Opinion
No. 81-1663
Decided July 7, 1982.
Mandamus — To compel filing of settlement statement — Writ not available, when — Appeal — App. R. 9(B), construed.
APPEAL from the Court of Appeals for Lake County.
Appellant, Mentor Lagoons, Inc., initiated a landlord-tenant action before appellee, Clancy Strader, Acting Judge of the Mentor Municipal Court. At trial, the court appointed William Corlett, the bailiff of that court, to attend an audio tape recording machine for three of the four days of the trial, and Ruth Beebe, the court's assignment commissioner, to attend the machine on the other day. Both of them left the courtroom briefly on various occasions, but each routinely checked the tape recorder upon return. Neither found the tape recorder to be malfunctioning.
After ruling in favor of the defendants, appellee filed an opinion containing "Findings of Fact and Legal Conclusions." Appellant timely appealed. Appellee has refused to accept appellant's "Statement of the Evidence and Proceedings" as part of the record on appeal.
In order to produce a typewritten transcript, it would be necessary to play the tape recorder in the courtroom or use a similar machine elsewhere. It is stipulated that Ruth Beebe can type, but William Corlett cannot. Corlett has retired from the court and is now in Florida.
Appellant requested the Court of Appeals to issue a writ of mandamus, requiring appellee to file a settlement statement of the evidence and proceedings under App. R. 9. The Court of Appeals denied the writ.
App. R. 9(C) provides, in part, that after the appellant has prepared and served "a statement of the evidence or proceedings": "* * * Thereupon, the statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act thereon prior to the time for transmission of the record pursuant to Rule 10, and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal."
The cause is now before this court on an appeal as of right.
Mr. Albert C. Nozik, for appellant.
Baker, Hackenberg, Haskell Collins Co., L.P.A., and Mr. I. James Hackenberg, for appellee.
App. R. 9(B) provides, in part: "* * * The reporter is the person appointed by the court to transcribe the proceedings for the trial court whether by stenographic, phonogramic or photographic means, or by the use of audio electronic recording devices, or by the use of video recording systems. * * *"
Clearly, under App. R. 9(B), Corlett and Beebe were the reporters in this case. Yet, appellant argues that it is entitled to submit an App. R. 9(C) narrative statement instead of a transcript, because App. R. 9(B) further provides: "* * * If there be no officially appointed reporter, Rule 9(C) or 9(D) may be utilized. * * *" Appellant suggests that an officially appointed reporter must be a professional court reporter in spite of the fact that it is stipulated that the court appointed both Corlett and Beebe. We refuse, however, to construe "* * * App. R. 9(B) in a hypertechnical manner not required by the facts of this cause * * *." Farmers Banking Co. v. Hinkle (1976), 46 Ohio St.2d 374, 377 [75 O.O. 2d 448, 450].
Appellant also bases its request for a writ of mandamus on the fact that Corlett cannot type and has retired to another state. "In order to grant a writ of mandamus, a court must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law. ( State, ex rel. Harris, v. Rhodes, 54 Ohio St.2d 41 [8 O.O. 3d 36].)" State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42 [15 O.O. 3d 53], paragraph one of the syllabus. Appellant has not requested a transcript, however, and it has not demonstrated that a transcript is unavailable. See App. R. 9(C); cf. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197 [15 O.O. 3d 218]. Appellant, therefore, does not have a clear legal right to a settlement statement.
Accordingly, we affirm the judgment of the Court of Appeals, denying the writ of mandamus.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.