[Cite as Lakota v. Lakota,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

MONICA LAKOTA C.A. No. 10CA0122-M

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE ANTHONY LAKOTA COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellee CASE No. 06DR0617

DECISION AND JOURNAL ENTRY

Dated: June 11, 2012

BELFANCE, Judge.

{¶1} Appellant, Monica Lakota, appeals an order of the Medina County Court of

Common Pleas, Domestic Relations Division. This Court reverses.

I.

{¶2} Anthony and Monica Lakota each moved to modify Mr. Lakota’s child support

obligation. A magistrate issued a decision concluding that both motions should be denied

because, despite some changes in the parties’ financial positions, a deviation from the child

support guidelines to $0 was warranted in light of their shared parenting plan. The trial court

entered judgment the same day. Ms. Lakota filed timely objections to the magistrate’s decision

and moved for leave to supplement her objections upon review of the transcript of proceedings

before the magistrate. Eight days later, the trial court summarily “denied” her objections,

concluding that because Ms. Lakota had not filed a praecipe for preparation of the transcript or

paid the deposit against costs for its preparation, it was with the court’s prerogative to 2

“presume[] that the Magistrate conducted the proceedings with regularity and adopt[] her

findings of fact.”

{¶3} Ms. Lakota moved the trial court to reconsider its decision. She supported her

motion with the affidavit of her attorney, which set forth the efforts that she had made toward

securing a transcript after the official court reporter told her – before the objections were filed –

that she could not prepare it. According to counsel’s affidavit, the court reporter told her that she

would have to obtain a CD of the hearing from the bailiff, who was on vacation at the time. In

addition, the court reporter informed counsel that it would normally take 3 to 4 days for the

bailiff to burn the CD. The trial court denied Ms. Lakota’s motion for reconsideration,

concluding that it had properly applied its own local rule and that, regardless, there was no way

that Ms. Lakota could then obtain the transcript within the time required by Civ.R.

53(D)(3)(b)(iii). Ms. Lakota filed a timely notice of appeal from the trial court’s order that

“denied” her objections and from the order denying her motion for reconsideration.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING THE APPELLANT’S PRELIMINARY OBJECTIONS, DESPITE THE APPELLANT’S EFFORTS TO SECURE THE TRANSCRIPT OF PROCEEDINGS.

{¶4} In her first assignment of error, Ms. Lakota argues that the trial court abused its

discretion by applying Loc.R. 1.07 of the Medina County Court of Common Pleas, Domestic

Relations Division, to “deny” her objections despite her efforts toward compliance. Because the

trial court neither afforded Ms. Lakota a meaningful opportunity to object to the magistrate’s

decision and preserve issues for appeal nor conducted the independent review required by Civ.R.

53(D)(4), we agree. 3

As an initial matter, this Court must emphasize that the only order that is before us in this appeal

is the trial court’s October 20, 2010, order that overruled Ms. Lakota’s objections because the

Ohio Rules of Civil Procedure make no provision for motions to reconsider after final judgment.

Pitts v. Ohio Dept. of Transp.,

(1981), paragraph one of the syllabus. Such

motions, and all orders that result from them, are nullities.

.

The Framework of Civil Rule 53

{¶5} Civ.R. 53 is the means by which a litigant may challenge a magistrate’s factual or

legal determinations. “Civ.R. 53(D) places upon the reviewing court the ultimate authority and

responsibility over an appointed magistrate’s findings and rulings.” Ohio Environmental

Protection Agency v. Lowry, 10th Dist. No. 10AP-1184,

, ¶ 11. The Rule makes

clear that, upon the filing of timely objections, the trial court must conduct an independent

review of any issue of fact or law and reach its own conclusions independent of the magistrate’s

determinations. Civ. R. 53(D)(4)(d).

{¶6} In order to conduct an independent review of the magistrate’s factual

determinations, the trial court must have a record of the proceedings held before the magistrate.

The responsibility for providing the transcript of the proceedings or an appropriate substitute

falls upon the party objecting to a magistrate’s factual determinations. Pursuant to Civ.R.

53(D)(3)(b)(iii), the objecting party must ensure that a complete record is before the trial court

for review:

Objection to magistrate’s factual finding; transcript or affidavit. An objection to a factual finding, whether or not specifically designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available. With leave of court, alternative technology or manner of reviewing the relevant evidence may be considered. The objecting party shall file the transcript or affidavit with the court within thirty days after filing objections unless the court extends the time in writing for preparation of the 4

transcript or other good cause. If a party files timely objections prior to the date on which a transcript is prepared, the party may seek leave of court to supplement the objections.

The Rule thus provides three ways in which a party may support objections to a magistrate’s

factual findings: by transcript; by affidavit, if a transcript is not available; or, with the court’s

permission, by means of “alternative technology or manner of reviewing the relevant

evidence[.]” Ms. Lakota planned to support her objections with a transcript of proceedings so,

for purposes of this opinion, we refer to a transcript throughout.

{¶7} When a party objects but does not provide the trial court with the transcripts

necessary to review the objections, there are serious consequences for appellate review. In that

situation, this Court’s review is “limited to determining whether the trial court abused its

discretion in adopting, rejecting, or modifying the magistrate’s decision[.]” Furlong v. Davis,

9th Dist. No. 24703,

, ¶ 30. Without a transcript, “[an] appellant cannot

demonstrate * * * error [with respect to factual findings], and thus, we must presume the

regularity of the proceedings and that the facts were correctly interpreted.” Yancy v. Haehn, 11th

Dist. No. 99-G-2210,

, *3 (Mar. 3, 2000), citing Rose Chevrolet, Inc. v. Adams,

(1988). We have emphasized that the duty to provide the transcript in

support of objections and the corresponding consequences if the transcript is not provided rest

squarely on the objecting party. See Weitzel v. Way, 9th Dist. No. 21539,

, ¶ 18-

19. Because these consequences are serious, a trial court should be cautious in taking measures

that may ultimately cut off a party’s ability to provide transcripts in support of objections so as

to ensure that the opportunity to object and preserve error for appeal is real and meaningful.

“Ohio appellate courts repeatedly have recognized a trial court errs in ruling on a party’s

objections to a magistrate’s factual findings without allotting the party the requisite 30 days to 5

obtain the necessary transcript.” Lowry,

, at ¶ 14-15 (trial court erred by

overruling objections without considering a transcript because it concluded that the objecting

party did not provide notice to the court that the transcript had been timely filed.).

Notice of Forfeiture as a Sanction

{¶8} “[T]he main purpose for the procedures set forth in Civ.R. 53 is to afford litigants

with a meaningful opportunity to file objections to a magistrate’s decision.” Skydive Columbus

Ohio, L.L.C. v. Litter, 10th Dist. No. 09AP-563,

, ¶ 6. Failure to do so is

prejudicial error. Ulrich v. Mercedes-Benz USA, L.L.C., 9th Dist. No. 23550,

.

{¶9} Under Civ.R. 53(D)(3)(b)(iv), a party forfeits all but plain error with respect to the

appeal of any finding of fact or legal conclusion to which no objection is made in the trial court.

The rule further requires that every magistrate’s decision must “indicate conspicuously” the

possibility of forfeiture. Civ.R. 53(D)(3)(a)(iii). In light of the consequences of a failure to

timely object to a magistrate’s decision, this Court has concluded that when the “conspicuous

warning” about forfeiture required by Civ.R. 53(D)(3)(a)(iii) is omitted from a magistrate’s

decision, a litigant may not have been “provided with a meaningful opportunity to file objections

and preserve issues for appeal.” Williams v. Ormsby, 9th Dist. No. 09CA0080-M, 2010-Ohio-

3666, ¶ 12. See also In re A.W.C., 4th Dist. No. 09CA31,

, ¶ 18-19. Similarly,

the failure to provide conspicuous notice of forfeiture as a sanction for the failure to comply with

local rules concerning the timing for filing praecipes or depositing costs can undermine a

litigant’s meaningful opportunity to pursue objections and preserve issues for appeal.

{¶10} The Local Rules of the Medina County Court of Common Pleas, Domestic

Relations Division, contain specific requirements relative to obtaining a transcript of the 6

proceedings and paying the court reporter for the transcript as well as the possibility of forfeiture

of a litigant’s objections for failing to comply. In this case, pursuant to the court’s local rules,

the trial court summarily overruled Ms. Lakota’s objections as a sanction because she did not file

a praecipe for preparation of the transcript of proceedings and did not pay the deposit against

costs to the court reporter. Loc.R. 1.07 provides:

A. If a transcript is required, a praecipe to the Court Reporter requesting a transcript of the proceedings must be delivered to and acknowledged by the Court Reporter at the time of the filing of the Objection * * *. Failure to timely file the praecipe may result in the denial or dismissal of an Objection * * *.

B. A deposit of costs to secure the transcript must be paid to the Court Reporter within 7 days of the filing of the Objection * * *. If the deposit for the costs of a transcript is not made within 14 days of the filing of the Objection * * *, the Objection * * * may be denied or dismissed. Irrespective of whether a transcript is ordered for the purpose of an Appeal, Objection, Motion to Set Aside or other reason, the Court Reporter shall not commence the preparation of the transcript until the deposit has been made.

(Emphasis added.) In this respect, it is significant to note that Civ.R. 53 does not require notice

to the trial court regarding preparation of the transcript. “Had notification been a requirement,

the amended rule easily could have included a provision to that effect but did not. Although a

party may act prudently in notifying a trial court that the transcript was requested, the rule does

not require notification.” Lowry,

, at ¶ 17.

{¶11} We have emphasized the significance of notice in another context because “a

basic tenet of Ohio jurisprudence is that cases should be decided on their merits.” Esser v.

Murphy, 9th Dist. No. 25945,

. In Esser, this Court concluded that although

a trial court warned the parties that dismissal with prejudice could result from failure to comply

with a pretrial order, that order “contained standard language of a boilerplate nature that

dismissal for noncompliance with the trial court’s order was a possibility, [and] there was no

notice of the trial court’s intention to dismiss due to noncompliance as contemplated by Civ. R. 7

41(B)(1).” (Emphasis in original.)

. See generally Sazima v. Chalko,

(1999), quoting Ohio Furniture Co. v. Mindala,

(1986) (stressing the important function of notice in giving “‘one last chance’” to comply.).

{¶12} Consequently, although we would not go so far as to say that Loc.R. 1.07 is

invalid on its face, we are persuaded that, in light of the potential that a party may be deprived of

the opportunity to object and to preserve error for appeal in a meaningful way, the trial court

should give notice of its potential sanction in a manner that is at least consistent with the notice

required under Civ.R. 53(D)(3)(a)(iii). Ruling on objections as a sanction during the thirty-day

period for filing a transcript may deprive parties of the meaningful opportunity to file objections

and preserve error for appeal, and consistent with the interests at stake, a trial court that does so

should act with caution after notice.

{¶13} The notice afforded by Loc.R. 1.07 itself is insufficient in this regard. The Rule

informs parties that failure to act “may” lead to “denial or dismissal” of objections. With respect

to failure to make the deposit against costs, the Rule permits the trial court to act if the deposit

has not been made within fourteen days of filing the objections. In this case, the trial court ruled

only eight days after the objections were filed. To the extent that the trial court based its ruling

on Ms. Lakota’s failure to pay the deposit, therefore, it erred in the application of its own rule.

With respect to the praecipe, the local rule presumably allows the trial court to dismiss or deny

the objections as a sanction at any time after the objections are filed. While the trial court may

implement the sanction provisions of Loc.R. 1.07, it should at least provide the parties with some

notice specific to the case at hand and a reasonable opportunity to cure the defect. 8

Independent Review

{¶14} Assuming for purposes of argument that the trial court had provided sufficient

notice to Ms. Lakota that it intended to rule on her objections, it nonetheless erred in doing so in

a summary fashion, without conducting an independent review of the magistrate’s application of

the law to the facts. Civ.R. 53(D)(4)(d) describes the responsibilities of a trial court once

objections to a magistrate’s decision have been filed:

Action on objections. If one or more objections to a magistrate’s decision are timely filed, the court shall rule on those objections. In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law. Before so ruling, the court may hear additional evidence but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the magistrate.

The independent review that is required of the trial court has two components: (1) whether, with

respect to the objected matters, the magistrate properly determined the factual issues before it,

and (2) whether the magistrate appropriately applied the law to those factual determinations.

Even if the evidence from the proceedings before a magistrate is not before the trial court or is

not contested, the trial court must conduct an independent review of the magistrate’s application

of the law to the facts to the extent that it is the subject of the objections. See Civ.R. 53(D)(4)(b).

In that situation, a trial court accepts the magistrate’s findings of fact, but “has the authority to

determine whether the magistrate’s findings of fact are sufficient to support the conclusions of

law made, and to reach a different legal conclusion as long as that conclusion is supported by the

magistrate’s findings of fact.” Martin v. Ohio Dept. of Rehab. and Corr., 10th Dist. No. 07AP-

1006,

, citing Wade v. Wade,

(11th Dist. 1996).

Civ.R. 53 contemplates that a trial court may, within its discretion, conduct a review that exceeds

that specifically required. See e.g. Civ.R. 53(D)(4)(b) (“Whether or not objections are timely 9

filed, a court may adopt or reject a magistrate’s decision in whole or in part, with or without

modification.”). See also Weitzel,

. When no timely objections are

filed, a trial court must still determine whether “there is an error of law or other defect evident on

the face of the magistrate’s decision.” Civ.R. 53(D)(4)(c).

{¶15} In other words, Civ.R. 53 does not authorize a trial court to summarily overrule

objections as a sanction without conducting the independent review of the magistrate’s decision

that is warranted under the circumstances. In this case, Ms. Lakota’s preliminary objections

challenged both the magistrate’s factual findings and the application of the law to those facts.

The trial court, however, in what may be a standardized journal entry, overruled her objections

without conducting an “independent review as to the objected matters to ascertain that the

magistrate * * * appropriately applied the law.” Civ.R. 53(D)(4)(d).

{¶16} At first glance, it may appear that because the trial court entered judgment during

the fourteen-day period for filing objections, this Court can presume that the trial court

conducted an independent review sufficient to meet the requirements of Civ.R. 53(D)(4)(d).

However, that proposition is not supported by the differences in the wording between Civ.R.

53(D)(4)(c) and Civ.R. 53(D)(4)(d) or the Staff Notes accompanying the rule. In the absence of

objections, Civ.R. 53(D)(4)(c) only requires that the trial court determine whether “there is an

error of law or other defect evident on the face of the magistrate’s decision.” (Emphasis added.)

However, when objections are filed, Civ.R. 53(D)(4)(d) requires that the trial court conduct an

“independent review as to the objected matters to ascertain that the magistrate * * *

appropriately applied the law.” The wording is significantly and substantively different. The

Staff Notes give credence to the notion that the difference is intentional and significant:

Sentence two of Civ.R. 53(D)(4)(d) requires that, if timely objection is made to a magistrate’s decision, the court give greater scrutiny than if no objections are 10

made. The “independent review as to the objected matters” standard that applies if timely objection is made should be distinguished from the lesser scrutiny permitted if no objections to a magistrate’s decision are timely filed * * * .

2006 Staff Note, Civ.R. 53. In addition, Civ.R. 53(D)(4)(e)(i), which authorizes a trial court to

enter judgment during the fourteen-day period for filing objections, implicitly differentiates

between the scope of the trial court’s initial review of the magistrate’s decision on its face and its

later review of objections. In that situation, although a trial court may have determined that there

is no “error of law or other defect evident on the face of the magistrate’s decision[,]” the result is

not a forgone conclusion: the trial court may vacate or modify its earlier judgment in light of the

objections.

{¶17} Thus, we cannot say that just because the trial court adopted the magistrate’s

decision and entered judgment prior to the filing of objections, that the trial court necessarily

conducted an independent review of the magistrate’s decision sufficient to meet the requirements

of Civ.R. 53(D)(4)(d).

{¶18} Accordingly, we agree with Ms. Lakota that the trial court erred by summarily

overruling her objections without affording her a meaningful opportunity to object to the

magistrate’s decision and preserve issues for appeal and without conducting the independent

review required by Civ.R. 53. Ms. Lakota’s first assignment of error is sustained.

III.

{¶19} Ms. Lakota’s first assignment of error is sustained. Ms. Lakota’s remaining

assignments of error, which challenge the trial court’s judgment with reference to the transcript

of proceedings, are premature. The judgment of the Medina County Court of Common Pleas is

reversed, and this matter is remanded to the trial court so that Ms. Lakota may have the

opportunity to proceed from the point that her objections were timely filed. 11

Judgment reversed and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

EVE V. BELFANCE FOR THE COURT

DICKINSON, J. CONCURS.

CARR, P. J. CONCURS IN JUDGMENT ONLY.

APPEARANCES:

JENNIFER L. MALENSEK, Attorney at Law, for Appellant.

ANTHONY LAKOTA, pro se, Appellee.