Normandy Place Associates v. Beyer

Krupansky, J.,

dissenting. In my view, the majority opinion undermines a cardinal rule of appellate procedure: “an appellate court will not consider any error which could have been brought to the trial court’s attention, and hence avoided or otherwise corrected.” Schade v. Carnegie Body Co. (1982), 70 Ohio St. 2d 207 , at page 210 [ 24 O.O.3d 316 ]. I must, therefore, respectfully dissent.

The majority’s reliance upon the use of the word “may” in Civ. R. 53(E)(2) is misplaced. The word “may” is necessarily employed in the rule to *107 allow a party the option of accepting the referee’s report. Suppose a party has no objections to the referee’s report. Then, of course, the rule does not mandate the filing of objections. If the rule read “a party must file objections,” then the rule would be reduced to an absurdity; this would make it mandatory for a party to file objections, even though the referee’s report was acceptable and no appeal was contemplated. The common sense reading of the rule dictates a party has the option to file objections depending upon whether the referee’s report is embraced or an appeal is anticipated. The rule states simply: “a party may * * * serve and file written objections to the referee’s report.” Similarly, a party “may” object to the admission of evidence at trial, “may” take exception to the court’s ruling on the objection and “may” assign the ruling as error on appeal. But, as every attorney familiar with the elementary principles of appellate procedure knows, one must object in order to claim error on appeal. The countless repetitions of this fundamental rule provide clear warning of the consequences entailed in the failure to object both in the civil as well as the criminal areas of the law. See, e.g., State v. Morris (1975), 42 Ohio St. 2d 307 [ 71 O.O.2d 294 ]; Stores Realty Co. v. Cleveland (1975), 41 Ohio St. 2d 41 [ 70 O.O.2d 123 ]; Moats v. Metropolitan Bank of Lima (1974), 40 Ohio St. 2d 47 [ 69 O.O.2d 323 ]; State v. Childs (1968), 14 Ohio St. 2d 56 [ 43 O.O.2d 119 ]; Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517 [ 26 O.O.2d 206 ]; State v. Glaros (1960), 170 Ohio St. 471 [ 11 O.O.2d 215 ]; In re Bowen (1943), 141 Ohio St. 602 [ 26 O.O. 173 ].

It is axiomatic that when objections are not made, errors are presumed to be waived. “Ordinarily, errors which arise during the course of a trial, which are not brought to the attention of the trial court by objection or otherwise, are waived and may not be raised upon appeal.” Stores Realty Co., supra, at page 43. This rule, settled beyond question, is succinctly stated in paragraph one of the syllabus in State v. Morris, supra:

“An appellate court will not consider any error which counsel for a party complaining of the trial court’s judgment could have called but did not call to the trial court’s attention at a time when such error could have been avoided or corrected by the trial court. (Paragraph three of the syllabus in State v. Childs, 14 Ohio St. 2d 56 [ 43 O.O.2d 119 ], approved and followed.)”

In addition, the majority’s holding defeats the purpose of the use of referees. According to the 1970 Staff Note to Civ. R. 53, the rule “contemplates that a referee shall aid the court in the expedition of the court’s business.” Thus, the reference system was instituted to facilitate the prompt and efficient resolution of disputes and to alleviate some of the tremendous overload on trial courts. The majority accomplishes the opposite result by placing the responsibility upon the trial court to scrutinize the referee’s report, search for errors and anticipate all possible grounds for objection.

The trial judge is now required to conduct an in-depth study of every referee’s report, whether or not the parties intend to appeal or otherwise dispute the referee’s findings. In my view, it is senseless to force the trial court to labor over these reports when the parties have indicated, by not ob *108 jecting, that they have no intention of appealing. The majority shifts the burden from the referee to an already greatly overburdened trial court, and the trial court is placed in the improper position of assuming the responsibilities of the attorneys in an adversary system.

As a result of the majority’s ruling, the parties are permitted to neglect calling errors to the attention of the trial court at a time when such errors could have been avoided or corrected by the trial court. The trial court is thereby circumvented, and the court of appeals, supplanting the function of the trial court, is required to rule on objections which should have been raised by the parties at the trial court level.

For the above reasons, I would reverse the judgment of the court of appeals, insofar as it held the filing of objections to a referee’s report is not a prerequisite to appellate review of a finding or recommendation made by a referee.

Locher, J., concurs in the foregoing dissenting opinion.