716 N.E.2d 1193 | Ohio Ct. App. | 1998
On July 7, 1997, appellee, Stephen T. Loyer, filed a complaint claiming that appellant, Sally Turner, d.b.a. Turner Reporting Service, committed "malpractice" in transcribing a trial held in the Erie County Court of Common Pleas on August 31 and September 1, 1995. Specifically, Loyer alleged that Turner failed *35 to transcribe "a section of the trial that included orders" issued by the trial court judge. He claimed that his appeal of the 1995 case was "hindered by the apparent lack of a full record."
Appellant filed a motion to dismiss, pursuant to Civ.R. 12(B)(6), asserting that as a court reporter she was protected by judicial immunity and was therefore absolutely immune from suit for any alleged intentional or negligent omission in the transcription of trial proceedings.
On December 1, 1997, the trial court overruled Turner's motion to dismiss. Turner appeals that order1 and sets forth the following assignment of error:
"The trial court erred in denying defendant's motion to dismiss which was based on immunity."
Turner contends that the trial court erred in failing to grant her Civ.R. 12(B)(6) motion because she was acting in her official capacity in transcribing court proceedings and, therefore, enjoys judicial, that is, absolute immunity from suit.
We note at the outset that immunity is generally considered an affirmative defense under Civ.R. 8(C) and must be expressly pled or it is waived. See Spence v. Liberty Twp.Trustees (1996),
Here, the complaint asserts that Turner either negligently or intentionally omitted matters from a transcript recorded by appellant during judicial proceedings. Thus, the existence of the defense of judicial/absolute immunity is obvious from the face of the complaint and could be considered by the trial court. *36
A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. GeurnseyCty. Bd. of Commrs. (1992),
A member of the judiciary who possesses jurisdiction over a controversy has absolute immunity from civil liability for acts occurring during the performance of the judicial function.Kelly v. Whiting (1985),
As she did in the trial court, Turner relies on R.C.
The first case offered by appellant, Fahrig v. Greer
(May 1, 1980), Montgomery App. No. 6596, unreported, cites federal law as support for holding: "The principle of judicial immunity applies to acts of a judge and court reporters while acting in their official capacities." The second case, Richard v. Schaefer
(June 18, 1992), Cuyahoga App. No. 63069, unreported,
In Antoine v. Byers Anderson, Inc. (1993),
The Antoine court noted that the functions of a court reporter and a judge are significantly different. Id. at 435,
Our research fails to disclose any Ohio cases determined since the United States Supreme Court's decision in Antoine. Nevertheless, Turner urges, in her reply brief, that the Antoine
decision is federal law "relying on a federal statute.2" Turner further maintains that R.C.
We find the actual question before this court is whether, under Ohio law, a court reporter, in reporting and transcribing trial proceedings for the purpose of appeal, is engaging in a discretionary activity.
R.C.
"Upon the trial of a civil or criminal action in the court of common pleas, if either party to the action or his attorney requests the services of a shorthand reporter, the trial judge shall grant the request, or may order a full report of the testimony or other proceedings. In either case, the shorthand reporter shall take accurate shorthand notes of the oral testimony or other oral proceedings."
The first sentence of R.C.
The second sentence requires that the reporter take accurate notes. Appellant asks this court to distinguish between the word "accurate" in the Ohio statute and the word "verbatim" in the federal statute. Presumably, Turner believes that any difference in the meaning of these two terms renders the act of recording trial proceedings a discretionary function. We cannot agree. *38
"Accurate" is defined as "free from error" and "conforming exactly to the truth or to a standard." Merriam Webster Collegiate Dictionary (10th Ed. 1993) 8. This definition does not provide a court reporter with any leeway in decision making or acting in a judicial capacity during a legal proceeding.
Moreover, the gist of Loyer's complaint is that Turner failed to transcribe the complete trial court proceedings for the purposes of appeal. Transcription of proceedings by a court reporter is covered by a different statute, R.C.
"When shorthand notes have been taken in a case as provided in section
2301.20 of the Revised Code, if the court, or either party to the suit or his attorney, requests transcripts of any portion of such notes in longhand, the shorthand reporter reporting the case shall make full and accurate transcripts of the notes for the use of such court or party. Emphasis added.)"
This statute emphasizes the fact that a court reporter's duty to prepare trial transcripts is a ministerial function and not a discretionary function. Accordingly, based on the United States Supreme Court decision in Antoine, we find the trial court did not err in denying Turner's motion to dismiss for failure to state a claim upon which relief can be granted.
Accordingly, Turner's sole assignment of error is found not well-taken3. The judgment of the Erie County Court of Common Pleas is affirmed. Sally Turner, d.b.a. Turner Reporting Service, is ordered to pay the costs of this appeal.
Judgment affirmed. Peter M. Handwork, P.J. Melvin L. Resnick, J. Richard W. Knepper, J.
CONCUR.