{¶ 1} Aрpellant, Roman Pallone, appeals the judgment of the Tenth District Court of Appeals dismissing his petition for a writ of mandamus. We аffirm.
Background
{¶ 2} Pallone sued the Ohio Department of Natural Resources for damages in the Ohio Court of Claims. On January 30, 2013, after hearing the evidence, a magistrate recommended judgment in favor of the department.
{¶ 3} Pallone filed objections to the factual findings in the mаgistrate’s report and recommendation, but his objections did not include a transcript or affidavit as
{¶ 4} Pallone filed a notice of appeal to the Tenth District on May 10, 2013. On September 9, 2013, Pallone filed a proposed App.R. 9(C) statement of facts in the Court of Claims. Apр.R. 9(C) provides that if a transcript of lower court proceedings is unavailable, an appellant may prepare а statement of the evidence “from the best available means, including the appellant’s recollection.”
{¶ 5} The Court of Claims rejected the proposed App.R. 9(C) statement on two occasions. The first time, that court ruled that the statement was filed out of rule. But on December 9, 2013, the Tenth District Court of Appeals granted Pallone’s motion to remand the case with instructions to “sеttle the App.R. 9(C) statement on the merits.” The Court of Claims then issued an entry on January 10, 2014, in which it rejected the App.R. 9(C) statement and, based on Pallone’s failure to comply with Civ.R. 53(D)(3)(b)(iii), held that it was accepting the magistrate’s factual findings as the statement of the evidence.
{¶ 6} Pallone filed a second motion to remand, arguing that Judge McGrath’s January 10, 2014 entry was improper under App.R. 9. The court of appeals denied the motion, indicating that Pallone “may raise issues as to the trial court’s Statement in his assignments of error.” In the sаme journal entry, the appellate court denied Pallone’s request for an extension of the January 31, 2014 deadline for filing his merit brief.
{¶ 7} Pallone faded to file a brief on or before January 31, 2014, and the court of appeals dismissed his appeal of the judgment in favor of the department.
{¶ 8} Pallone then commenced this mandamus action against the court of claims to compеl the court to settle and approve his App.R. 9(C) statement and transmit it to the Tenth District as a supplemental record. The court of appeals dismissed the complaint, stating that “[b]y failing to file his brief in the appeal, [Pallone] has failed to exerсise a plain and adequate remedy at law that bars this original action.”
{¶ 9} Pallone timely appealed to this court, and the matter is fully briefed. Analysis
{¶ 10} Mandamus will not issue to compel a vain act. State ex rel. Julnes v. S. Euclid City Council,
{¶ 12} In its present form, App.R. 9(C)(2) makes this result plain.
In cases initially heard in the triаl court by a magistrate, a party may use [an App.R. 9(C) statement] in lieu of a transcript if the error assigned on appeal rеlates solely to a legal conclusion. If any part of the error assigned on appeal relates to a factuаl finding, the record on appeal shall include .a transcript or affidavit previously filed with the court as set forth in Civ.R. 53(D)(3)(b)(iii) * * *.
As Pallone correctly notes, subsection (2) was added to App.R. 9(C) on July 1, 2013, after he filed his proposed statement. 135 Ohio St.3d XCVII. Pallone suggests that the amendment should not apply retroactively to his case.
{¶ 13} However, the Staff Note to the July 1, 2013 amendment to App.R. 9(C) makes clear that thе 2013 amendments codified existing case law.
App.R. 9 is amended to clarify that a statement of the evidence or proceedings in lieu of an unavailable transcript (under App.R. 9(C)) * * * is available only in limited circumstances in cases originally heard by a magistrаte. One of the predicates for appealing from a factual finding in cases initially heard by a magistrate is that the trial judge must have had an adequate opportunity to conduct a full review of the factual finding. That full review is not possible unless the apрellant provided the trial court with an adequate description of the evidence presented to the magistrate — either through a transcript or, if a transcript is unavailable, an affidavit describing that evidence. * * * Case law already provides that аn appellate court will not review factual findings on appeal unless the appellant provided the trial court with that description of the evidence and that a statement under App.R. 9(C) or App.R. 9(D) does not overcome this problem. * * * But aрpellants nevertheless continue to attempt to usesuch statements in these circumstances, suggesting a need for more explicit guidance in the rule.
135 Ohio St.3d XCVIII. Thus, even before the adoption of App.R. 9(C)(2), failure to file a transcript or affidavit with the objections to a magistrate’s findings of fact constituted a waiver of appeal of those findings.
{¶ 14} In his briefs to this court, Pallone defends the timeliness of his App.R. 9(C) statement and criticizes what he considers are the trial court’s procedural errors. However, he offers no response to the substantive legal question raised by the court of appeals: whether, having failed to comply with Civ.R. 53(D)(3)(b)(iii), Pallone is even eligible tо submit an App.R. 9(C) statement.
Conclusion
{¶ 15} For the foregoing reasons, we affirm the judgment of the court of appeals.
Judgment affirmed.
Notes
. For purposes of App.R. 9(C), a transcript is “unavailable” if the appellant is indigent. State ex rel. Motley v. Capers,