State ex rel. Montgomery v. R & D Chem. Co.

• Decision Date: 17 May 1995
• Docket Number: No. 94-319,94-319
• Citation: 648 N.E.2d 821,72 Ohio St.3d 202
• Parties: The STATE ex rel. MONTGOMERY, Atty. Gen., Appellee, v. R & D CHEMICAL COMPANY et al., Appellants.
• Court: Ohio Supreme Court

Page 202

72 Ohio St.3d 202

648 N.E.2d 821

The STATE ex rel. MONTGOMERY, Atty. Gen., Appellee, v. R & D CHEMICAL COMPANY et al., Appellants.

No. 94-319.

Supreme Court of Ohio.

Submitted March 21, 1995.

Decided May 17, 1995.

The facts and procedural posture of this appeal can be gleaned from appellants' brief and portions of the record properly before this court.

Appellant R & D Chemical Company ("R & D Chemical") sold a machine/system known as the RM 2000 Chrome Removal System ("RM 2000"). Appellant Dr. John Cunningham is a shareholder of R & D Chemical and has served as president of the company.

The RM 2000 was sold primarily to electroplating companies. When combined by these companies with a chemical compound, the RM 2000 produced a substance, barium chromate (also referred to as RD-344). Pursuant to a contractual arrangement between R & D Chemical and the companies that purchased the system, the companies would remove the RD-344 from the RM 2000 system and R & D Chemical would then remove, transport and store the RD-344 in drums at its facility in Mansfield, Ohio. According to R & D Chemical, RD-344 was a marketable product.

In March 1989, appellee, the Attorney General for the state of Ohio, filed a twenty-one count complaint against appellants and Noble Cunningham, an employee of R & D Chemical. In the complaint, appellee alleged, among other things, that the defendants stored, treated and disposed of hazardous waste in violation of the state's hazardous waste laws.

The case proceeded to a bench trial. The trial court made extensive findings of fact and conclusions of law and entered judgment in favor of appellee on all counts. The court assessed a fine of $50,000, finding each defendant to be jointly and severally liable for the fine imposed. The trial court also ordered defendants permanently enjoined from treating, storing, transporting or disposing of RD-344. The court further required that defendants submit a closure plan for the Mansfield facility, and that they provide financial assurance for its closure.

Appellants (R & D Chemical and Dr. John Cunningham) appealed to the Court of Appeals for Morrow County. The court of appeals affirmed the judgment of the trial court. Specifically, the court affirmed the findings of the trial court on the basis that appellants failed to properly file a trial transcript.

The cause is now before this court pursuant to the allowance of a discretionary appeal.

Bieser, Greer & Landis, David C. Greer and Konrad Kircher, Dayton, for appellants.

DOUGLAS, Justice.

This case is fraught with procedural infirmities. The court of appeals affirmed the judgment of the trial court, finding that appellants failed to properly file a trial transcript. Indeed, "where a transcript of any proceeding is necessary for disposition of any question on appeal, the appellant bears the burden of taking steps required to have the transcript prepared for inclusion in the record. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 15 O.O.3d 218, 400 N.E.2d 384. Any lack of diligence on the part of an appellant to secure a portion of the record necessary to his appeal should inure to appellant's disadvantage rather than to the disadvantage of appellee." Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 19, 520 N.E.2d 564, 565-566.

In addition to appellants' omission, we are also confronted with an omission on the part of appellee. Following the entry of judgment of the court of appeals, appellants properly perfected an appeal to this court. Appellants timely filed their notice of appeal, memorandum in support of jurisdiction and merit brief. Appellee filed a memorandum in response to appellants' memorandum in support of jurisdiction. Appellee, however, failed to file its merit brief within the time allowed by the Rules of Practice of this court. Appellee attempted to file its brief beyond the thirty-day period set forth in S.Ct.Prac.R. VI(2) and, as such, appellee's brief was properly rejected by the Clerk. Accordingly, we also denied appellee's request for leave to participate in oral argument. Hence, given appellee's omission in this court, we are tempted to borrow from App.R. 18(C) and find that the facts, issues and assertions properly set forth in appellants' brief, when accepted as correct, reasonably appear to...