and has served
as president of the company.
        {¶ 3} The RM 2000 was sold primarily to electroplating companies. When
combined by these companies with a chemical compound, the RM 2000 produced
a substance, barium chromate (also referred to as RD-344).                   Pursuant to a
contractual arrangement between R & D Chemical and the companies that
purchased the system, the companies would remove the RD-344 from the RM 2000
system and R & D Chemical would then remove, transport and store the RD-344 in
drums at its facility in Mansfield, Ohio. According to R & D Chemical, RD-344
was a marketable product.
        {¶ 4} In March 1989, appellee, the Attorney General for the state of Ohio,
filed a twenty-one count complaint against appellants and Noble Cunningham, an
employee of R & D Chemical. In the complaint, appellee alleged, among other
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things, that the defendants stored, treated and disposed of hazardous waste in
violation of the state's hazardous waste laws.
        {¶ 5} The case proceeded to a bench trial. The trial court made extensive
findings of fact and conclusions of law and entered judgment in favor of appellee
on all counts. The court assessed a fine of $50,000, finding each defendant to be
jointly and severally liable for the fine imposed. The trial court also ordered
defendants permanently enjoined from treating, storing, transporting or disposing
of RD-344. The court further required that defendants submit a closure plan for the
Mansfield facility, and that they provide financial assurance for its closure.
        {¶ 6} Appellants (R & D Chemical and Dr. John Cunningham) appealed to
the Court of Appeals for Morrow County. The court of appeals affirmed the
judgment of the trial court. Specifically, the court affirmed the findings of the trial
court on the basis that appellants failed to properly file a trial transcript.
        {¶ 7} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                                __________________
        Bieser, Greer & Landis, David C. Greer and Konrad Kircher, for
appellants.
                                __________________
        DOUGLAS, J.
        {¶ 8} This case is fraught with procedural infirmities. The court of appeals
affirmed the judgment of the trial court, finding that appellants failed to properly
file a trial transcript. Indeed, "where a transcript of any proceeding is necessary for
disposition of any question on appeal, the appellant bears the burden of taking steps
required to have the transcript prepared for inclusion in the record. Knapp v.
Edwards Laboratories (1980), 

61 Ohio St.2d 197

, 

15 O.O.3d 218

, 

400 N.E.2d 384

.
Any lack of diligence on the part of an appellant to secure a portion of the record
necessary to his appeal should inure to appellant's disadvantage rather than to the




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                                       January Term, 1995




disadvantage of appellee." Rose Chevrolet, Inc. v. Adams (1988), 

36 Ohio St.3d 17, 19

, 

520 N.E.2d 564, 565-566

.
         {¶ 9} In addition to appellants' omission, we are also confronted with an
omission on the part of appellee. Following the entry of judgment of the court of
appeals, appellants properly perfected an appeal to this court. Appellants timely
filed their notice of appeal, memorandum in support of jurisdiction and merit brief.
Appellee filed a memorandum in response to appellants' memorandum in support
of jurisdiction. Appellee, however, failed to file its merit brief within the time
allowed by the Rules of Practice of this court. Appellee attempted to file its brief
beyond the thirty-day period set forth in S.Ct.Prac.R. VI(2) and, as such, appellee's
brief was properly rejected by the Clerk. Accordingly, we also denied appellee's
request for leave to participate in oral argument. Hence, given appellee's omission
in this court, we are tempted to borrow from App.R. 18(C) and find that the facts,
issues and assertions properly set forth in appellants' brief, when accepted as
correct, reasonably appear to sustain a reversal of the judgment of the court of
appeals.
         {¶ 10} However, rather than attempt to assess which party is more at fault
or which party has committed the more egregious omission, we believe, given the
important issues involved in this case and the fact that a trial transcript is indeed
available1, that this case should be decided on the merits. This court has long
recognized the fundamental tenet of judicial review in Ohio that courts should
decide cases on the merits. Hawkins v. Marion Correctional Inst. (1986), 

28 Ohio St.3d 4

, 28 OBR 3, 

501 N.E.2d 1195

. "Fairness and justice are best served when a
court disposes of a case on the merits." DeHart v. Aetna Life Ins. Co. (1982), 

69 Ohio St.2d 189, 193

, 

23 O.O.3d 210, 213

, 

431 N.E.2d 644, 647

.



1. On May 3, 1994, a transcript of trial was filed in this court as part of this appeal.




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       {¶ 11} For the foregoing reasons, the judgment of the court of appeals is
reversed for the limited reason and on the limited basis that this particular case,
because of the importance of the issues involved and notwithstanding its procedural
deficiencies, should be decided on its merits. Accordingly, the cause is remanded
to that court for further consideration, which consideration should include a review
of the trial transcript as part of a merit consideration and disposition.
                                                                   Judgment reversed
                                                                 and cause remanded.
       MOYER, C.J., RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
       WRIGHT and COOK, JJ., concur separately.
                                    __________________
       COOK, J., concurring.
       {¶ 12} I concur in the judgment of the majority to reverse and remand the
cause to the court of appeals to consider the appeal with the benefit of the trial
transcript. As the dissenting appellate judge noted, the visiting trial judge's opinion
referred to the trial transcript. Thus, the appellants had seen to it that the trial
transcript was timely prepared and submitted to the trial court. It is this fact that
persuades me to remand the cause, not the great or small importance of the issues
presented by the particular case.
       {¶ 13} The failure to ensure that the transcript was returned to the court file
is the type of oversight permitted to be remedied by courts in the interest of
determining cases on the merits. Had the record not shown that the trial transcript
was available for review by the trial court, I would have voted to affirm the
judgment of the court of appeals. See State v. Ishmail (1978), 

54 Ohio St.2d 402

,

8 O.O.3d 405

, 

377 N.E.2d 500

.
       WRIGHT, J., concurs in the foregoing concurring opinion.
                               __________________




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