# Appeal of Smith v. Chester Township Board of Trustees > Ohio Supreme Court · November 7, 1979 · 60 Ohio St. 2d 13 URL: https://www.frixlaw.com/law-library/cases/6756658 ## Case - **Full name:** In re Appeal of Smith v. Chester Township Board of Trustees, (Two cases.) - **Court:** Ohio Supreme Court - **Decided:** November 7, 1979 - **Citations:** 60 Ohio St. 2d 13; 14 Ohio Op. 3d 162; 396 N.E.2d 743; 1979 Ohio LEXIS 490 - **Precedential status:** Published - **Opinion:** Dissent by Holmes - **Judges:** Brown, Celebrezze, Herbert, Holmes, Locher, Sweeney - **Cited by:** 27 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/6756658 ## How later opinions describe it (automated extraction) - recognizing that “case law in Ohio supports the view that the burden is on the administrative agency to produce the transcript for appeal” ## Opinion text Holmes, J., dissenting. I must respectfully dissent from the majority opinion for the following reasons. First, there was but one case appealed to the trial court, Le., No. 76-M-259. The matter specifically at issue here involved only one motion within that appeal — the motion filed on February 27, 1978, seeking an order holding the board of trustees in contempt for not filing the transcript of proceedings. Emanating from such motion, the court made a single ruling in a subsequent judgment entry, dated April 26, 1978, which stated in part: “It is, therefore, ordered,that appellee [trustees] will furnish the transcript as formerly ordered, within thirty (30) days from the date of this entry or show cause why they should not be held in contempt of Court, the proceedings herein being the appellee’s cost.” There followed the motion for an order of contempt and for counsel fees filed on June 2, 1978. The court, on June 27th, ruled on such motion and found the board of trustees in contempt, again ordered a complete transcript of proceedings, and awarded attorney fees in the amount of $150. Smith’s attorney was by such ruling to prepare “a judgment in conformity herewith.” The court thereafter executed two judgment entries, one ordering the filing of the complete transcript, and the other finding the board of trustees in contempt and ordering the board to pay $150 in attorney fees to Smith’s legal counsel. In effect, the trial court bifurcated its ruling into two judgment entries: one, containing the elements of an interlocutory order and, therefore, not an appealable order; and the other, a final appealable order. This, in my view, the trial court could not reasonably do in that Smith’s motion of February 27, 1978, involved the review by the trial court of the inseparable issues of whether the board of trustees must *19 prepay the cost of the transcript of proceedings, and whether the board was in contempt for not having done so. Regardless of the form of the judgment entries as executed by the trial court, the substance of the proceeding with regard to Smith’s motion was one involving the contempt claim, and the determination of that issue is appealable. Second, I must conclude that the statute controlling the prepayment of the costs of a transcript of proceedings in appeals from a determination of a board of trustees is R. C. 2506.01.1 base such conclusion upon the following reasoning: R. C. 2506.01 sets forth the procedural framework for appeals to a Court of Common Pleas from the decisions of an administrative agency. This statute provides, in pertinent part, that: “Every final order* * * of any* * *board* * * of any political subdivision of the state may be reviewed by the common pleas court* * *as provided in sections 2505.01 to 2505.45, inclusive, of the Revised Code, and as such procedure is modified by sections 2506.01 to 2506.04, inclusive, of the Revised Code.” This section provides that the provisions of R. C. Chapter 2505, the Appellate Procedure Act, are to be followed unless such procedures are specifically modified by any provisions in R. C. 2506.01 to 2506.04. R. C. 2505.08 refers to the “transcript of testimony,” and provides, in pertinent part, that: “The cost of the production of the transcript of testimony or of the bill of exceptions shall be paid initially by the party perfecting the appeal, reimbursement therefor to be made in the assessment of the cost by the court.” The only section within R. C. 2506.01 to 2506.04, inclusive, that refers to, and could conceivably modify, R. C. 2505.08, regarding the prepayment of transcripts of proceedings, is R. C. 2506.02, which, in its entirety, is as follows: “Within thirty days after filing the notice of appeal, the officer or body from which the appeal is taken shall, upon the filing of a precipe, prepare and Me in the court to which the appeal is taken, a complete transcript of all the original papers, testimony and evidence offered, heard and taken into consideration in issuing the order appealed from. The costs of *20 such transcript shall be taxed as a part of the costs of the appeal.” R. C. 2506.02 is silent as to which party is to initially advance the costs of the transcript of proceedings in this type of appeal. Therefore, it is my conclusion that this section does not modify the provision for the advance payment of transcripts of proceedings, as found within R. C. 2505.08, which requires the party perfecting the appeal to pay such costs, and be reimbursed if successful upon such appeal. To follow this procedure is seemingly in accord with that which is found within the Appellate Rules and the local rules of court. App. R. 9 (B) states that “[a]t the time of ordering, a party shall arrange for the payment to the reporter of the cost of the transcript.” Also, the taxing of the costs of such transcript as a part of the costs of the appeal is in accord with the general purpose of court costs which is to provide “allowances authorized by statute to reimburse the successful party for expenses incurred in prosecuting or defending an action or special proceeding.” Symons v. Eichelberger (1924), 110 Ohio St. 224, 238 . Celebrezze, C. J., and Locher, J., concur in the foregoing dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6756658. Public record. Not legal advice.