64 Ohio St. 3d 243 | Ohio | 1992
Appellant raises five propositions of law on appeal, including that the court of appeals erred by granting a motion to dismiss that raised matters outside the pleading. Appellee attached to her motion to dismiss below an affidavit of the Clerk of the Cleveland Heights Municipal Court,
The validity of appellant’s complaint rests on three assertions: (1) that no court reporter was present at his trial in the municipal court, (2) that appellee refused to settle or approve his statement of evidence, and (3) that appellee had a clear duty to do so pursuant to App.R. 9(C). App.R. 9(C) requires a trial court to act on request for settlement and approval of a statement of evidence “prior to the time for transmission of the record [to the appellate court] pursuant to Rule 10.” However, the trial court’s duty to act arises only “[i]f no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable * * *.” App.R. 9(C) then requires the clerk of the trial court to include the statement in the record only “as settled and approved.”
It is clear that the absence of a report or unavailability of a transcript, not the presence or absence of a court reporter, is the condition precedent necessary to invoke App.R. 9(C). It is clear from paragraphs nine and twelve of the complaint that appellee acted on the statement by refusing to settle or approve it prior to the transmission date. Since the court did not settle or approve the statement, it is clear that the clerk had no duty to include the statement in the record on appeal. (Moreover, the clerk has not been joined as a respondent.)
R.C. 2731.03 states:
“The writ of mandamus may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion.”
We hold that appellee performed her duty under App.R. 9(C) to act on the statement of evidence by refusing to settle or approve it, which was clearly shown by the complaint, and that appellant’s action in mandamus is but a contrived effort to control appellee’s discretion in violation of R.C. 2731.03. See, also, State ex rel. Hull v. Gaughan (1988), 39 Ohio St.3d 145, 529 N.E.2d 1374, and State ex rel. Fant v. Trumbo (1986), 22 Ohio St.3d 207, 22 OBR 359, 489 N.E.2d 1316, in which we approved dismissal of writs of mandamus to
Judgment affirmed.