# Taylor v. Microdot, Inc.

> Ohio Court of Appeals · April 27, 1992 · 79 Ohio App. 3d 485

URL: https://www.frixlaw.com/law-library/cases/3734422

## Case

- **Full name:** TAYLOR, Appellant, v. MICRODOT, INC. Et Al., Appellees
- **Court:** Ohio Court of Appeals
- **Decided:** April 27, 1992
- **Citations:** 79 Ohio App. 3d 485; 607 N.E.2d 855; 1992 Ohio App. LEXIS 2024
- **Precedential status:** Published
- **Opinion:** Concurrence by Krupansky
- **Judges:** Spellacy, Matia, Krupansky
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3734422

## Opinion text

Krupansky, Judge,
concurring.
I concur in the judgment of the majority but write separately to disavow the practice of supplementing the record sanctioned by the majority in connection with appellant’s second and third assignments of error.
*493
As noted by the majority, the original record transmitted to this court did not contain trial court journal entries (1) granting appellees’ leave to file their motions for summary judgment or (2) ruling upon appellant’s motion to strike those summary judgment motions. Appellees acknowledged that such entries had never been journalized by the trial court, but maintained in their App.R. 9(E) motion to supplement the record that the trial court orally granted leave to file motions for summary judgment.
App.R. 9(E) does not authorize parties to retroactively revise the record after an appeal to include journal entries which never appeared in the trial court record or to add materials which are otherwise adequately reflected in the original record as in the case
sub judice.
App.R. 9(E) provides as follows:
“(E) Correction or modification of the record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties, by stipulation, or the trial court, either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals.”
Trial courts are deemed to grant leave pursuant to Civ.R. 56(B) to file motions for summary judgment after the case has been set for trial by ruling upon the merits of such summary judgment motions.
Indermill v. United Savings
(1982), 5 Ohio App.3d 243 , 5 OBR 530, 451 N.E.2d 538 .
4
It is likewise well settled that trial courts are presumed to overrule outstanding motions, such as appellant’s motion to strike the summary judgment motions in the case
sub judice,
when the record contains no express ruling to the contrary.
Newman v. Al Castrucci Ford Sales, Inc.
(1988), 54 Ohio App.3d 166, 169 , 561 N.E.2d 1001, 1004 (citing
Solon v. Solon Baptist Temple, Inc.
[1982], 8 Ohio App.3d 347 , 8 OBR 458, 457 N.E.2d 858 , certiorari denied [1983], 464 U.S.
*494
847, 104 S.Ct. 152 , 78 L.Ed.2d 141 ). Accord
Kane v. Ford Motor Co.
(1984), 17 Ohio App.3d 111, 112 , 17 OBR 173, 174, 477 N.E.2d 662, 664 .
Parties should not be permitted to shoehorn additional materials into the record under the guise of App.R. 9(E) long after any independent recollection of the underlying events has faded. Permitting such a practice to develop serves to undermine the integrity of the record and creates the potential for serious abuse.
4
.
State v. Licsak
(1974), 41 Ohio App.2d 165 , 70 O.O.2d 325 , 324 N.E.2d 589 , cited by the majority has been limited to the peculiar facts of the case. The
Licsak
court reversed the trial court order granting summary judgment based upon lack of jurisdiction, improper venue and on the merits since the trial court considered an improper affidavit and precluded the opponent from introducing opposing materials. None of these reasons applies where the trial court rules upon such motions after both parties fully present their arguments on the merits as in the case
sub judice. Indermill v. United Savings
(1982), 5 Ohio App.3d 243, 244 , 5 OBR 530, 531, 451 N.E.2d 538, 539-540 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3734422. Public record. Not legal advice.