[Cite as In re Holmes, 104 Ohio St.3d 664, 2004-Ohio-7109.]




                                 IN RE HOLMES ET AL.
          [Cite as In re Holmes, 104 Ohio St.3d 664, 2004-Ohio-7109.]
Appellate practice — Record on appeal — App.R. 9 — Deficiency in record
        transmitted to court of appeals may not be used as basis for entering
        judgment for appellee, when.
   (No. 2003-2220 — Submitted June 9, 2004 — Decided December 30, 2004.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-030441.
                                  _________________
        PFEIFER, J.
                          Factual and Procedural Background
        {¶ 1} Appellant, Jeffrey Turner, is the father of two minor children,
Desire Holmes and Dynasty Roe. Turner was not the custodial parent of his
daughters but sought their custody when their mother was incarcerated. Appellee,
Hamilton County Department of Job and Family Services, opposed Turner, filing
a complaint with the juvenile court asserting that the children should be
committed to the permanent custody of the county. After a four-day hearing, a
magistrate found that the county should assume custody. The magistrate issued a
decision on January 8, 2003.
        {¶ 2} On May 30, 2003, the Hamilton County Juvenile Court issued an
entry adopting the magistrate’s decision of permanent commitment.         Turner
appealed from that decision to the Hamilton County Court of Appeals.
        {¶ 3} In accordance with App.R. 9(B), Turner ordered from the court
reporter a complete transcript of the proceedings for inclusion in the record on
appeal. On June 19, 2003, the appellate court notified Turner that the record had
been filed.
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       {¶ 4} Both parties submitted timely appellate briefs.          Neither party
asserted that the record was incomplete. At oral argument, neither the parties nor
the appellate panel noted any shortcoming in the record.
       {¶ 5} On December 10, 2003, the appellate court affirmed the judgment
of the trial court. The court’s decision was not made on the merits of the case,
however. Instead, the court decided for the appellee based on “the absence of a
complete and adequate record.”
       {¶ 6} While the transcripts of the magistrate’s hearings and the trial
court’s hearing were included in the record, some exhibits were missing. The
court of appeals wrote:
       {¶ 7} “The record indicates that Dornetta Turner’s child-care certificate,
Jeffrey Turner’s birth certificate and affidavit, a February 22, 2002, psychiatrist’s
letter, a certificate of completion for the Raising Great Kids program, and the
exhibits admitted at a February 26, 2002 hearing, including a certified copy of the
indictment, paternity testing for Dynasty and Desire, Mr. Holmes’s letter, a ‘PC
entry,’ and a report establishing that Holmes is the father of Darricka, were
considered in the trial court. However, these exhibits have not been made a part
of the appellate record. Without the exhibits, we may not speculate on the content
of them, particularly the paternity testing and Mr. Holmes’s letter. Accordingly,
we presume the regularity of the trial proceedings and overrule Turner’s
assignments of error relating to the trial court’s findings.”
       {¶ 8} Any deficiency in the record was not the fault of Turner. The court
reporter had not included the exhibits admitted in the juvenile court proceedings
with the transcripts. Turner has subsequently learned, and it is not disputed by the
appellee, that after the hearing in the trial court, a court employee filed at least
some of the exhibits under the wrong case number.
       {¶ 9} Turner asks that the entry of the court below be reversed and that
the cause be remanded to the appellate court for consideration on the merits.




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       {¶ 10} The cause is before this court upon our acceptance of a
discretionary appeal.
                                 Law and Analysis
       {¶ 11} “Fairness and justice are best served when a court disposes of a
case on the merits.” DeHart v. Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189, 193,
23 O.O.3d 210, 431 N.E.2d 644. Still, there are plenty of instances where a case
can, and should, be decided on purely procedural grounds. Where procedural
deficiencies arise out of the neglect of a party, the party can blame only himself
for the failure of his case. That situation is not the case in Turner’s unique
circumstance. The shortcomings of the record in this case were the fault of
others: a court reporter and the court employee who misfiled the necessary
documents. Not only were the mistakes not the fault of Turner, he was not even
made aware of them until the court of appeals announced its decision.
       {¶ 12} Ohio’s Rules of Appellate Procedure recognize that mistakes can
be made in the filing of a record and provide ways to fix deficiencies. Here, the
court of appeals had the ability on its own initiative to direct the correction of the
record prior to judgment. App.R. 9(E). We address whether its failure to do so in
this case constituted an abuse of discretion. App.R. 9(E) provides:
       {¶ 13} “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.)




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       {¶ 14} The lack of fault on behalf of the appellant is an important aspect
of this case. In Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 15
O.O.3d 218, 400 N.E.2d 384, this court addressed a case where the plaintiffs were
unable to file a significant portion of the trial court record due to an illness that
befell the court reporter, rendering her unable to transcribe her notes. This court
found that the plaintiffs’ inability to produce a full transcript should not lead to an
affirmance of the trial court’s judgment.       The court did find fault with the
plaintiffs’ failure to avail themselves of App.R. 9(C), which allows for the
creation from memory of a narrative version of a transcript, or App.R. 9(D),
which allows for the parties to submit an agreed statement of the case rather than
a full transcript. However, this court found that plaintiffs’ failure to pursue those
remedies was partly due to the “lackadaisical” attitude of the trial court. Id. at
200, 15 O.O.3d 218, 400 N.E.2d 384. This court finally held that the case should
be remanded to the trial court and that the trial court should encourage the
building of the record through App.R. 9(C) or (D).
       {¶ 15} Here, since Turner did not know about the deficient record until
after the appellate court ruled, he could not seek to correct the record through
App.R. 9(C) or (D). Moreover, this court granted relief to the plaintiffs in Knapp
even though they knew of the court reporter’s inability to transcribe the record at
the time they filed their appeal. Here, Turner was blindsided in addition to being
free from fault.
       {¶ 16} In Cobb v. Cobb (1980), 62 Ohio St.2d 124, 16 O.O.3d 145, 403
N.E.2d 991, this court found that the court of appeals abused its discretion by
overruling the appellants’ App.R. 9(E) motion that would have corrected the trial
court clerk’s filing error. In Cobb, the trial court clerk failed to transmit the
appellee’s motion for relief and the trial court’s judgment in the underlying case.
During oral argument, the appellate court informed the appellants of the missing
documents. Appellants filed an App.R. 9(E) motion, which was denied. This




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court held that the appellate court should have granted the motion, “prevent[ing]
appellants from suffering an injustice solely because of the nonfeasance of the
trial court clerk.” Id. at 127, 16 O.O.3d 145, 403 N.E.2d 991.
       {¶ 17} Further, this court rejected the notion that an appellant has the duty
to supervise the actions of a trial court clerk to ensure the proper transmission of
the record. This court held that placing that duty on an appellant “would render
meaningless the duty imposed upon the clerk, by App.R. 10(B), to transmit the
record to the Court of Appeals.” Id., 62 Ohio St.2d at 125, 16 O.O.3d 145, 403
N.E.2d 991.
       {¶ 18} Here, Turner did not have the legal duty to stand over the trial
court clerk’s shoulder to ensure that all the exhibits were filed. The proper
transmission of the record was the duty of the trial court clerk pursuant to App.R.
10(B). Like the appellants in Cobb, Turner should not suffer an injustice because
of the nonfeasance of court personnel.
       {¶ 19} An appellate court has the power on its own initiative to order the
correction of an imperfect trial record. App.R. 9(E). Turner was seeking custody
of his children and lost a chance to have his case heard on the merits because of
an incomplete trial record. The trial record was incomplete through no fault of
Turner. The deficiencies in the record were not discovered by either party or
mentioned by the appellate panel at oral argument. Nothing in the record suggests
that Turner should have been aware of the deficiencies. Missing from the record
were several documents; mending the record would not have necessitated the re-
creation of testimony. Nevertheless, Turner was never given the opportunity to
undertake simple corrective measures, because the court of appeals mentioned the
deficient record only in its final judgment.
       {¶ 20} Taking these unique facts into account, we find that the appellate
court’s failure to employ the corrective measures set forth in App.R. 9(E)
constituted an abuse of discretion.




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       {¶ 21} Accordingly, we reverse the judgment of the court of appeals and
remand the cause to that court for a correction of the record and consideration on
the merits.
                                                               Judgment reversed
                                                             and cause remanded.
       MOYER, C.J., RESNICK, F.E. SWEENEY, LUNDBERG STRATTON, O’CONNOR
and O’DONNELL, JJ., concur.
                              __________________
       Jones Day and Chad A. Readler, for appellant.
       Michael K. Allen, Hamilton County Prosecuting Attorney, Scott M.
Heenan and Mark Sauers, Assistant Prosecuting Attorneys, for appellee.
       Eugene P. Whetzel; Porter, Wright, Morris & Arthur, L.L.P., David S.
Bloomfield Jr., Kathleen M. Trafford, and L. Bradfield Hughes, urging reversal
for amicus curiae, Ohio State Bar Association.
                           _____________________




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