COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61022 LYNDELL C. HENDRICKS, SR. : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LINDA WHITE : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : NOVEMBER 12, 1992 CHARACTER OF PROCEEDING : Civil appeal from Cleveland Municipal Court : Case No. 90-CVG-23660 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: DWIGHT E. DAVIS, ESQ. THOMAS A. SAMPLINER, ESQ. 428 Lincoln Building 501 Rockwell Avenue 1367 East Sixth Street Suite 402 Cleveland, Ohio 44114 Cleveland, Ohio 44114 - 2 - JOHN F. CORRIGAN, P.J., Defendant appeals from the order of the trial court which awarded plaintiff $400.00 for unpaid rental payments and further awarded defendant $265.00 for damages to the leased premises. Because no transcript has been supplied, and defendant challenges the manifest weight of the evidence supporting these awards, we presume the validity of the proceedings below and affirm. App. R. 9 provides in relevant part: "If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, he shall include in the record a transcript of all evidence relevant to such findings or conclusion." See, also, In re Adoption of Foster (1985), 22 Ohio App.3d 129, 131 (quoting the above rule); and Tyrrell v. Investment Assoc., Inc. (1984), 16 Ohio App.3d 47,49: "App. R. 9(B) now makes clear that a transcript of all evidence relevant to challenged findings or conclusions is necessary when the appellant contends: (1) they are contrary to the weight of the evidence, or (2) they are unsupported by the evidence." (Emphasis added). In this case, due to the absence of a transcript, defendant's challenge to the weight of the evidence cannot be sustained. Finally, while there is no official court reporter for civil cases in the Cleveland Municipal Court, under R. 12.01, the partieswould have been able to obtain a private court reporter, at their cost, who would then have been designated the official court reporter for that case. - 3 - Judgment affirmed. It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J. CONCURS. HARPER, J., DISSENTS. (SEE ATTACHED DISSENTING OPINION) JOHN F. CORRIGAN PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61022 : LYNDELL C. HENDRICKS, SR. : : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION LINDA WHITE : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 12, 1992 HARPER, J., DISSENTING: I dissent from the opinion of the majority which I consider to be unjust. I also disagree with the majority's simplistic approach to appellant's issues by ignoring the essential facts and record before us in an attempt to justify its decision. The majority relies on App.R. 9, but ignores the provisions of App.R. 9(C), which authorizes a review where there is no transcript of record by requiring the parties and the trial court to provide some record for review. In the instant case, this court has no basis for its decision and this cause should be - 2 - remanded to the trial court to comply with the provisions of App.R. 9(C). I will start with the facts of the case, which are as follows: Appellant, Linda White, was a tenant in a four suite apartment building located at 11728 Union Avenue owned by appellee, Lyndell Hendricks, Sr. Appellant lived in the apartment from October 1, 1986 until the latter part of 1990. Appellee filed a complaint against appellant for a forceful entry and detainer and also for delinquent rent. The court found for appellee on the forceful entry and detainer and ordered an eviction procedure. Appellant filed a counterclaim on the second action alleging among other things that appellee agreed that she perform certain custodial duties but failed to pay for her services. Appellee refused to make repairs to her leaking roof in spite of repeated requests. The ceiling leaks caused damage to her stereo equipment. The value of rent should have been reduced by $100 due to the deteriorated condition of the apartment. Appellant prayed for compensatory and punitive damages including a reasonable attorney's fee. The jury returned a verdict for appellee for $400, and for appellant on her counterclaim for $265. There was no transcript of hearing for appellate review. The trial court requested from the parties a statement of the proceedings according to their recollections. Both appellant and - 3 - appellee submitted their statements. The trial court prepared an App.R. 9(C) statement of the proceedings stating that it adopted the combined reports of the parties. Appellant filed a motion with the trial court in an attempt to correct the App.R. 9(C) statement prepared by the court. Appellant pointed out in her motion the trial court's failure to address the core issues that led to her challenge of the jury verdict, to wit: the court's instruction to the jury on general damages, punitive damages and attorney's fees. The court denied appellant's motion and reaffirmed its App.R. 9(C) statement. Appellant then filed a supplement to the trial court's App.R. 9(C) statement stating, among other things, that the trial court instructed the jury on general damages only. She alleged that no instruction was given on punitive damages, attorney's fees or other remedies that might be derived from the Landlord 1/ Tenant Act. (R.C. 5321.) The trial court rejected appellant's request to supplement the record stating that it did not have enough recollection of the matter. II. On appeal, appellant assigns three errors for review: "1. Whether the jury verdict(s) are against the manifest weight of the evidence. "2. Whether there is any competent, credible evidence to support the damages award to Appellant. 1/ These allegations were among the proposed statement of proceedings originally submitted by appellant to the court which were not included in the court's App.R. 9(C) statement. - 4 - "3. Whether in light of the findings concerning landlord's conduct, he was entitled to any award of rent." Since we cannot effectively address appellant's manifest weight error without a transcript of the hearing or an adequate record of substance, we turn to the trial court's App.R. 9(C) statement, which reads as follows: "This statement of proceedings has been compiled pursuant to Appellate Rule 9-C from A part of proposed submissions by plaintiff and defendant and court records. The court adopts the combined report as its own. This statement is based upon memory only. "1. The plaintiff testified he was the owner of the premises located at 11728 Union Avenue, Cleveland, Ohio, wherein Linda White became his tenant in October, 1986. "2. Hendricks testified Linda's rent was $200/month. He further testified the parties had an intimate relationship of only short duration. "3. Hearing held on September 20, 1990 restored right of possession to plaintiff pursuant to plaintiff's Forcible Entry and Detainer complaint based on non-payment of rent. "4. Defendant called by subpoena the City Housing Inspector's Office with records for the building since October, 1986. The Inspector, Erik Middlebrooks, testified and produced records admitted into evidence to show substantial housing, health and safety code violations for the premises going back to January of 1990. Citations were issued, yet the inspector testified many violations were still open due to lack of cooperation from the landlord. Among the violations were holes in the ceiling which resulted in leaks during rains. "5. Prior to the court giving the jury instruct- ions, Judge William Corrigan had a conference with both counsels present. At this conference the court went through his proposed jury instruction. The court proposed using a combination of the court's own instructions, plaintiff's instructions and defendant's instructions. The court read the proposed instructions to counsel and asked for comments. After several minor - 5 - modifications both parties agreed to the instructions. No objections were raised as to any part of the instructions. "6. After the court instructed the jury, the court asked counsel for both parties to approach the bench whereupon the court inquired as to whether either party had any additional instructions or modifications of same. There were several minor modifications which the court made. Once again no obejections [sic] were raised as to any part of the court's instructions." App.R. 9(C) states: "Statement of the Evidence or Proceedings When No Report was Made or When the Transcript is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to Rule 10, who may serve objections or propose amendments thereto within ten days after service. Thereupon, the statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act thereon prior to the time for transmission of the record pursuant to Rule 10, and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal." The burden of providing a transcript of proceedings or a statement pursuant to App.R. 9(C) for appellate review is on the appellant. Knapp v. Laboratories (1980), 61 Ohio St.2d 197. In the case sub judice appellant complied with App.R. 9(C). The trial court, in its adoption of the statement submitted, ignored the essential parts of appellant's statement which are necessary to the resolution of appellant's challenge on appeal. (The jury instruction on damages, compensatory and punitive, attorney fees, and other violations of R.C. 5321 on the measure of damages for a - 6 - possible violation of quiet enjoyment of the rented property due to appellee's conduct.) Appellant attempted by objection and supplementation of the record to have the trial court address those issues in its statement but was constantly denied the opportunity by the court. App.R. 9(C) requires the trial court to settle and approve the statements. State v. Polk (Mar. 7, 1991), Cuyahoga App. No. 57511, unreported. A failure of the trial court to settle and reconcile objections and amendments submitted renders the App.R. 9(C) statement insufficient to effectuate a fair review on appeal. 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 the 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." (Emphasis added.) The rule requires that the parties do the following: (1) appellant may prepare a statement of the evidence or proceedings; (2) appellee may serve objections or proposed amendments; and (3) the statement, any objections or proposed amendments shall be submitted to the trial court for settlement and approval. This court, in reversing an adopted App.R. 9(C) statement from the court below as unconforming, stated in Seals v. Hal Artz - 7 - Lincoln-Mercury, Inc. (Mar. 7, 1991), Cuyahoga App. No. 57953, unreported, as follows: "Since counsel are required and expected to comply with the rules, the trial judge can be held to no less a standard. The trial court has failed to 'settle and approve' the statement in accordance with App.R. 9. This court has previously held as follows: "'The terms "approval" and "conforms to the truth" as employed by Appellate Rules 9(C), (D), and (E), mean that the trial court must first determine the accuracy and truthfulness of a proposed statement of the evidence or proceedings or and [sic] statement and then approve it and sign it. This gives the trial judge the responsibility, duty, and authority to delete, add, or otherwise modify portions of a proposed statement so that it will conform to the truth and be accurate before he approves it.' "*** "'An appellate record should recite or summarize the underlying evidence, if the parties seek appellate review of factual issues. The court's findings may conceivably contain a sufficient summary of that evidence, but better practice calls for a separate document intended for that purpose. (Emphasis added.)' "Associated Estates Corp. v. Fellows (1983), 11 Ohio App.3d 112, 114." In the instant case, the trial court, in its denial of appellant's supplemental brief, which was a restatement of the issues ignored in her original 9(C) statement, states: "The proposed supplement to the record filed in this court on March 19, 1991 is not signed by the Court. The Court does not have enough recollection of this matter to attest to the truth of the statements in this proposed supplement." This court has consistently held that where the trial court cannot make an intelligent ruling because it lacks independent recollection of the facts, new trial becomes paramount. State v. - 8 - Polk, supra, see also State v. Griffin (May 9, 1991), Cuyahoga App. No. 57673, unreported; State v. Hendrix (June 13, 1991), Cuyahoga App. Nos. 58519, 58520, unreported; State v. Newell (Dec. 6, 1990), Cuyahoga App. Nos. 56801, 60128, unreported. Since the trial court did not make any effort to address appellant's objections by conducting a hearing, plus the court's admission that it does not have an independent recollection of the events, our ruling based on the statement as is would constitute a denial of a full and fair appeal to appellant. Therefore, justice dictates that we reverse and remand to the trial court judge to "settle and approve" in accordance with App.R. 9 (C) and (E) a prepared statement of the evidence of proceedings in compliance with the law or otherwise grant a new trial. .