Reichert v. Ingersoll

• Decision Date: 17 July 1985
• Docket Number: No. 84-1170,84-1170
• Citation: 480 N.E.2d 802,18 OBR 281,18 Ohio St.3d 220
• Parties: , 18 O.B.R. 281 REICHERT, d.b.a. Reichert Construction Co., Appellant, v. INGERSOLL et al., Appellees.
• Court: Ohio Supreme Court

Page 220

18 Ohio St.3d 220

480 N.E.2d 802, 18 O.B.R. 281

REICHERT, d.b.a. Reichert Construction Co., Appellant, v.INGERSOLL et al., Appellees.

No. 84-1170.

Supreme Court of Ohio.

July 17, 1985.

Blaszak, Shilling, Coey & Bennett, Larry E. Coey and Gary A. Hengstler, Elyria, for appellant.

Harry F. Butler, Elyria, for appellees.

PER CURIAM.

The determinative issue presented in this appeal is whether rescission is a proper remedy under the Ohio Consumer Sales Practices Act, where there has been a substantial change in the subject of the consumer transaction.

Before we address the merits of that issue, we must first inquire as to whether the court of appeals abused its discretion in denying appellant's motion for reconsideration and supplementation of the trial court transcript.The appellate court refused to consider appellant's assignments of error challenging the appropriateness of rescission as a remedy in this case because the record did not disclose an objection to the trial court's jury instruction thereto.Counsel for appellant contends that he was not aware that the portion of the trial transcript evidencing his objection to the charge on rescission had been omitted from said transcript, until he read the appellate court's opinion with respect to his assignments of error.Upon discovery of this omission in the transcript, appellant submitted the missing portion in his motion for reconsideration, along with an affidavit from the court reporter who accepted responsibility for the omission.However, the appellate court decided that appellant was afforded a reasonable amount of time to correct the record prior to its disposition of the case and, therefore, refused to "entertain plaintiff-appellant's motion at this late date."

Our review of the court of appeals' opinions leads us to the conclusion that the tribunal did not seriously entertain the merits of the appeal.As this court stated in DeHart v. Aetna Life Ins. Co.(1982), 69 Ohio St.2d 189, at 192, 431 N.E.2d 644[23 O.O.3d 210]:

"Initially, in evaluating the propriety of the Court of Appeals' action, we hasten to emphasize--indeed re-emphasize--that it is a fundamental tenet of judicial review in Ohio that courts should decide cases on the merits.See, e.g., Cobb v. Cobb(1980), 62 Ohio St.2d 124[403 N.E.2d 991][16 O.O.3d 145].Judicial discretion must be carefully--and cautiously--exercised before this court will uphold an outright dismissal of a case on purely procedural grounds."

In our opinion, the court of appeals below should have considered App.R. 9(E)¹ when it reviewed appellant's motion for reconsideration, based upon the peculiar facts and circumstances within the instant case.We believe that the omission in the transcript was made in good faith, and was not part of a continuing course of conduct for the purpose of delay.Moreover, we find that the appellees are not prejudiced by the omission and that affirmance of the appellate court's decision would frustrate the policy of deciding cases on the merits.Id.

In any event, we find that a reversal and remand in this cause is warranted and necessary, given the clearly erroneous jury instruction that the trial court gave with respect to rescission.The case sub judice was tried under the Ohio Consumer Sales Practices Act, R.C. Chapter 1345. R.C. 1345.09 provides in relevant part:

"For a violation of Chapter 1345 of the Revised Code, a consumer has a cause of action and is entitled to relief as follows:

" * * *

"(C) In any action for rescission, revocation of the consumer transaction must occur within a reasonable time after the consumer discovers or should have discovered the ground for it and before any substantial change in condition of the subject of the consumer transaction."(Emphasis added.)

It is beyond question that rescission or revocation was not even attempted until well after the condition of appellees' home had been substantially changed.This being the case, the jury herein should never have been instructed on rescission, since the same was not a proper remedy under the facts of the case or under Ohio law.This incorrect instruction by the trial court constitutes reversible error because it was relied on by the jury and was objected to by the appellant.Given the nature of the error before us, along with the potential damaging consequences that such error would promote under the Ohio Consumer Sales Practices Act, we are compelled to invoke the doctrine of "plain error" to remedy a manifest miscarriage of justice.Implementation of the plain-error doctrine is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.SeeState v. Long(1978), 53 Ohio St.2d 91, 372 N.E.2d 804[7 O.O.3d 178], paragraph three of the syllabus.The plain-error doctrine permits correction of judicial proceedings when error is clearly apparent on the face of the record and is prejudicial to the appellant.State v. Eiding(1978), 57 Ohio App.2d 111, 385 N.E.2d 1332[11 O.O.3d 113].Although the plain-error doctrine is a principle applied almost exclusively in criminal cases, this court has stated that the doctrine may also be applied in civil causes, even if the party seeking invocation of the doctrine failed to object to the jury instruction in question, if the error complained of "would have a material adverse affect on the character and public confidence in judicial proceedings."Schade v. Carnegie Body Co.(1982), 70 Ohio St.2d 207, 209, 436 N.E.2d 1001[24 O.O.3d 316].See, also, Yungwirth v. McAvoy(1972), 32 Ohio St.2d 285, 288, 291 N.E.2d 739[61 O.O.2d 504].²We find that the instant case presents one of those extremely rare situations in which the plain-error doctrine must be invoked in order to prevent a manifest miscarriage of justice, since the result reached by the trial court is patently contrary to R.C. 1345.09(C).Clearly, the General Assembly did not intend the unusual result rendered by the trial court and, therefore, we reverse the judgment below in order to maintain the integrity and fundamental fairness of the Ohio Consumer Sales Practices Act.

In sum, we find that the error rendered below was of such an egregious nature that reversal is necessitated under the exceptional doctrine of plain error.Additionally, we hold that the court of appeals abused its discretion in failing to seriously reconsider the merits of appellant's arguments.

It should be noted that appellant concedes that he violated the Ohio Consumer Sales Practices Act, albeit inadvertently, and that he no longer seeks the amount prayed for in his complaint.Notwithstanding this concession, we find that the trial court acted properly in ordering removal of the mechanic's lien placed upon appellees' property.

Accordingly, we hold that pursuant to R.C. 1345.09(C), rescission is not a proper remedy where there has been a substantial change in the subject of the consumer transaction.Therefore, we reverse the judgment of the court of appeals, and remand the cause to the trial court for further proceedings with respect to the issue of damages.

Judgment reversed and cause remanded.

SWEENEY, LOCHER, HOLMES, CLIFFORD F. BROWN and WRIGHT, JJ., concur.

DOUGLAS, J., concurs in judgment only.

CELEBREZZE, C.J., dissents.

CELEBREZZE, Chief Justice, dissenting.

While I do not dispute, as an abstract principle of law, that the trial court's jury instruction on...