Opinion
Nos. 84-1344 and 84-1405
Decided July 31, 1985.
Appellate procedure — Appeal may not be sua sponte dismissed for defect in mode of service of appellant's brief — App. R. 18(A) and (C), construed.
O.Jur 3d Appellate Review §§ 444, 450. O.Jur 3d Criminal Law §§ 1489, 1499.
A court of appeals may not dismiss, sua sponte, an appeal based upon a defect in the mode of service of an appellant's brief, when said brief was otherwise timely filed before the appellate court. (App. R. 18[A] and [C], construed.)
APPEALS from the Court of Appeals for Logan County.
Two cases have been consolidated for review herein because they raise the same issues on appeal.
In case No. 84-1344, defendant-appellant, Michael Herzing, was arrested on July 16, 1983 by state highway patrolman Sgt. R.A. Fredendall, and was subsequently charged with two counts of driving while intoxicated (R.C. 4511.19[A][1] and [3]). Herzing pleaded "not guilty" to both charges before the Bellefontaine Municipal Court. On October 10, 1983, Herzing filed a motion to suppress the results of the intoxilyzer test, alleging that the intoxilyzer had not been properly calibrated prior to the time the test was performed on him on the night of his arrest. It was appellant's contention that the solution used to calibrate the intoxilyzer was not stored in its original container in direct contravention to Instruction No. 009 of the Rules of the Department of Health.
In case No. 84-1405, defendant-appellant, James Williams, was arrested on July 2, 1982 by the same state highway patrolman who arrested Herzing. Williams was also charged with two counts of driving while intoxicated before the Bellefontaine Municipal Court, and he pleaded "not guilty" to both charges. On October 25, 1983, Williams filed a motion to suppress the results of the intoxilyzer test performed upon him, using the same rationale supplied by Herzing in case No. 84-1344.
On November 3, 1983, both motions to suppress were consolidated for consideration by the trial court. After receiving evidence and testimony concerning the manner of calibration undertaken by the Bellefontaine Post of the State Highway Patrol, the trial court overruled both motions on December 13, 1983. The trial court reasoned that while there was a possibility of contamination of the calibration solution, there was no direct evidence indicating actual contamination.
On January 24, 1984, Herzing entered a plea of "no contest" to a single charge under R.C. 4511.19(A)(3). The only evidence introduced by the state aside from the patrolman's testimony was the result of the intoxilyzer test. Despite Herzing's renewed objection to the admissibility of such evidence, the trial court found Herzing "guilty" of violating R.C. 4511.19(A)(3).
On January 24, 1984, Williams was tried on both counts of driving while intoxicated. Once again, the results of the intoxilyzer test were introduced and admitted by the trial court over appellant's objection. After the trial court found Williams "guilty" on both counts, the state elected to proceed upon the charge filed under R.C. 4511.19(A)(3), and it was from the conviction and sentence imposed thereunder that appeal was taken to the court of appeals.
Both causes were appealed to the court of appeals; however, the appellate court ordered that briefs of appellants be stricken, and then dismissed both appeals, sua sponte, for want of prosecution, holding that appellants' briefs were not timely served upon the state, even though the briefs were otherwise timely filed before the court of appeals.
The causes are now before this court pursuant to the allowance of motions to certify the record.
Don W. Fraser, for appellees.
John L. Ross, for appellants.
The causes sub judice have been certified for disposition without the benefit of an appellate court review of the issue on the merits, i.e., whether the trial court acted properly in admitting the results of the intoxilyzer tests performed on both appellants.
In DeHart v. Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189 [23 O.O.3d 210], this court stated at 192:
"* * * [I]t is a fundamental tenet of judicial review in Ohio that courts should decide cases on the merits. See, e.g., Cobb v. Cobb (1980), 62 Ohio St.2d 124 [16 O.O.3d 145]. Judicial discretion must be carefully — and cautiously — exercised before this court will uphold an outright dismissal of a case on purely procedural grounds."
Although the holding in DeHart is not on all fours with respect to the cases before us, its reaffirmation of this court's philosophy with respect to judicial review is relevant to our disposition of the appeals herein.
The appellate court below dismissed both appellants' causes because of a purported technicality in the Appellate Rules. The court of appeals' dismissals, in our view, have no support under either the Appellate Rules, or under the common law of this state.
In reviewing the pertinent rules upon which the appellate court based its decisions, we find that App. R. 18(A) provides in part:
"Except as provided in Rule 14(C), the appellant shall serve and file his brief within twenty days after the date on which the clerk has mailed the notice required by Rule 11(B). * * *" (Emphasis added.)
Appellants contend, and the state agrees, that the Rules of Appellate Procedure clearly distinguish between the obligation to file and the obligation to serve an appellant's brief. App. R. 18(C) provides a specific, although discretionary, sanction should an appellant fail to file his brief in a timely fashion as prescribed under App. R. 18(A).
App. R. 18(C) states in relevant part:
"If an appellant fails to file his brief within the time provided by this rule, or within the time as extended, the court may dismiss the appeal. * * *" (Emphasis added.)
However, as appellants correctly contend, nothing in this rule condones or sets forth an available sanction to the court of appeals should an appellant fail to serve his brief in a timely fashion, or for any defect in the mode of service caused by an appellant. This being the case, we hold that a court of appeals may not dismiss, sua sponte, an appeal based upon a defect in the mode of service of an appellant's brief, when said brief was otherwise timely filed before the appellate court.
We believe that our construction of App. R. 18 is compelled by the language (or lack thereof) contained within the rule, and is consonant with the fundamental tenet of judicial review of deciding cases on their merits, as we enunciated in DeHart, supra. Since the appellate court's dismissals of appellant's causes were without statutory or common-law authority, as even the appellee-state concedes, we find no conceivable justification for a disposition by the court of appeals, other than on the merits.
Therefore, the judgments of the court of appeals are reversed, and the causes are remanded to that court for a consideration of the instant appeals on their merits.
Judgments reversed and causes remanded.
CELEBREZZE, C.J., LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.