COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 63799 VIRGIL D. TENT DBA TENT CONSTRUCT- : TION COMPANY, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION METRO BUILDERS, INC., ET AL., : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION : MAY 9, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Cleveland Municipal Court : Case No. 90-CVF-32607 JUDGMENT : VACATED AND REMANDED FOR : NEW TRIAL. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Michael Troy Watson WATSON & WATSON 1367 East Sixth Street 400 Lincoln Building Cleveland, Ohio 44114 For defendants-appellants: Charles Gruenspan CHARLES GRUENSPAN COMPANY, LPA Three Commerce Park Square Suite 900 23200 Chagrin Boulevard Cleveland, Ohio 44122-5482 -2- NAHRA, J.: Defendants-appellants, Metro Builders, Inc. and Irvin Epstein appeal from the judgment rendered against them by the Cleveland Municipal Court in a breach of contract action. Neither plaintiff nor defendant caused a transcript to be taken of the trial. On September 1, 1992, this court remanded the case to the trial court to settle and approve an App. R. 9(C) statement of the evidence. The trial judge, Judge Connally, rejected both parties' proposed statements, and entered a two and one-half page statement of the evidence. This court remanded the case to the trial court again, because the App. R. 9(C) statement did not state the underlying facts and was not in compliance with App. R. 9. Tent v. Metro Builders, Inc. (April 7, 1994), Cuyahoga App. No. 63799, unreported. Due to the inadequate record, this court was unable to rule on four of appellants' six assignments of error. On remand, Judge Connally recused herself at appellants' request. Judge Larry Jones was assigned as trial judge. On August 15, 1995, Judge Jones filed a one and one-half page statement of the evidence. Appellants objected to the statement as inadequate, and moved for a new trial. It is unknown whether this motion was ruled upon, because no docket was submitted to this court. The App. R. 9(C) statement prepared by Judge Jones does not summarize the underlying facts and does not meet the requirements of App. R. 9. This court does not have the facts necessary to -3- address appellants' assignments of error. This case must once again be remanded to the trial court. It would be futile, however, to instruct the trial court to once again prepare an App. R. 9(C) statement. An appellant is entitled to a new trial when: (1) a transcript is unavailable through no fault of appellant, and (2) the record can not be settled pursuant to App. R. 9(C) or (D) after a good faith effort. State v. Jones (1994), 71 Ohio St.3d 293, Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, State v. Polk (March 7, 1991), Cuyahoga App. No. 57511, unreported. In this case, neither party requested a transcript be taken, so it was not appellant's fault the transcript was unavailable. See Associated Estates Corp. v. Fellows (1983), 11 Ohio App.3d 112 (trial court must prepare App. R. 9(C) statement, although parties failed to request a transcript be taken). Appellants made a good faith effort to obtain an App. R. 9(C) record. We therefore vacate the judgment of the Cleveland Municipal Court entered May 1, 1992, and order a new trial. The decision of the trial court is vacated, and this cause is remanded for a new trial. -4- This cause is vacated and is remanded for a new trial. Costs to be divided between plaintiff-appellee and defendants- appellants. It is ordered that a special mandate be sent to said 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. SWEENEY, JAMES D., P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA 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 .