Lincoln Properties, Inc. v. Goldslager

• Decision Date: 28 May 1969
• Docket Number: No. 68-490,68-490
• Citation: 47 O.O.2d 316,248 N.E.2d 57,18 Ohio St.2d 154
• Parties: , 47 O.O.2d 316 LINCOLN PROPERTIES, INC., Appellant, v. GOLDSLAGER, Treas.; City of Whitehall, Appellee.
• Court: Ohio Supreme Court

Page 154

18 Ohio St.2d 154

248 N.E.2d 57, 47 O.O.2d 316

LINCOLN PROPERTIES, INC., Appellant, v. GOLDSLAGER, Treas.; City of Whitehall, Appellee.

No. 68-490.

Supreme Court of Ohio.

May 28, 1969.

Syllabus by the Court

1. A trial de novo is an independent judicial examination and determination of conflicting issues of fact and law, notwithstanding the evidence before the appellate court consists of the record of the proceedings in the lower tribunal.

2. Parties to an appeal on questions of law and fact are entitled to a trial de novo, and the appellate court must determine the facts and give judgment disposing of the issues of law and fact as if no trial had been had in the lower tribunal.

3. In an appeal on questions of law and fact, a Court of Appeals is without power to remand the cause to the inferior court for further proceedings tantamount to a new trial, but is required to substitute its independent judgment for that of the inferior court and to grant final judgment in accordance with its findings on the evidence before it.

The plaintiff sought to enjoin the collection of a special assessment for a portion of the cost of widening, resurfacing, curbing and sewering Hamilton Road upon which its real estate abutted in the city of Whitehall. The Court of Common Pleas of Franklin County granted judgment for the defendants.

In an appeal on questions of law and fact, the Court of Appeals reversed the judgment of the lower court and remanded the cause to the trial court to permit the defendant city of Whitehall to introduce evidence to show the amount by which plaintiff's property was specially benefited.

Chamblin, Snyder & Henry and Larry H. Snyder, Columbus, for appellant.

James M. Toomey, City Solicitor, Robert E. Albright, Columbus, for appellee city of Whitehall.

SCHNEIDER, Judge.

Unlike the cases of Glass v. Dryden (1969), 18 Ohio St.2d 149, 248 N.E.2d 54; and Schiff v. City of Columbus (1967), 9 Ohio St.2d 31, 223 N.E.2d at 54, the plaintiff here presented sufficient evidence at the trial, if believed, to establish that the value of its real estate after the completion of the improvements, the cost of which was partially assessed against the property, was less than its value before the improvements. The defendants presented no evidence. Nevertheless, the trial court refused the injunction.

In his opinion, the trial judge appeared to justify his decision on his conclusion that a temporary decrease in market values as a result of an improvement is not entirely decisive of the question of lack of benefit, but that prospective benefits, whose impact had not yet been reflected in market values, should be considered. Yet it was implicit, in the view of the Court of Appeals, that 'the trial court would not blindly accept such testimony of value as offered by the plaintiff.' The Court of Appeals weighed the evidence contained in the record of the proceedings in the trial court, and accepted the testimony of value, which it had the power to do under the authority of Section 2501.02, Revised Code. ¹ The defendants did not attempt to present any evidence to the Court of Appeals pursuant to Section 2505.21, Revised Code. ² The sole question, therefore, is: Did the Court of Appeals err in refusing to exercise its jurisdiction, in an appeal on questions of law and fact, to substitute its judgment for that of the inferior court by granting final judgment for the plaintiff in accordance with its findings on the evidence and in remanding the case to the Court of Common Pleas? We conclude that it did so err. We reverse the judgment of the Court of Appeals and remand the cause to that court, with instructions to grant the injunction as prayed for.

In an appeal on questions of law only, where a Court of Appeals finds that the judgment under review is against the weight of the evidence (as distinguished from a finding that a judgment is unsupported by sufficient credible evidence) it is compelled by copious prior decisions of this court to remand the cause for a new trial irrespective of whether it is one in which a trial by jury is constitutionally protected (Candela v. New York Central System (1960), 171 Ohio St. 373, 171 N.E.2d 512; State v. Geghan (1957), 166 Ohio St. 188, 140 N.E.2d 790; State v. Robinson (1955), 162 Ohio St. 486, 124 N.E.2d 148; Bishop v. East Ohio Gas Co. (1944), 143 Ohio St. 541, 56 N.E.2d 164; Nyiry v. Modern Brotherhood of America (1915), 92 Ohio St. 387, 110 N.E. 943; Stugard v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. (1915), 92 Ohio St. 318, 110 N.E. 956, Cavey v. Iliff (1911), 84 Ohio St. 456, 95 N.E. 1144; Gay v. Davey (1890), 47 Ohio St. 396, 25 N.E. 425; Stivers v. Borden (1870), 20 Ohio St. 232); or the right to jury trial has been waived (State v. Gilkerson (1965), 1 Ohio St.2d 103, 205 N.E.2d 13; Schafer v. Wells (1961), 171 Ohio St. 506, 172 N.E.2d 708; Miller v. Indus. Comm. (1953), 158 Ohio St. 551, 110 N.E.2d 481; Gardner v. Indus. Comm. (1947), 148 Ohio St. 141, 73 N.E.2d 802; Bridgeport Bank Co. v. Shadyside Coal Co. (1930), 121 Ohio St. 544, 170 N.E. 358; Miller v. J. T. Sullivan & Co. (1875), 26 Ohio St. 639); or there is no right to a jury trial (In re Lewis (1966), 8 Ohio St.2d 25, 222 N.E.2d 628 (refusal of consent to adoption); In re Estate of Witteman (1965),3 Ohio St.2d 66, 209 N.E.2d 427 (election of surviving spouse); In re Cassada (1960), 171 Ohio St. 368, 171 N.E.2d 511 (refusal of consent to adoption); Bown & Sons v. Honabarger (1960), 171 Ohio St. 247, 168 N.E.2d 880 (foreclosure of lien); In re Lieberman (1955), 163 Ohio St. 35, 125 N.E.2d 328 (disbarment); Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118 (cancellation of contract); Trickey v. Trickey (1952), 158 Ohio St. 9, 106 N.E.2d 772 (custody of child); Henry v. Henry (1952), 157 Ohio St. 319, 105 N.E.2d 406 (alimony award); In re Estate of Murnan (1949), 157 Ohio St. 529, 87 N.E.2d 84 (fiduciary fees); State, ex rel. Squire, v. Cleveland (1948), 150 Ohio St. 303, 82 N.E.2d 709 (injunction); In re Estate of Johnson (1943), 142 Ohio St. 49, 49 N.E.2d 950 (counsel fees); Campbell v. Campbell (1934), 128 Ohio St. 590, 193 N.E. 405 (divorce); Minnear v. Holloway (1897), 56 Ohio St. 148, 46 N.E. 636 (special proceedings in aid of execution of judgment). But compare Weeden v. Weeden (1927), 116 Ohio St. 524, 156 N.E. 908 (divorce reversed but cause not remanded)).

On the other hand, even if the instant appeal had been prosecuted on questions of law only, and the Court of Appeals had found that the trial court erred solely in applying the law to facts about which there was absolutely no conflict in the evidence, the Court of Appeals would have been authorized to enter judgment for the plaintiff. Yeoman v. Lasley (1883), 40 Ohio St. 339.

We have referred to cases involving appeals on questions of law (formerly 'error proceedings') to emphasize, first, what this case is not; and, second, that no reported case has been discovered in which an intermediate appellate court in Ohio (whether a Court of Appeals or Circuit Court) has similarly disposed of an appeal on questions of law and fact (formerly 'appeal') after finding that the weight of the evidence required a judgment or decree contrary to that of the lower court.

Indeed, we find that the Court of Appeals, in effect, treated the instant appeal as one on questions of law, notwithstanding the plaintiff had met all the requirements for an appeal on questions of law and fact and, therefore, had perfected its valuable right to a disposition of the appeal on that basis. See Union Trust Co. v. Lessovitz (1930), 122 Ohio St. 406, 414, 171 N.E. 849. ³

Historically, the right to an appeal on questions of fact enjoyed constitutional protection (Kiriakis v. Fountas (1924), 109 Ohio St. 553, 143 N.E. 129) and, conceptually, 'the appeal itself vacates, without revisal, the whole proceeding as to findings of fact as well as law, and the case is heard upon the same or other pleadings, and upon such competent testimony as may be offered in * * * (the Court of Appeals). It takes up the subject of the action de novo, in respect to pleadings, necessary parties, trial, and judgment, in like manner as if the cause had never been tried below.' Morgridge v. Converse (1948), 150 Ohio St. 239, 245, 81 N.E.2d 112, 115, quoting from Mason v. Alexander (1886), 44 Ohio St. 318, 328, 7 N.E. 435. See, also Barnes v. Christy (1921), 102 Ohio St. 160, 131 N.E. 352, and Toledo & Ohio Central Ry. Co. v. hartford (1920), 101 Ohio St. 520, 130 N.E. 942. The party interested in obtaining relief has the burden of proof, notwithstanding he is the nominal appellee. Cupps v. Toledo (1961), 172 Ohio St. 536, 179 N.E.2d 70.

The cause 'no longer remains in the court below, the judgment of the court below is vacated, and the whole case goes up for trial de novo. The appellate court has the same jurisdiction of the subject-matter of the action, of the pleadings, and the final determination of the case as the court below had.' Russell v. Fourth Natl. Bank (1921), 102 Ohio St. 248, 263, 131 N.E. 726, 731. The 'review requires the exercise of an independent judgment of the court.' In re Joint County Ditch (1930), 122 Ohio St. 226, 230, 171 N.E. 103, 105. '(T)he Court of Appeals must therefore render final judgment, even though its judgment be contrary to that of the trial court.' (Emphasis supplied.) Bridgeport Bank Co. v. Shadyside Coal Co. (1930), 121 Ohio St. 544, 548, 170 N.E. 358, 360.

It is apparent that a significant number of Courts of Appeals have correctly understood this right and have given it vitality. See, for example, Oliver v. All-States Freight, Inc. (Ohio App.1957), 156 N.E.2d 190, 195 ('This court is a trial court, and we are called upon to determine questions of fact.'); Mahrt v. First Church of Christ, Scientist (Ohio App.1956), 142 N.E.2d 678, 680 ('The judgment of this court * * * will not be an affirmance of the common pleas court * * *. This...