Opinion
No. 72-474
Decided March 21, 1973.
Appeal — Court of Appeals — Assignment of errors — Court to pass on assigned errors in writing — App. R. 12(A) — Effect of failure.
All errors assigned and briefed in the Court of Appeals shall be passed upon by the Court of Appeals in writing, stating the reasons for the court's decision. ( Smith v. Jaggers, 33 Ohio St.2d 1. )
APPEAL from the Court of Appeals for Cuyahoga County.
American Excelsior Corporation, defendant-appellee, sublet a building from the Ohio Dealer's Wallboard Co. in 1965. During appellee's tenancy, a fire of unknown origin occurred on the premises, causing damages which have been agreed to be $134,801.93. Lumbermen's Underwriting Alliance, plaintiff-appellant, paid for the loss and became the subrogee of Ohio Dealer's claim against appellee.
In 1967, appellant brought suit against appellee, predicated upon four particular provisions of the sublease agreement, to wit: (1) a covenant to keep the premises in good repair; (2) a covenant to redeliver the premises in good order to lessor; (3) a covenant not to cause waste or damage to the building; and (4) a covenant to "indemnify and save harmless the lessor from and against any and all mechanics liens, claims, liabilities or damage which may arise or grow out of occupancy * * * or out of any act of the lessee in connection therewith."
In 1969, appellee filed an independent declaratory judgment action for explication of its rights and liabilities under the sublease agreement. Since the two suits shared common questions of law, the causes were consolidated for trial and have remained consolidated throughout this appeal.
Prior to trial, and subsequent to the overruling of motions for summary judgment, on March 5, 1969, appellant requested the opportunity to inspect and copy numerous documents then in the possession of appellee. This request was denied by the Common Pleas Court on December 14, 1970. The case was then set for trial upon the following stipulations:
(1) The two cases are consolidated for trial.
(2) The capacity, standing to sue, insurance coverage and subrogation, of all parties is agreed to.
(3) Damages are stipulated at $134,801.93.
(4) The plaintiff insurance company claims right of subrogation against the American Excelsior Corporation arising out of a fire loss on premises leased by the American Excelsior Corporation which occurred on July 28, 1966.
(5) Plaintiff's claim against the defendant is based upon the provisions of a certain sublease existing between plaintiff's insured and the defendant. The sublease was drafted by plaintiff's insured and signed by both parties.
(6) The fire originated on the premises leased to the defendant. The cause of the fire is undetermined.
Judgment was rendered for the appellee, and an appeal was taken to the Court of Appeals asserting two assignments of error. The Court of Appeals affirmed the decision of the trial court. However, the appellate court did not state its reasons, in writing, for its ruling as to the second assignment of error.
The cause is now before this court pursuant to allowance of a motion to certify the record.
Messrs. Davis Young and Mr. Robert L. Baker, for appellant.
Reminger Reminger Co., L.P.A., and Mr. Mario C. Ciano, for appellee.
Appellant's first proposition of law before this court is that the Court of Appeals committed prejudicial error by failing to comply with App. R. 12(A) in passing upon the second assignment of error before it. We agree.
App. R. 12(A) provides, in pertinent part:
"* * * All errors assigned and briefed [in the Court of Appeals] shall be passed upon by the court in writing, stating the reasons for the court's decision." Here, as in Smith v. Jaggers (1973), 33 Ohio St.2d 1, the Court of Appeals failed to comply with the mandate of App. R. 12(A).
The record in this case bears evidence of the import of App. R. 12(A) and the prejudicial effect of noncompliance therewith. Appellant filed three separate motions for discovery in the Common Pleas Court. Two were filed prior to the overruling of summary judgment; the third was filed subsequent thereto, and had effect under the agreed stipulations with which the causes were sent to trial. Each motion was overruled by the Common Pleas Court without comment.
In the appeal to the Court of Appeals, appellant's second assignment of error was, in effect, that the trial court erred in overruling the motions for discovery requesting the production and inspection of American Excelsior's employee and inventory records, its maintenance and safety records, and its correspondence and reports concerning the fire. This assignment of error was briefed in the Court of Appeals.
The sum comment by the Court of Appeals regarding that assignment of error was:
"We have examined this assignment of error and find that it is without merit and is, therefore, overruled."
Appellant thus found himself in a position of having to prepare an appeal to this court without ever having been given any reason or reasons for the ruling concerning his motions for discovery, other than that the assignment of error was "without merit." Having been given no reason, appellant had to speculate as to what obstacles, legal or otherwise, need be overcome in his appeal to this court. It is a purpose of App. R. 12(A) to avoid a need for such speculation on the part of all parties concerned, this court included.
Appellee contends that the purpose of App. R. 12(A) was satisfied in that there was a written dissent to the holding of the Court of Appeals on the second assignment of error. We cannot agree. Indeed, the statement in the dissenting opinion as to possible prejudicial error serves to emphasize the importance of having the majority make clear its reasons in support of its holding.
App. R. 12(A) modifies R.C. 2505.21 which provides:
"* * * All errors assigned and briefed shall be passed upon [by] the court." In Rothfuss v. Hamilton Masonic Temple Co. (1971), 27 Ohio St.2d 131, this court dealt with the failure of a Court of Appeals to pass upon all assignments of error as required by R.C. 2505.21. This court held:
"Failure by the Court of Appeals to state its reasons for not passing upon all the assignments of error presented to it precludes this court from determining whether there was any merit to the claims of prejudicial error presented to the Court of Appeals by the assignments of error as a predicate to the appeal presented here."
In light of the more express requirement of App. R. 12(A) that the Court of Appeals must, in writing, pass upon all errors assigned and briefed, stating the reasons for its decision, we reaffirm our holding in Rothfuss, supra, by applying it to App. R. 12(A).
The judgment of the Court of Appeals is reversed, and the cause is remanded to that court for compliance with the provision of App. R. 12(A), that all errors assigned and briefed be passed upon by that court in writing, stating the reasons for the court's decision.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, W. BROWN and P. BROWN, JJ., concur.
CELEBREZZE, J., not participating.