Kilroy v. B.H. Lakeshore Co. , 111 Ohio App. 3d 357 ( 1996 )

I concur in part and dissent in part with the opinion of the majority in the matter before us.

I concur with the majority in affirming the determination of the trial court in the appellant's fifth assignment of error, and I find that there was no error by the court below in referring the matter to the referee for hearing. Further, I find that the court did not commit error in failing to record the proceedings.

Additionally, I agree with the majority that the record in this case is insufficient for us to review the claimed errors in the appellant's Assignments of Error Two, Three and Four. In accordance with App.R. 12(A)(2), we should disregard these claimed errors of the court below.

However, I must dissent from the majority in its determination that the trial court did not abuse its discretion when it approved the report of the referee.

In the matter before us, a hearing was held and the evidence was presented to the referee. The report of the referee was issued, and appellant filed his objections, which included the failure of the referee to make findings of fact sufficient to support the "findings and recommendations." The trial court approved and confirmed the report of the referee. Appellant's objection to the report of the referee was filed without supporting affidavit or transcript. Civ.R. 53(E)(6) states:

"The court may adopt any finding of fact in the referee's report without further consideration unless the party who objects to that finding supports that finding with a copy of all relevant portions of the transcript from the referee's hearing or an affidavit about evidence submitted to the referee if no transcript is available."

Appellee contends that the appellant failed to make a proper objection to the referee's report by failing to submit either a transcript or an affidavit to support his objections. Failure to submit a transcript or an affidavit is not fatal to this appellant; it merely changes the standard of review on appeal.

The sufficiency of a referee's report may be the basis for an appeal even where the appellant fails to submit a transcript or affidavit. Where a trial court adopts the report of a referee over the unsupported objection filed, the standard, upon appellate review, is abuse of discretion of the trial court. SeeProctor v. Proctor (1988), 48 Ohio App.3d 55, 60,548 N.E.2d 287, 292-293.

Although I agree that the majority used the proper standard in this case, I do not agree with the holding of the majority that the trial court did not abuse its discretion in this case in accordance with Purpura v. Purpura (1986), 33 Ohio App.3d 237, 515 N.E.2d 27, and Civ.R. 53. Purpura, supra, stands for the proposition that the failure to provide a transcript or other evidentiary material to contest the referee's findings allows the trial court to adopt the referee's factual findings without further consideration. The reliance of the majority on Purpura is misplaced.

In Purpura, the referee's report contained findings of fact to which the wife objected. The wife failed to support her objections with evidentiary materials. The court held, in consideration of Civ.R. 53(E)(6), that because she failed to provide a transcript or other evidentiary materials, the trial court could properly adopt the referee's factual findings without further consideration. Such is not the case here.

The "findings" of the referee at issue herein stated intoto:

"Findings

"This matter came on to be heard this 13th day of June, 1995. Present were plaintiff Kilroy pro se and defendant counter claimant B.H. Lakeshore through it's [sic] Building Manager and counsel.

"Plaintiff offered three witnesses and defendant one. Both sides offered extensive exhibits which were admitted and are attached.

"Careful attention was given to the evidence presented and to the demeanor and presentation of the witnesses as well as to the arguments offered.

"Recommendation

"Judgment for the plaintiff and against the defendant in the amount of seven hundred and fifty dollars ($750.00) and for the defendant counter-claimant against the plaintiff in the amount of two thousand two hundred and fifty dollars ($2,250.00). Costs to be shared equally."

This report of the referee is devoid of any findings of fact to support the recommendations given. The report of the referee fails to comply with the rule and is insufficient, as a matter of law, on its face.

Civ.R. 53(E)(1) states:

"The referee shall prepare a report upon the matters submitted by order of reference."

Civ.R. 53(E)(5) provides as follows:

"The report of a referee shall be effective and binding only when approved and entered as a matter of record by the court. The referee's findings of fact must be sufficient for the court to make an independent analysis of the issues and to apply appropriate rules of law in reaching a judgment order. The court may adopt the referee's recommendations about appropriate conclusions of law and the appropriate resolution of any issues. However, the court shall determine whether there is any error of law or other defect on the face of the referee's report even if no party objects an error or defect. The court shall enter its own judgment the issues submitted for action and report by the referee."

The minimum standard necessary for a referee's report was stated by the court in Logue v. Wilson (1975), 45 Ohio App.2d 132,136, 74 O.O.2d 140, 142-143, 341 N.E.2d 641, 644:

"The report of the referee at the minimum requires a statement of the basis of his findings and recommendations in order that the judge may make an independent analysis of its validity prior to approving the report and entering judgment."

In Nolte v. Nolte (1978), 60 Ohio App.2d 227, 14 O.O.3d 215,396 N.E.2d 807, the court further defined the standard for the requirements necessary for the report of the referee. TheNolte court stated that "when a referee's report contains a conclusion regarding an issue in the case, the facts that lead to that conclusion must also be included in the report." Id. at 230, 14 O.O.3d at 217, 396 N.E.2d at 810.

The Nolte court went on to say:

"[W]here the recommended entry form serves the dual purpose of recommending a journal entry and of reporting the referee's findings and conclusions to the trial judge, the report must contain not only a recommendation of the court's order but also the facts presented to the referee upon which that order is based. This situation is ripe for the `rubber stamping' abuses condemned in Logue v. Wilson [(1975), 45 Ohio App.2d 132, 74 O.O.2d 140, 341 N.E.2d 641], supra and in Eisenberg v. Peyton (1978), 56 Ohio App.2d 144 [10 O.O.3d 158] 381 N.E.2d 1136. As we held in Eisenberg, `the trial judge may not render judgment unless and until he has independently analyzed the case; he is in no position to make such an analysis unless the referee's report includes a statement of the facts relevant to the issue before the court.' Eisenberg, supra, at 146 [10 O.O.3d at 159-160,381 N.E.2d at 1138-1139]. Whenever a referee's report contains a legal conclusion but omits the facts necessary to reach that conclusion, the judgment is voidable. Eisenberg, supra, at 151 [10 O.O.3d at 162-163, 381 N.E.2d at 1141]." Nolte,60 Ohio App.2d at 231, 14 O.O.3d at 217-218, 396 N.E.2d at 810-811.

The court in Zacek v. Zacek (1983), 11 Ohio App.3d 91, 93, 11 OBR 143, 145-146, 463 N.E.2d 391, 396, stated:

"We have previously held that Civ.R. 53(E) contemplates a report from the referee which includes a statement of the basis of his finding and recommendations in order that the trial court can make its own independent analysis of the report's validity.Logue v. Wilson (1975), 45 Ohio App.2d 132 [74 O.O.2d 140],341 N.E.2d 641. Accordingly, the report must include sufficientinformation to enable the trial judge to render his owndecision. * * * Obviously, if the report does not include a statement of the facts forming the basis for the referee's recommendation, the trial court cannot adopt the recommendation as an order of the court since the report lacks the necessary information upon which an independent analysis of questions of law raised by the controversy can be based. Nolte v. Nolte (1978), 60 Ohio App.2d 227 [14 O.O.3d 215], 396 N.E.2d 807." (Emphasis added.) Zacek, 11 Ohio App.3d at 93, 11 OBR at 145-146,463 N.E.2d at 396.

The Zacek court went on to say:

"[W]hen a party objects to the referee's report, it is essential that the report include sufficient information to permit the trial court of resolve the legal issues raised by the objection. If the report is insufficient in this regard, or the objection challenges the weight of the evidence, the court will, of necessity, need to supplement the report by referring to a transcript of testimony, hearing additional evidence, returning the report to the referee with instructions or hearing the matter itself." (Emphasis added.) Id. at 94, 11 OBR at 146-147,463 N.E.2d at 396.

In Conn Constr. Co. v. Ohio Dept. of Transp. (1983), 14 Ohio App.3d 90, 14 OBR 104, 470 N.E.2d 176, the court stated:

"Civ.R. 53(E)(1) requires the referee to prepare a report upon the matters submitted to him. Further, it has been held that a referee's report must:

"`* * * contain a statement of facts forming the basis for the referee's recommendation to the trial judge. Absent such a statement, the court cannot adopt the recommendation because itlacks the necessary information to make the required independentanalysis of the case.'" (Emphasis added.) Id., citing Nolte v.Nolte, supra, paragraph one of the syllabus.

Even the case relied upon by the majority, Garcia v. Tillack (1983), 9 Ohio App.3d 222, 9 OBR 372, 459 N.E.2d 918, stated very clearly that:

"Civ.R. 53 requires the referee to prepare a report which contains such factual information as may be necessary to support the findings and recommendations made. Jenkins v. Jenkins (Dec. 1, 1976), Lorain App. No. 2422, unreported. The trial judge is then required to review the report and make an independent analysis of the underlying facts involved in the dispute. It is the duty of the trial judge to critically review and verify the correctness of the referee's report prior to its adoption. Normandy Place Assoc. v. Beyer (1982), 2 Ohio St.3d 102 [2 OBR 653] 443 N.E.2d 161."

In case after case, when analyzing the requirements of Civ.R. 53(E), our courts have directed us that because the trial judge must make an independent analysis before rendering judgment, the report of the referee must be sufficient for him to do so.

"In most cases, where the trial court's entry has adopted the referee's report we have presumed that the court conducted the proper independent analysis. See Birt v. Birt (Dec. 21, 1994) Miami App. No. 94-CA-32, unreported, 1994 WL 718310; Patton [(Oct. 7, 1993), Montgomery App. No. 13929, unreported, 1993 WL 393634], supra. However, where the record has affirmatively demonstrated that the trial did not conduct a proper independent analysis prior to adopting the referee's report, we have reversed the trial court's judgment and ordered the court to comply with the dictates of Civ.R. 53. See Lear v. Brown (Nov. 5, 1993), Miami App. No. 93-CA-17, unreported, 1993 WL 452010."Inman v. Inman (1995), 101 Ohio App.3d 115, 118, 655 N.E.2d 199,201.

The record before us shows that the report of the referee does not contain findings of any facts. The report and the exhibits, when reviewed together, do not create a "finding of fact." The report of the referee herein fails on its face. This report is insufficient, based upon the standards put forth by the court in Nolte, supra. This report of the referee failed to put forth any of the necessary information required for the judge to make an independent analysis of the case. "Obviously, if the report does not include a statement of the facts forming the basis for the referee's recommendation, the trial court cannot adopt the recommendation as an order of the court since the report lacks the necessary information upon which an independent analysis of question of law raised by the controversy can be based." Zacek, supra, 11 Ohio App.3d at 93, 11 OBR at 145-146, 463 N.E.2d at 396.

"The trial court, as the ultimate finder of fact, must make its own factual determinations through an independent analysis of the issues and should not adopt the findings of the referee unless the trial court fully agrees with them." DeSantis v.Soller (1990), 70 Ohio App.3d 226, 232, 590 N.E.2d 886, 890-891.

"[R]eferees serve only in an advisory capacity to the court and have no authority to render final judgments affecting the right of parties." (Emphasis added.) Nolte,60 Ohio App.2d at 231, 14 O.O.3d at 217-218, 396 N.E.2d at 810-811.

Accordingly, Civ.R. 53(E)(2) provides:

"* * * The court may adopt, reject or modify the report; hear additional evidence; return the report to the referee with instructions; or hear the matter itself."

Thus, pursuant to Civ.R. 53(E)(2), the judge in the court below could have:

(1) rejected the report as insufficient on its face,

(2) heard additional evidence,

(3) returned the report to the referee with instruction, or

(4) heard the matter himself.

Without a transcript of proceeding, the judge would be unable to modify the report as there were no facts or transcript before the judge giving him adequate information with which to modify. See DeSantis v. Soller (1990), 70 Ohio App.3d 226,590 N.E.2d 886.

In the matter sub judice, the report of the referee was filed on June 13, 1995. The appellant timely filed his objections to the report on June 27, 1995. The next day, June 28, 1995, the judge adopted the report of the referee and entered judgment. As the court stated in Inman, supra, 101 Ohio App.3d at 119,655 N.E.2d at 202:

"A further indication the trial court did not conduct an independent analysis of the issues tried before the referee is the speed with which the judgment was entered. Twenty-five hours after Mr. Inman responded to Mrs. Inman's objections the trial court filed its entry adopting the referee's report and recommendations. * * * While we applaud prompt decisions by the trial court, it strains credulity to believe that a thorough, independent evaluation of that much material could be conducted in so short a period of time. Although the court in Inman based its observation on the substantial amount of evidence before the court as an indicator that the court failed to perform its independent analysis, in the matter before us, the converse is equally true. The record affirmatively demonstrates that the court was unable to perform an independent analysis in this case. There was no transcript for the judge to review, there were no facts for the judge to evaluate and objections were filed, and yet, within twenty-four hours, the judge was able to conclude that the report of the referee should be `approved and confirmed.'"

The trial judge in the case sub judice adopted the report of the referee over the objection of the plaintiff-appellant that the report contained no facts upon which the judge could properly determine conclusions of law and render judgment. Pursuant to Civ.R. 53(E)(5) and the case law interpreting Civ.R. 53, the report of the referee was insufficient to permit the trial court to make an independent analysis of the issues and to apply appropriate rules of law in reaching its judgment. The trial judge, despite timely filed objections, approved and confirmed the legally insufficient report of the referee and failed to conduct an independent analysis of the issues as required by Civ.R. 53(E)(5). This is the exact "rubber stamp" abuse condemned by the court inLogue v. Wilson, supra.

"The findings of fact, conclusions of law, and other rulings of a referee before and during trial are all subject to the independent review of the trial judge. Thus, a referee's oversight of an issue or issues, even an entire trial, is not a substitute for the judicial functions but only an aid to them. A trial judge who fails to undertake a thorough independent review of the referee's report violates the letter and spirit of Civ.R.53, and we caution against the practice of adopting referee's reports as a matter of course, especially where a referee has presided over an entire trial. Hartt v. Munobe (1993), 67 Ohio St.3d 3,6, 615 N.E.2d 617, 620." (Emphasis added.) Inman,101 Ohio App.3d at 117, 655 N.E.2d at 201.

The trial court in this case adopted the report of a referee which, because it contained no facts, was, on its face, insufficient as a matter of law to support the conclusions.

Although the majority here does not see the adoption of this insufficient referee report by the trial court judge as an abuse of discretion, I believe that this is a clear example of abuse of discretion by the trial judge. "The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,219, 5 OBR 481, 482-483, 450 N.E.2d 1140, 1141. In my opinion, there can be nothing more arbitrary than a judge rendering a judgment without any factual basis for doing so. The court below, although required to make an independent analysis, failed to do so in reaching its judgment. The rules mandate an independent analysis by the judge, and the case law mandates an independent analysis by the judge. I, therefore, would find that it is an abuse of discretion for the trial court to render judgment on a matter before it by merely adopting the report of the referee which was insufficient on its face as a matter of law. Consistent with this determination, I would reverse the decision of the court and remand this matter to the court below for further proceedings.