Opinion
No. 85-566
Decided March 12, 1986.
Mandamus to compel settling of previously submitted and disapproved narrative statement — App. R. 9(C) — Case moot, when.
APPEAL from the Court of Appeals for Cuyahoga County.
Appellant, Henry J. Fant, was the plaintiff in an action filed in Cleveland Municipal Court, Small Claims Division, seeking to recover from his former landlord his security deposit in the amount of $150 together with damages for the landlord's alleged failure to return such security deposit. This action was brought pursuant to R.C. 5321.16(B) and (C). The matter proceeded to a hearing before a referee, but no transcript of the hearing was made.
Following the hearing, the referee found the security deposit was due but that, while the check previously issued to appellant covering the security deposit was returned for insufficient funds, there was not such a showing of bad faith by the landlord sufficient to assess damages under R.C. 5321.16(C). The reason given therefor was that, unknown to the landlord, a restraining order had been placed against the account on which the check was drawn.
Appellant then filed a timely objection to the referee's report and a hearing on the objection was afforded before appellee, Judge George W. Trumbo. Appellee sustained the referee's report on June 18, 1984 and filed his own findings of fact and conclusions of law on July 5, 1984. These findings specifically made reference to the circumstances behind the landlord's issuance of the check drawn without sufficient funds. On July 2, 1984, appellant filed a motion for new trial, contending that appellee had improperly considered testimony at the hearing on appellant's objections to the referee's report. The motion for new trial was denied on August 2, 1984 and appellant appealed. In connection with such appeal, appellant issued a praecipe directing the clerk to prepare original papers, including a "[s]tatement of [the] evidence or proceedings under Rule (9)." Appellant then filed his own narrative statement with the appellee, after which the appellee entered the following judgment entry on September 25, 1984:
"The Statement of Proceedings and Evidence (App. R. 9(C)[)] submitted by Plaintiff is not approved and * * * [reference is made] to the Findings of Fact and Conclusions of Law submitted by the Court on the 7th [ sic] day of July, 1984 as representative of the facts at hand."
Appellant thereupon filed a mandamus action in the court of appeals on January 8, 1982, in essence praying for an order compelling appellee to settle appellant's previously submitted and disapproved narrative statement. Appellee filed a motion to dismiss, appending thereto a copy of his own statement of the evidence or proceedings which had been filed with the Clerk of Cleveland Municipal Court on February 27, 1985. The court of appeals granted appellee's motion to dismiss.
The cause is now before this court upon an appeal as a matter of right.
Henry J. Fant, pro se. John D. Maddox, director of law, and Heather Graham-Oliver, for appellee.
Appellee's February 27, 1985 filing with the clerk of the municipal court of his own statement of the evidence or proceedings mooted the relief requested by appellant in the mandamus action filed below.
The court of appeals properly found that "* * * the App. R. 9(C) record now settled by the trial judge satisfied his duty in this matter by reciting that the trial judge heard no further evidence after receiving the referee's report." Moreover, while App. R. 9(C) does mandate settlement and approval by the trial court of a statement of evidence or proceedings, such approval is not required by the trial court as to those statements of evidence or proceedings which the trial court finds inaccurate.
Any questions appellant has concerning the adequacy or accuracy of appellee's statement of the evidence or proceedings can be raised on appeal to the court of appeals. App. R. 9(E) provides that "* * * either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals."
By reason of the foregoing, the judgment of the court of appeals, dismissing the mandamus complaint, is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.