[Cite as Tyra v. Tyra, 2014-Ohio-5732.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



NUGENT TYRA,                              :            APPEAL NO. C-140211
                                                       TRIAL NO. DR-1101775
        Plaintiff-Appellee,               :
                                                            O P I N I O N.
  vs.                                     :

JULIE TYRA,                               :

     Defendant-Appellant.                 :




Civil Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
                   Division

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 26, 2014



The Farrish Law Firm and Kathy C. King, for Plaintiff-Appellee,

Rollman & Handorf, LLC, and Jeffrey M. Rollman, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
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D E W INE , Judge.

        {¶1}   In three assignments of error, defendant-appellant Julie Tyra

(hereafter, “Mrs. Tyra”) appeals the trial court’s decree of divorce entered in this

case. In the proceeding below, a trial was conducted wherein affidavits completely

replaced direct testimony. We conclude that the procedures employed seriously

affected the basic fairness and the legitimacy of the judicial process, and by so doing

amounted to plain error. As a result, we reverse the judgment of the trial court.

                           Protracted Litigation Concludes
                              in Limited Property Trial

        {¶2}   Mrs. Tyra and Nugent Tyra (hereafter, “Mr. Tyra”) were married on

November 30, 2002. The couple had three children, who have lived primarily with

Mrs. Tyra since the couple separated in 2011. By the time the parties reached the

final pretrial hearing on February 12, 2013, only issues relating to the property

division remained pending. Also, by the time of the final pretrial hearing, Mrs. Tyra

was proceeding pro se.

        {¶3}   At the pretrial hearing, the magistrate informed the parties that each

side would have 90 minutes to present evidence. At that point, counsel for Mr. Tyra

suggested that the parties be allowed to submit their initial round of direct

examination by way of affidavit to “speed things up.” Mrs. Tyra did not object at the

time.

        {¶4}   Mrs. Tyra did object to the procedure prior to the commencement of

trial, and asked, “How am I supposed to cross examine a piece of paper.” The

magistrate replied that she had the witness in front of her.

        {¶5}    Mr. Tyra’s entire case-in-chief consisted of his stating his name and

address and his authentication of an affidavit drafted by his attorney. The affidavit

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was provided for the first time to Mrs. Tyra at the hearing, and she was permitted

just five minutes to review the ten-page document. Mrs. Tyra was then afforded less

than one hour to cross-examine Mr. Tyra about the lengthy and unfamiliar

document.

        {¶6}    There was no indication at the hearing that Mr. Tyra had prepared the

document. His attorney asked him only if he “had read” the document. And a review

of its contents makes abundantly clear that it was written by a lawyer, not by Mr.

Tyra.

        {¶7}    At the conclusion of the hearing, the magistrate took the matter under

submission and later issued a decision. While both parties filed objections to the

decision of the magistrate, Mrs. Tyra did not object to the use of Mr. Tyra’s affidavit

at the hearing. After ruling on the objections, the trial court issued a decree of

divorce.

                             Admission of Affidavit Testimony
                                     was Plain Error

        {¶8}    In her first assignment of error, Mrs. Tyra claims that it was plain

error for the trial court to admit Mr. Tyra’s affidavit at the final hearing on the

property division.        Specifically, she contends that the affidavit constituted

inadmissible hearsay. We agree.

        {¶9}    “Hearsay” is a statement offered in evidence to prove the truth of the

matter asserted. Evid.R. 801(C). Under this definition, it is clear that Mr. Tyra’s

affidavit, admitted at the hearing as his initial direct examination, constituted

hearsay. The question that remains, therefore, is whether its admission rose to the

level of plain error.




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       {¶10}     Generally speaking, the failure to timely advise a trial court of

possible error, by objection or otherwise, results in a waiver of the issue for purposes

of appeal. See Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 436-

437, 659 N.E.2d 1232 (1996). In 1997, the Supreme Court of Ohio recognized the

limited possibility for plain error in the civil context, but the court cautioned that

       the plain error doctrine is not favored and may be applied only in the

       extremely rare case involving exceptional circumstances where error,

       to which no objection was made at the trial court, seriously affects the

       basic fairness, integrity, or public reputation of the judicial process,

       thereby challenging the legitimacy of the underlying judicial process

       itself.

Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997).

       {¶11}     Despite this undeniably stringent standard, Mrs. Tyra is entitled to

appellate review in this case. As the dissent acknowledges, the admission of the

affidavit patently violated the hearsay rule. Moreover, the wholesale admission of

what was unquestionably inadmissible evidence did impugn the fairness, integrity,

and public reputation of the judicial process. The trial court, in permitting the

witness simply to ratify the contents of an affidavit that had been prepared before

trial, abdicated its function of ensuring that only competent evidence be admitted.

       {¶12}     But the violence done to the fundamental rules of trial procedure did

not stop there.     Admission of the affidavit also violated Mrs. Tyra’s right to

meaningful cross-examination. As an even cursory review of the transcript of the

“proceeding” demonstrates, it is nearly impossible to cross-examine a witness about

a document with which the examiner is unfamiliar, especially when the witness did




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not even prepare the document. And, of course, the rule about “leading” a witness is

jettisoned when the attorney drafts the witness’s testimony.

       {¶13}   In the context of motion proceedings, courts have often condemned

the use of competing affidavits to decide cases on their merits. See, e.g., Wiley v.

Cleveland, 8th Dist. Cuyahoga No. 62543, 1993 Ohio App. LEXIS 2628 (May 20,

1993) (trial court’s attempt to conduct trial by affidavit in summary-judgment

proceedings called “unacceptable”); Gluck Ins. Agency v. Schuler, 7th Dist.

Mahoning No. 90 C.A. 110, 1991 Ohio App. LEXIS 3240 (July 3, 1991) (trial court

should not conduct a “little trial” by affidavits in deciding a summary-judgment

motion); O’Hearn v. Riegert, 12th Dist. Butler No. CA86-01-005, 1986 Ohio App.

LEXIS 9222 (Nov. 24, 1986) (questioning the trial court’s ability to weigh conflicting

affidavits in Civ.R. 60(B) proceedings).       The courts in these cases have explicitly

recognized the inherent deficiencies in the use of affidavits to resolve issues of

credibility.

       {¶14}   To make matters worse, Mr. Tyra’s affidavit failed even to comport

with the standards for admission of an affidavit in those instances where affidavits

are properly considered.     Rather, it violated the most basic requirement for an

affidavit: it failed to state that it was made based on the personal knowledge of the

affiant. See Civ.R. 56(E); First Place Bank v. Adkins, 6th Dist. Lucas No. L-12-1095,

2012-Ohio-5987, ¶ 13.

       {¶15}   The dissent notes that it can find no authority for the proposition that

the admission of an affidavit as evidence in a trial setting, during which the affiant is

present and subject to cross-examination, would amount to plain error. But this

absence of authority should not be construed as approval of the procedure. Rather, it

is almost certainly the novelty of the magistrate’s approach that accounts for the


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dearth of analogous precedent. As the magistrate himself stated when he ordered

the trial by affidavit, “[i]n 31 years I’ve never had that happen * * *.”       Far more

telling than the lack of authority condemning the practice employed here is the

complete lack of any authority authorizing such a departure from the rules of

procedure.

       {¶16}    The dissent suggests that the evident unfairness of the trial was due

not to the procedures employed, but to Mrs. Tyra’s lack of diligence in asserting her

rights. And while pro se litigants are generally held to the same standards as parties

represented by counsel, that presumes a judicial process where the rules are

assiduously followed. It seems patently unfair to hold Mrs. Tyra to a higher standard

than the judicial officers entrusted with ensuring she received a fair trial.

       {¶17}    Mrs. Tyra was entitled to a fair trial. What she received was neither

fair, nor a trial. We sustain Mrs. Tyra’s first assignment of error.

                                Remaining Claims Moot

       {¶18}    In her second assignment of error, Mrs. Tyra contends that it was

plain error for the magistrate to hear the merits of the case because he was

“involved” in mediation of the case. In her third assignment of error, Mrs. Tyra

argues that it was plain error for the trial court to place time limitations on the

presentation of evidence for both parties. In light of our disposition of the first

assignment of error, these remaining assignments are moot, and we decline to

address them.




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                                     Conclusion

       {¶19}   Because the use of an affidavit in lieu of direct testimony at the

hearing of this case was plain error, we reverse the decision of the trial court and

remand the cause for a new hearing consistent with this opinion.

                                         Judgment reversed and cause remanded.


HILDEBRANDT, P.J., concurs.
DINKELACKER, J., dissents.
DINKELACKER, J., dissenting.

       {¶20}   While this court has not specifically addressed the issue of whether

the admission of hearsay can constitute plain error, we have held that the trial court’s

consideration of evidence not properly before it does not constitute plain error.

Midland Funding LLC v. Farrell, 1st Dist. Hamilton No. C-120674, 2013 Ohio App.

LEXIS 3291 (July 24, 2013). In an action on an account, this court held that a party

could not argue for the first time on appeal that the documents constituting the

account had not been properly authenticated. Id.

       {¶21}   I have found no authority for the proposition that the admission of an

affidavit as evidence in a hearing, during which the affiant is present and subject to

cross-examination as to its contents, amounts to plain error. And I simply cannot

conclude that the admission of Mr. Tyra’s affidavit, when he was present and cross-

examined by Mrs. Tyra, challenged the “legitimacy of the underlying judicial process

itself.” In the context of criminal proceedings, the Ohio Supreme Court has held that

“when the declarant appears for cross-examination at trial, the Confrontation Clause

places no constraints at all on the use of his prior testimonial statements. * * * The

Clause does not bar admission of a statement so long as the declarant is present at

trial to defend or explain it.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954



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N.E.2d 596, ¶ 113. If the availability of the declarant for cross-examination satisfies

the constitutional safeguards enshrined in the Confrontation Clause, it is safe to

conclude that such a situation would not rise to the level of plain error in a divorce

proceeding.

       {¶22}   The reason that plain error is so rarely recognized in the context of

civil litigation is that parties should be required to safeguard their own interests at

trial. If there is a problem with how the case is being managed, the aggrieved party’s

first and best opportunity to address the issue is at the time of its occurrence. This

allows the trial court to correct its course when such correction can be most effective.

       {¶23}   In this case, Mrs. Tyra was told on February 12, 2013, that the parties

would be allowed to submit their direct examinations by way of affidavit at the

March 19, 2013 hearing. She could have objected to the procedure at that time and

given the magistrate the opportunity to adjust. She did not. She did not argue this

point to the trial court, which could have reset the matter at the savings of

considerable judicial resources. Instead, she waited until after the final decision of

the trial court and raised the issue for the first time in this court. The use of an

affidavit in this case did not amount to plain error. I dissent.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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