Eisenberg v. Peyton

• Decision Date: 28 February 1978
• Citation: Eisenberg v. Peyton, 56 Ohio App.2d 144, 381 N.E.2d 1136 (Ohio App. 1978)
• Parties: , 10 O.O.3d 158 EISENBERG, Appellee, v. PEYTON, Appellant.
• Court: Ohio Court of Appeals

Page 144

56 Ohio App.2d 144

381 N.E.2d 1136, 10 O.O.3d 158

EISENBERG, Appellee, v. PEYTON, Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 28, 1978.

Syllabus by the Court

1. Although the trial court may commit error by not fully complying with the procedural requirements of Civil Rule 53, that failure does not affect the jurisdiction of the trial court to hear and determine the action.

2. The failure of a referee to prepare and file a written report and recommendation with the clerk and to deliver a copy to the parties in accord with Civil Rule 53(E) renders the judgment of the trial court voidable, not void.

3. The validity of a judgment of the trial court is not affected by a procedural defect in the lower court's proceedings until a reviewing court has determined that an error was committed and that it worked to the prejudice of the appellant.

Robert I. Bendis, Cleveland, for appellee.

Paul Mancino, Jr., Cleveland, for appellant.

CORRIGAN, Chief Justice.

This is an appeal from a judgment of the Cleveland Municipal Court in favor of the plaintiff appellee in an action for forcible entry and detainer. The appellant's sole assignment of error concerns the referee's actions and the failure to comply with the provisions of Ohio Rules of Civil Procedure, Civil Rule 53. The parties waived oral argument in accordance with Appellate Rule 21(F) and the case was submitted to a panel of three judges of this Court for determination. Due to the need for clarification of the position of this Court on this entire issue as well as the importance of its resolution to the public generally, this panel, after reaching this decision, requested that the full court be convened to discuss the policy. By virtue of Section 8(b) of the standing resolution for conducting the work of the Court of Appeals, Eighth Appellate District, the Chief Justice convened the Court to sit En banc to review its pronouncements on the subject and reach a common policy conclusion.

One decision in particular, involving this matter, Graham v. Graham, unreported, No. 36318, Eighth Appellate District, decided July 7, 1977 caused consternation, principally among litigants in domestic relations cases. It has been inaccurately suggested that all judgments, including thousands of divorces, in which the referee rule was not properly followed were null and void. The purpose of the Court sitting En banc on this matter involving the rule is to state clearly this court's position on the applicability of Civil Rule 53, and to indicate the lack of any effect on previous judgments which have not been appealed for a failure to fully comply with Civil Rule 53.

In this present appeal from a judgment of the Cleveland Municipal Court in an action for forcible entry and detainer, the appellant assigned as error the failure to comply with the provisions of Civil Rule 53. On the day of the hearing, the trial judge entered judgment in favor of the plaintiff, pursuant to the referee's recommendations. While it is not clear from the record exactly when the hearing before the referee took place, the non-compliance with the fourteen-day provision to file objections under Civil Rule 53(E)(2) is apparent on the face of the record, because the court entered judgment only nine days after service was obtained on the appellant. By failing to provide the appellant with an opportunity to file objections to the referee's report, the court was not in a position to give sufficient consideration to the report to adopt it as its own judgment. Ivywood Apartments v. Bennett (1976), 51 Ohio App.2d 209, 213, 367 N.E.2d 1205. In addition to this defect in procedure, the record reflects that the referee's report was never filed with the clerk of courts as required.

A referee is not a judge and may not perform the duties of a judge. Ivywood Apartments v. Bennett, supra at 212, 367 N.E.2d 1205. Civil Rule 53(A) provides that a referee may be used instead of a judge in those cases where the parties do not have a right to a jury trial, or have waived that right. The powers of a referee are limited to regulating the proceedings at the hearing, taking evidence, and making a report and recommendation to the trial court. Wolff v. Kreiger (1976), 48 Ohio App.2d 153, 155, 356 N.E.2d 316. The referee does not have the power to enter judgment in a case. Logue v. Wilson (1975), 45 Ohio App.2d 132, 136, 341 N.E.2d 641. The judgment must be that of the trial court. While the trial court may completely adopt the referee's report as the judgment of the Court, this may not be done unless the report contains sufficient information to allow the Court to make its own independent analysis of the case. Id., at 135-136, 341 N.E.2d 641. Moreover, the trial court may not act upon the referee's report until the report has been filed with the Clerk and the parties have been given the requisite time to file objections to it. Berry v. Berry (1977), 50 Ohio App.2d 137, 141, 361 N.E.2d 1095.

The failure of the referee in the Cleveland Municipal Court to prepare and file a written report and recommendations and deliver a copy thereof to both parties or their counsel in accord with Civil Rule 53(E) renders the judgment of the trial court voidable. Since the judgment of the trial court and the issuance of the writ of eviction "affected a substantial right in an action which in effect determines the action," the appellant had a right to appeal. R.C. 2505.02. The required actions of the referee under the rules are procedural in nature and are not determinative of the case since that power resides solely in the judge. The entry of the judgment by the trial court, not the failure of the referee is the basis for the appeal. Since the appellant Peyton has assigned the Court's failure to follow the rule prior to entering the judgment as error and the record establishes the error, he is entitled to have the judgment of the Cleveland Municipal Court reversed and the case remanded for further proceedings.

In the interest of resolving the controversy which has arisen as a consequence of the judgment entries of this Court in a number of cases dealing with Civil Rule 53, a much fuller discussion is necessary and desirable. In setting aside the judgments below this Court has used such terms as "nullity," "no binding effect on either party," "of no legal effect," "no force and effect," and "void." Some entries of this Court have reversed and remanded the cases for compliance with the rule, while other judgment entries have dismissed the appeals indicating that the order from which the appeal has been taken is not a final order and consequently is not appealable. Reference will be made to this split in approach to the disposition of the appeals later. It should be noted at this point that the jurisdiction of the trial court over the persons and subject matter of the action in the trial court was never questioned in any of these cases.

Some of the cases, notably Graham, supra, Cerio v. Cerio, unreported, No. 35869, Eighth Appellate District, decided May 12, 1977, Antoniazzi v. Antoniazzi, unreported, No. 37965, Eighth Appellate District, decided December 29, 1977 and Finnerty v. Finnerty, unreported, No. 36966, Eighth Appellate District, decided February 2, 1978, seem to stand for the proposition that any judgment entry entered by the trial court after a referee has heard a matter yet failed to comply fully with the rule is invalid as a matter of law and void. A reading of these cases reveals the legal reasoning followed by the particular judges in arriving at their decisions, which were limited to the facts before them. However, the use of the term "invalid" and "void," the latter particularly, suggests that unless there is a full compliance with Civil Rule 53 where required in the trial courts, every judgment, whether appealed or not, is invalidated or nullified. Since some persons feel that these opinions were not specifically limited to the facts of each case and did not exclude retroactive application of the holding, a serious question arises as to the validity of many prior judgments in which referees were used. This is the reason for concern by all litigants involved in any such cases because of the effect on the validity of subsequent marriages, the status of children born therefrom, and various and numerous property rights and business transactions involving themselves and persons dealing with them.

As noted earlier, in none of the cases decided by this Court was the jurisdiction of the trial court over the subject matter or the persons made an issue or discussed in the decisions. It is only in instances in which the trial court lacks jurisdiction that a judgment is void rather than voidable.

In the case of Romito v. Maxwell, Warden (1967), 10 Ohio St.2d 266, at 267, 227 N.E.2d 223, 224, the Supreme Court stated, "The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity." (Tari v. State (1927), 117 Ohio St. 481, 498, 159 N.E. 594.)

Although the trial court may commit error by not fully complying with the procedural requirements of Civil Rule 53, that failure does not affect the jurisdiction of the trial court to hear and determine the action. Inasmuch as the failure to comply with Civil Rule 53 is not jurisdictional, and on its face does not fall within any of the enumerated exceptions to the general rule of waiver of errors not raised in the trial court, any error to be assigned in relation to a failure to comply with Civil Rule 53(E) may in fact and law be waived. That a failure to comply with Civil Rule 53(E) is not jurisdictional in nature is supported by the decision in Lindsay v. Lindsay (1957), 106 Ohio App. 146, 146 N.E.2d 151, in which the Court held that the question of reference is not a jurisdictional matter, but one of procedure. Id., at 152, 146 N.E.2d 151. In the case of ...