Rice v. Bowler , 2012 Ohio 2612 ( 2012 )

[Cite as Rice v. Bowler, 2012-Ohio-2612.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
CLYDE D. RICE C.A. No. 25960
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MICHAEL B. BOWLER, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CV-2008-07-5107
DECISION AND JOURNAL ENTRY
Dated: June 13, 2012
BELFANCE, Judge.
{¶1} Clyde Rice appeals the trial court’s judgment in favor of Michael Bowler. For
the reasons set forth below, we affirm.
I.
{¶2} Mr. Rice filed a malpractice action against Mr. Bowler, who had represented him
in a criminal proceeding, and Mr. Bowler’s law firm. Mr. Rice claimed that Mr. Bowler had
negligently failed to move to dismiss the charges for violating Mr. Rice’s right to a speedy trial.
Instead, according to Mr. Rice, Mr. Bowler urged him to plead guilty, which he did.
{¶3} Following a contentious discovery period, both parties moved for summary
judgment, which the trial court denied. In lieu of a full trial on all of the issues, the parties
entered into a joint stipulation in which the parties stipulated to eight facts and asked the trial
court to resolve whether Mr. Rice’s speedy trial rights had been violated. The parties also agreed
to waive any right to appeal the trial court’s decision on that issue. The trial court found that had
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the question been presented to it at trial, it would have found that the speedy trial time was not
tolled pending Mr. Rice’s request for a dispositional hearing. It would have also found that the
Medina County authorities failed to exercise reasonable diligence to secure Mr. Rice’s
availability for trial. The trial court acknowledged that the process of reaching its conclusion “is
convoluted at best[]” and that it was entirely possible that the trial judge in the Medina case
would have disagreed with the trial court. The trial court further found that the docket clearly
demonstrated that the negotiated plea and sentence of four years was a result far superior to the
potential sentence of eight years on the second-degree felony charged in the indictment. Thus,
the trial court concluded that Mr. Rice could not establish by the weight of the evidence that Mr.
Bowler breached any duty owed to Mr. Rice. Mr. Rice has appealed, raising two assignments of
error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY GOING OUTSIDE OF THE PARAMETERS
OF THE STIPULATION AND AGREEMENT OF THE PARTIES
RENDERING THE WAIVER OF APPEAL RIGHTS INVALID.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY HOLDING THAT APPELLEE WAS NOT
NEGLIGENT AFTER DETERMINING THAT THE APPELLANT’S
CONSTITUTIONAL AND STATUTORY RIGHTS TO A SPEEDY TRIAL
HAD BEEN VIOLATED.
{¶4} Mr. Rice argues in his first assignment of error that the trial court went beyond the
parameters of the stipulation of the parties when it determined that his speedy trial rights were
violated, but also found that Mr. Bowler was, nonetheless, not liable for malpractice. In other
words, Mr. Rice challenges the terms and the scope of the stipulation. In his second assignment
of error, Mr. Rice argues that the trial court’s determination that Mr. Rice’s indictment could
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have been dismissed for speedy trial reasons required the trial court to find Mr. Bowler liable for
malpractice.
{¶5} We note, however, that Mr. Rice has not supplied this Court with a complete
record of the proceedings below. Specifically, the record does not contain a transcript of the
January 25, 2011 hearing at which the parties apparently reached the agreement at the center of
this appeal. Though Mr. Rice did request preparation of the transcript, it was never filed with the
record on appeal in accordance with the applicable appellate rules. However, Mr. Bowler did
attach a copy of the transcript of the hearing to a motion to dismiss the appeal, and Mr. Rice
attached a copy in the appendix of his brief. The copy attached to Mr. Rice’s brief was stricken
for failure to comply with Loc.R. 7(B)(9) and, regardless, neither party moved the supplement
the record with the transcript. See Loc.R. 5(A)(3) (“No additions may be made to the record
after the date on which the notice of the filing of the record is mailed to the parties except upon
leave of the court of appeals to supplement the record.”).
{¶6} “This Court has repeatedly held that it is the duty of the appellant to ensure that
the record on appeal is complete.” (Internal quotations and citations omitted.) Riggle v.
McFadden, 9th Dist. No. 08CA0007, 2008-Ohio-5656, ¶ 5. Because this transcript is not in the
record, we are unable to properly review the scope of the stipulations and agreement not to
appeal. Nor are we able to properly review the trial court’s determination of liability because it
is unclear precisely what was said or agreed to at the January 25, 2011 hearing. Therefore, we
must presume regularity in the proceedings below and affirm the judgment of the trial court. Id.,citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).
{¶7} Accordingly, Mr. Rice’s assignments of error are overruled.
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III.
{¶8} Mr. Rice’s assignments of error are overruled, and the judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
DICKINSON, J.
CONCUR.
APPEARANCES:
CLYDE D. RICE, pro se, Appellant.
ROBERT C. MEEKER, Attorney at Law, for Appellee.