Hartt v. Munobe

• Decision Date: 28 July 1993
• Docket Number: No. 91-2025,91-2025
• Citation: 615 N.E.2d 617,67 Ohio St.3d 3
• Parties: HARTT, Appellant, v. MUNOBE et al., Appellees.
• Court: Ohio Supreme Court

Page 3

67 Ohio St.3d 3

615 N.E.2d 617

HARTT, Appellant, v. MUNOBE et al., Appellees.

No. 91-2025.

Supreme Court of Ohio.

Submitted March 9, 1993.

Decided July 28, 1993.

SYLLABUS BY THE COURT

Civ.R. 53 authorizes referees to preside over jury trials with the consent of the parties.

In April 1987, plaintiff-appellant George N. Hartt sued defendants-appellees Esse Munobe and Harry Karp, seeking money damages and injunctive relief. The complaint also named as defendants Investors Equities Corporation and Gaylord Resources, S.A., of which Munobe and Karp were, respectively, presidents. Hartt's claims arose from defendants' alleged failure to obtain financing for Hartt's purchase of a business and failure to return a $35,000 loan made to defendants.

Prior to trial, Hartt moved for default judgment on account of defendants' failure to file an answer to his second amended complaint, failure to comply with a court discovery order, and failure to provide timely discovery responses. The trial court granted default judgment as to liability, which defendants then moved to vacate. The court referred this motion to Referee Michael Angel, who recommended that the default judgment be set aside. The court followed Referee Angel's recommendation.

The matter was ultimately scheduled for trial before Judge David L. Johnson on December 18, 1989, and jury selection appears to have taken place that day. Judge Johnson was ill on the following day, however, and Referee Angel was called in to preside over the trial beginning December 19. The jury returned verdicts for the plaintiff, and the court entered judgment thereon. Defendants moved for a new trial, alleging that the referee lacked authority to preside over their trial. The court denied this motion, finding that the Ohio and local rules of procedure permitted referees to preside over jury trials, and that "all parties consented" to the referee's presence.

Defendants appealed, but filed a transcript of only part of the proceedings that took place on December 19, 1989. Based on this record, the court of appeals reversed, holding that the record lacked evidence of unequivocal consent to the referee.

This cause is now before this court pursuant to the allowance of plaintiff's motion to certify the record.

Isaac, Brant, Ledman & Becker, J. Stephen Teetor and Timothy E. Miller, Columbus, for appellant.

James W. Rickman, Columbus, for appellees.

MOYER, Chief Justice.

This case presents several issues, of which the central is whether a referee may preside over a jury trial. If the answer is yes, we must decide whether, in this case, all parties consented to the presence of the referee in conformity to Civ.R. 53(A).

I

The relevant portions of Civ.R. 53 as in effect at the time of trial ¹ state:

"(A) Appointment. The court may appoint one or more referees, who shall be attorneys at law admitted to practice in this state, to hear an issue or issues in any case in which the parties are not entitled to a trial by jury or in any case in which the parties consent in writing or in the record in open court, to submit an issue or issues to a court-appointed referee.

" * * *

"(C) Powers. The order of reference to a referee may specify or limit his powers and may direct him to report only upon particular issues or do or perform particular acts * * *. Subject to the specifications and limitations stated in the order, the referee has and shall exercise the power to regulate all proceedings in every hearing before him as if by the court and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may summon and compel the attendance of witnesses and may require the production before him of evidence * * *. He may rule upon the admissibility of evidence * * *[,] put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath."

Although Civ.R. 53 does not explicitly authorize a referee to preside over a "trial," it authorizes a referee to hear "an issue or issues." There is no limitation as to how many issues he or she may hear; it logically follows that he or she may hear all of them. Furthermore, Civ.R. 53(C) expressly authorizes referees, when hearing an issue, to perform all of the essential duties and functions of a judge. A referee who presides over the determination of every issue in a case, and who in doing so exercises the ministerial functions that Civ.R. 53 expressly authorizes, in effect presides over a trial. Furthermore, Civ.R. 53(E)(1) states in part, "In an action on the merits of an issue to be tried without a jury, the referee shall file with the report a transcript of the proceedings and of the evidence only if the court so directs." (Emphasis added.) This language implies that in some cases issues will be tried before a referee with a jury. Having referees preside over jury trials is, in fact, a well-established practice in the courts of Ohio. See, e.g., Kilgore v. Schindler (July 24, 1989), Richland App. No. CA-2665, unreported, 1989 WL 87039; Bolyard v. Kessler (Sept. 25, 1990), Franklin App. No. 89AP-1458, unreported, 1990 WL 140600; Osterloh v. B.F. Goodrich Co. (Oct. 17, 1991), Franklin App. No. 91AP-382, unreported, 1991 WL 224188.

The court of appeals in this case wrote, "[a] referee who presides over a jury trial effectively acts as a substitute for judicial functions which are not within the scope of Civ.R. 53." We disagree. Civ.R. 53 places upon the court the ultimate authority and responsibility over the referee's findings and rulings. The court must undertake an independent review of the referee's report to determine any errors. Civ.R. 53(E)(5); Normandy Place Assoc. v. Beyer (1982), 2 Ohio St.3d 102, 2 OBR 653, 443 N.E.2d 161, paragraph two of the syllabus. Civ.R. 53(E)(5) allows a party to object to a referee's report, but the filing of a particular objection is not a prerequisite to a trial or appellate court's finding of error in the report. Id., paragraph one of the syllabus. 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.

The report of a referee presiding over an issue or issues without a jury may contain findings of fact, conclusions of law and a recommended resolution of the issues. Civ.R. 53(E)(3) and (5). The parties may then enter objections to the report, upon which the court will rule before entering its own judgment. Civ.R. 53(E)(2). When a jury serves as the trier of fact, however, its findings will not be subject to attack as are a referee's findings. Nevertheless, a party may still object to the referee's report or proposed entry on the basis of errors such as evidentiary rulings or jury instructions. If the court finds that such error occurred, it may reject or modify the report, return the report to the referee with instructions or hear the matter itself. Civ.R. 53(E)(2). Thus, even where a jury is the factfinder, the trial court remains as the ultimate determiner of alleged error by a referee. Accordingly, we hold that Civ.R. 53 authorizes referees to preside over jury trials with the consent of the parties.

In the instant case, defendants filed the functional equivalent of objections, a "Rejection of Proposed Entry" after the jury returned unfavorable verdicts, alleging that "said Entry in noway [sic ] reflects the facts, evidence, ruling [sic ] on objectins [sic ] by a Judge and proper instructions to the Jury on the law and facts in the case by a Judge." Judge Johnson found defendants' objections to be meritless and entered judgment "in conformance with the verdict forms, interrogatories and expressed intentions of the jury," thereby fulfilling his role under Civ.R. 53.

II

Having decided that referees may preside over jury trials with the consent of the parties, we must determine whether the record in this case reflects such consent. We hold that it does. Where the parties are entitled to a jury trial, consent must be in writing or "in the record in open court." Civ.R. 53(A). To forestall any later contention that a party did not consent or did not know that the person on the bench was a referee and not a judge, a referee should identify himself or herself as such and require explicit, on-record statements of consent. Regrettably, it appears that the referee was not so explicit in this case. What does appear in the record, however, is the referee's statement "Judge Johnson is ill. Apparently the parties agree to have this matter presided over by myself [sic ] and the jury." No party objected or commented at this point. A short time later, defendant Munobe himself said, "We will go forward but we will appeal." The record indicates that Munobe intended to appeal the referee's denial of motions to dismiss and for a continuance, not the referee's presiding over the trial. Accordingly, we hold that the record in this case shows that defendants consented to the referral.

The court of appeals stated that the referee may have misled the parties into the belief that he was a judge by certain statements he made at trial. Referee Angel was involved in the pretrial proceedings at least twice, however, sitting for a hearing on a motion for default judgment and preparing a report on defendants' motion to vacate the default judgment. This document, entitled "REFEREE'S REPORT," was mailed to defense counsel. We find it difficult to believe that defendants did not know that Referee Angel...