Summary
holding that a transcript is "unavailable" for purposes of App.R. 9(C) which allows the use of narrative statements when indigent appellant is unable to bear the cost of providing transcript
Summary of this case from Oliver v. OliverOpinion
No. 85-543
Decided April 9, 1986.
Appellate procedure — Court reporter made stenographic record of civil trial — Appellant indigent — "Transcript is unavailable," when — Narrative statement of evidence may be used, when — App. R. 9(C), construed.
APPEAL from the Court of Appeals for Cuyahoga County.
This appeal arose in conjunction with a property damage and personal injury action filed by appellee, Carolyn Motley, and three others in the Cleveland Municipal Court. The case was assigned to appellant Judge Jean Murrell Capers. A four-day jury trial was held during which a court reporter made a stenographic record of the proceedings. After the jury returned a verdict in favor of defendant, appellee filed a notice of appeal and a poverty affidavit with the court of appeals.
Appellee then filed a praecipe directing the municipal court clerk to prepare and assemble the original papers and exhibits filed with the trial court, and a certified copy of the docket and journal entries. The praecipe indicated that the record on appeal would include a narrative statement of the evidence or proceedings as allowed by App. R. 9(C). Appellee filed a proposed narrative statement with the trial court claiming that the cost of a transcript ($1,300) rendered it unavailable to her for the purpose of App. R. 9(C) as she was indigent. The defendant objected to appellee's use of the proposed narrative statement on the ground that App. R. 9(C) permits the use of a narrative statement in place of the actual transcript on appeal only when the transcript is physically unobtainable.
Appellant Judge Capers held a hearing on the defendant's objection to the proposed statement in January 1985. After the hearing she refused to approve the proposed narrative statement, and held that App. R. 9(C) was inapplicable when a court reporter recorded the trial and a stenographic record was made and was available.
As a result of Judge Caper's refusal to approve the proposed narrative statement, appellee filed a mandamus action in the court of appeals against appellants, Judge Capers and Clerk of Court, Jerome Krakowski, and others. Appellee requested the court of appeals to direct Judge Capers to sign the proposed narrative statement, and to direct clerk Krakowski to forward the signed statement to the court of appeals. Alternatively, appellee requested that Judge Capers be compelled to order a transcript from the court reporter at public expense. On March 28, 1985, the court of appeals ruled that a court reporter's transcript was unavailable to indigents for the purposes of App. R. 9(C) and granted appellee's writ of mandamus ordering Judge Capers to comply with App. R. 9(C).
This cause is now before this court upon an appeal as a matter of right.
The court of appeals has stayed its judgment in appellee's property damage/personal injury appeal pending the outcome of this case.
Jerome Silver, for appellee.
John D. Maddox, director of law, Marilyn G. Zack and Heather Graham-Oliver, for appellants.
The question of whether a transcript is unavailable within the meaning of App. R. 9(C) when an indigent appellant in a civil appeal can not afford to have one prepared is one of first impression before this court. All parties in civil actions have a statutory right to appeal an adverse lower court judgment. See R.C. 2505.03. In order to exercise that right, the appealing party must ensure that the trial court transcript is sent to the court of appeals for review. See, generally, App. R. 9. App. R. 9(C) governs situations where the transcript is unavailable and states:
"If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to Rule 10, who may serve objections or propose amendments thereto within ten days after service. 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."
Although this court has never addressed the question raised herein, the Ninth Circuit Court of Appeals did so when interpreting Fed R. App. P. 10(c), which is similar to App. R. 9(C), in Thomas v. Computax Corp. (C.A. 9, 1980), 631 F.2d 139. That court rejected the contention that a transcript was "unavailable" when the appellant was unable to bear its cost. In rejecting that broader interpretation of "unavailable," the Thomas court relied on the fact that Congress has enacted other provisions which allow indigent appellants to obtain a transcript for appeal. If this court were to define "unavailable" for App. R. 9(C) purposes as only "physically unobtainable" we would significantly limit the indigent appellant's right to appeal. Because of the above-described alternatives available to appellants in federal cases, the Thomas court's holding did not so limit the federal appellant's right to appeal.
The narrative statement provided for in App. R. 9(C) is an available, reliable alternative to an appellant unable to bear the cost of a transcript. Thus, in order to preserve an indigent appellant's right to appeal under Ohio law, we will not limit the use of App. R. 9(C) narrative statements to only those cases where a transcript is physically unavailable. Rather, we find that a transcript is unavailable for the purposes of App. R. 9(C) to an indigent appellant unable to bear the cost of providing a transcript.
Thus, we affirm the judgment of the court of appeals granting appellee's requested writ of mandamus and ordering Judge Capers to perform her ministerial duty in accordance with App. R. 9(C).
Judgmment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.