72 Ohio St. 3d 202 | Ohio | 1995
Lead Opinion
This case is fraught with procedural infirmities. The court of appeals affirmed the judgment of the trial court, finding that appellants failed to
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 sustain a reversal of the judgment of the court of appeals.
However, rather than attempt to assess which party is more at fault or which party has committed the more egregious omission, we believe, given the important issues involved in this case and the fact that a trial transcript is indeed available,
For the foregoing reasons, the judgment of the court of appeals is reversed for the limited reason and on the limited basis that this particular case, because of the importance of the issues involved and notwithstanding its procedural deficiencies, should be decided on its merits. Accordingly, the cause is remanded to that
Judgment reversed and cause remanded.
. On May 3, 1994, a transcript of trial was filed in this court as part of this appeal.
Concurrence Opinion
concurring. I concur in the judgment of the majority to reverse and remand the cause to the court of appeals to consider the appeal with the benefit of the trial transcript. As the dissenting appellate judge noted, the visiting trial judge’s opinion referred to the trial transcript. Thus, the appellants had seen to it that the trial transcript was timely prepared and submitted to the trial court. It is this fact that persuades me to remand the cause, not the great or small importance of the issues presented by the particular case.
The failure to ensure that the transcript was returned to the court file is the type of oversight permitted to be remedied by courts in the interest of determining cases on the merits. Had the record not shown that the trial transcript was available for review by the trial court, I would have voted to affirm the judgment of the court of appeals. See State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500.
