Constr. Sys., Inc. v. Garlikov & Assoc., Inc.Constr. Sys., Inc. v. Garlikov & Assoc., Inc.
v.
Defendants-Appellants: Garlikov & Associates, Inc. et al.
Defendant-Appellee: NBBJ [East Limited Partnership]
D E C I S I O N
Rendered on August 19, 2010
McFadden, Winner, Savage & Segerman, James S. Savage, and Douglas J. Segerman, for plaintiffs-appellees.
Zeiger, Tigges & Little LLP, Marion H. Little, Jr., Kris Banvard, and Bradley T. Ferrell, for defendants-appellants.
Luper Neidenthal & Logan, and Luther L. Liggett, Jr., for defendant-appellee.
APPEAL from the Franklin County Court of Common Pleas.
FRENCH, J.
{¶2} Garlikov is a company engaged in the business of providing insurance services and products to high net-worth individuals and corporations. Since 1986, Garlikov has maintained its home office in the Huntington Center in Columbus, Ohio. After receiving notification in 2001 that a law firm had exercised an option to lease the space then occupied by Garlikov‘s offices on the 27th floor, Garlikov entered into a sublease with Huntington Bank for office space on the 33rd and 34th floors of the Huntington Center. The sublease contemplated that Garlikov would renovate and/or improve the portion of the leased premises it intended to occupy, and the sublease provided that Huntington would offer a limited cash allowance to offset the costs of improvement. Shortly after executing the sublease, Garlikov retained NBBJ as architect, owner‘s representative, and construction manager for the design and construction of its relocated office space (“the project“). CSI acted as the general trades contractor on the project, and Colors acted as the wall-covering contractor.
{¶3} As a result of problems and conflicts that arose during the course of the project, CSI and Colors filed a complaint for breach of contract against Garlikov and
Appellants’ First Assignment of Error: The Trial Court Erred In Striking and Otherwise Failing to Consider Garlikov‘s Objections to the Magistrate‘s Factual Findings.
Appellants’ Second Assignment of Error: The Trial Court Erred In (a) Adopting the Magistrate‘s Decision in Favor of [NBBJ] and (b) Granting Judgment For NBBJ As Both Are Contrary to Law and Otherwise Against the Manifest Weight of The Evidence.
Appellants’ Third Assignment of Error: The Trial Court Erred In (a) Adopting the Magistrate‘s Decision in Favor of [CSI and Colors] and (b) Granting Judgment For CSI And Colors As Both are Contrary to Law and Otherwise Against the Manifest Weight of The Evidence.
Appellants’ Fourth Assignment of Error: Alternatively, The Trial Court Erred In Granting Any Relief Against Garlikov & Associates, LLC.
Appellants’ Fifth Assignment of Error: Alternatively, The Trial Court Should Have Rejected The Magistrate‘s Decision In Its Entirety.
{¶5} Because it is dispositive, we begin our analysis with the first assignment of error, by which Garlikov argues that the trial court erred in striking Garlikov‘s objections to the magistrate‘s findings of fact. The crux of this assignment of error is the enforceability of a stipulation filed on January 19, 2006. Paragraph three of the stipulation states as follows:
[The parties] stipulate and agree that all findings of fact by the magistrate shall be final and shall not be subject to objection by the parties to the Court of Common Pleas; provided, however, that the parties retain and do not waive the right to appeal any of the magistrate‘s findings of fact to
the Tenth District Court of Appeals. In all other respects, the parties shall proceed in accordance with Civ.R. 53 with respect to the magistrate‘s decisions, which shall include the filing of objections to the magistrate‘s conclusions of law as required byCiv.R. 53 .
The stipulation also included the parties’ waiver of a jury trial in favor of a bench trial to one of two named magistrates.
{¶6} Based on the parties’ stipulation, the trial court struck Garlikov‘s timely objections to the magistrate‘s findings of fact and ordered Garlikov to refile objections only to the magistrate‘s conclusions of law. The trial court subsequently noted that Garlikov‘s refiled objections, despite a new caption and minor revisions, were essentially identical to the original objections. On November 9, 2009, the trial court struck Garlikov‘s refiled objections to the magistrate‘s findings of fact, overruled Garlikov‘s refiled objections to the magistrate‘s conclusions of law, and adopted the magistrate‘s decision in its entirety.
{¶7}
(c) Objections to magistrate‘s findings of fact. If the parties stipulate in writing that the magistrate‘s findings of fact shall be final, they may object only to errors of law in the magistrate‘s decision. Any objection to a finding of fact shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that fact or an affidavit of that evidence if a transcript is not available.
(d) Waiver of right to assign adoption by court as error on appeal. A party shall not assign as error on appeal the court‘s adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule.
{¶8} On July 1, 2006, prior to the commencement of trial in this case,
(iii) Objection to magistrate‘s factual finding; transcript or affidavit. An objection to a factual finding, whether or not specifically designated as a finding of fact under
Civ.R. 53(D)(3)(a)(ii) , shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available. With leave of court, alternative technology or manner of reviewing the relevant evidence may be considered. The objecting party shall file the transcript or affidavit with the court within thirty days after filing objections unless the court extends the time in writing for preparation of the transcript or other good cause. If a party files timely objections prior to the date on which a transcript is prepared, the party may seek leave of court to supplement the objections.(iv) Waiver of right to assign adoption by court as error on appeal. Except for a claim of plain error, a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii) , unless the party has objected to that finding or conclusion as required byCiv.R. 53(D)(3)(b) .
{¶9} As it argued in the trial court, Garlikov maintains that amended
{¶11} In Hollobaugh v. D&V Trucking, 7th Dist. No. 99 CA 303, 2001-Ohio-3265, the court similarly invalidated a stipulation by which the parties agreed that no objection would be made in the jury‘s presence with respect to evidence that was the subject of a failed motion in limine, despite the general rule that an objection at trial is necessary to preserve the admissibility question for purposes of appeal. The court stated, “[i]n essence, counsel * * * stipulate[d] that the normal procedure would not be followed in regard to the need for an objection. Under Ohio law, this type of stipulation is not
{¶12} Also instructive is Calmes v. Goodyear Tire & Rubber Co. (Dec. 20, 1989), 9th Dist. No. 13952, reversed, 61 Ohio St.3d 470, in which Goodyear argued to the Ninth District Court of Appeals that the trial court erred by entering judgment on a special verdict, despite the parties’ agreement to the use of a special verdict. Although Goodyear maintained that
{¶13} The essence of Garlikov‘s argument is that the parties’ stipulation conflicts with amended
{¶14} We further conclude, however, that the stipulation is also contrary to the clear import of former
{¶15} The Seventh District Court of Appeals recognized this principle in Visyak v. McGowan, 7th Dist. No. 99-JE-11, 2000-Ohio-2663, in which it held that an appellant was not entitled to appeal the trial court‘s adoption of a magistrate‘s findings and recommendation where the appellant, in reliance on an agreement between counsel to waive the filing of objections in the trial court, did not object to the magistrate‘s findings.
{¶16} The Eighth District Court of Appeals similarly acknowledged this principle in Cangemi v. Cangemi, 8th Dist. No. 84678, 2005-Ohio-772. The Eighth District distinguished the unorthodox procedure ordered by the trial court in that case, based on an agreement by the parties, from proceedings before a magistrate under
* * *
Civ.R. 53 contemplates that a magistrate‘s report will be filed with the clerk and served on the parties, that the parties will have an opportunity to object, and that the court will rule on those objections and either adopt, reject or modify the magistrate‘s order. While the parties can stipulate that the magistrate‘s findings of fact will be final, there is no provision allowing the parties to “waive” the trial court‘s obligation to review the magistrate‘s decision for errors of law and directly appeal any such errors to this court, as the parties attempted to do here. Quite the opposite, if a party fails to object, he or she may not appeal from the trial court‘s adoption of a finding of fact or conclusion of law.
The stipulation in that case went further than the stipulation here, in that it attempted to obviate not only the need for objections to the magistrate‘s findings of fact, but also to the magistrate‘s conclusions of law. Nevertheless, despite recognizing the stipulation provision in former
{¶17} Both versions of
{¶18} Having concluded that the parties’ stipulation was improper, the question resolves to that of the proper remedy. One possible remedy is to proceed, as the parties suggest, to review appellant‘s assignments of error. The difficulty of doing so, however, reveals itself when we consider the appropriate standard for that review.
{¶19}
{¶20} Here, however, the trial court exercised no discretion with respect to the facts of the case. Rather, the court stated that, because of the stipulation, “the Court is unable to make an independent de novo determination regarding the facts in this matter.” We cannot review a decision for an abuse of discretion if no discretion has been exercised.
{¶21} Appellees do not suggest that, in the absence of appellate review, we should enforce the first prong of paragraph three independently. In fact, the parties stipulated that the magistrate‘s findings of fact would not be subject to objection in the trial court ”provided, however, that the parties retain and do not waive the right to appeal any of the magistrate‘s findings of fact to the Tenth District Court of Appeals.” (Emphasis added.) Having concluded that appellate review is impossible under these circumstances, we further conclude that paragraph three of the stipulation as a whole is unenforceable. In the absence of an enforceable stipulation, the trial court had no legitimate basis for striking Garlikov‘s objections. Therefore, we sustain Garlikov‘s first assignment of error and conclude that the proper remedy is to remand this matter to the trial court to rule on Garlikov‘s properly filed objections to the magistrate‘s findings of fact and, if necessitated by those rulings, to reconsider Garlikov‘s objections to the magistrate‘s conclusions of law.
{¶22} Because Garlikov‘s remaining assignments of error depend on the magistrate‘s findings of fact, which the trial court must review on remand, those
Judgment reversed and cause remanded.
BRYANT and KLATT, JJ., concur.