Hartt v. MunobeHartt v. Munobe
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(No. 91-2025 -- Submitted March 9, 1993 -- Decided July 28, 1993.)
Appeal from the Court of Appeals for Franklin County, No. 90AP-572.
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 arosе 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 resрonses. 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 ovеr 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
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 аppeals 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, for appellant.
James W. Rickman, for appellees.
Moyer, C.J. This case presents several issues, of which the central is whеther 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
I
The relevant portions of
“(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 cаse 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 pеrform 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 ordеr. 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
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
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.
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 thе verdict forms, interrogatories and expressed intentions of the jury,” thereby fulfilling his role under
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.”
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 was not a judge. We therefore hоld that the record in this case indicates knowing consent to the oversight of the trial by a referee.
III
The court of appeals reversed the judgment of the trial court on the basis that the referee had failed to obtain consent for his oversight of the trial. The evidence supporting the court‘s conclusion was an eleven-page excerpt from the proceedings on the second day of trial. This excerpt is the only part of the trial of which defendants filed a transcript in the court of appeals.
An appellate court reviewing a lower court‘s judgment indulges a presumption of regularity of the proceedings below. See Rheinstrom v. Steiner (1904), 69 Ohio St. 452, 69 N.E. 745. A party asserting error in the trial court bears the burden to demonstrate error by reference to matters made part of the record in the court of appeals. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 15 O.O.3d 218, 400 N.E.2d 384;
IV
The court of appeals also held that
“If for any reason the judge before whom a jury trial has commenced is unable to proceed with the trial, another judge, designated by the administrative judge, *** may proceed with and finish the trial upon certifying in the record that he has familiarized himself with the record of the trial ***.”
Referees are not subject to every rule controlling judges. See In re Disqualification of Light (1988), 36 Ohio St.3d 604, 522 N.E.2d 458. (R.C. 2701.03, permitting parties to apply for disqualification of judges, does not apply to referees.)
On its face,
Where a referee presides over a jury trial and is not the finder of fact, the court must still review the referee‘s report or prоposed entry and the parties’ objections thereto. This independent review allows the court to discover any errors on the face of the report, and also allows a party to indicate any errors that occurred during trial. See discussion in Part I, supra. These provisions adequately safeguard the integrity of proceedings wherein a referee reрlaces a judge during trial. We hold, therefore, that the requirements of
Finally, the court of appeals held that it was error for the referee to deny the defendant corpоrations a continuance when they appeared for trial with counsel who was unfamiliar with the case, but not prejudicial in view of the referee‘s lack of power to preside over the trial. The decision whether to grant a continuance is within the sound discretion of the trial court. C.P.Sup.R. 7; State ex rel. Buck v. McCabe (1942), 140 Ohio St. 535, 24 O.O. 552, 45 N.E.2d 763, paragraph one of the syllabus. A pаrty has a right to a reasonable opportunity to be present at trial and a right to a continuance for that purpose. A party does not, however, have a right unreasonably to delay a trial. Id. A continuance based on a party‘s absence must be based on unavoidable, not voluntary, absence. Id. Based on the above authority, we hold that a judge‘s deniаl of a continuance because of counsel‘s unpreparedness is not an abuse of discretion if the unpreparedness was avoidable. Nothing in the record before us demonstrates that counsel‘s unpreparedness could not have been avoided. To the contrary, the record demonstrates a distinct lack of diligence on the part of defеndants throughout the litigation. Repeatedly, plaintiff had to seek court orders to compel discovery from defendants. The court even granted a default judgment, which it later vacated, in part because of defendants’ failure to obey a discovery order. Trial, originally scheduled for June 14, 1989, was continued until October 23 and again until December 18. It appears that defendants Munobe and Karp mistakenly believed they could, and intended to, represent their respective corporations themselves. The attorney who accompanied defendants to the second day of trial was unfamiliar with the case and stated he could represent the corporations only if given a continuance. Defendants’ mistake, howevеr, should not accrue to their benefit. Plaintiff had waited more than two and one-half years for trial since the filing of his original complaint. We cannot say, under the circumstances of this case, that as a matter of law the referee was required to grant a continuance.
For the foregoing reasons, the judgment of the court of appeals is reversed.
Judgment reversed.
A.W. Sweeney, Douglas, Wright, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.