Keatley v. United National Bank & Trust Co.

Putman, P. J. This is an appeal from the entering of a defendant’s judgment in a civil case in which a money judgment was sought in the Court of Common Pleas of Stark County. No claim of right to a jury trial was made, and the cause was referred to a referee under Civ. R. 53. The referee conducted a hearing on June 25 and 26 of 1979; and, on June 28, 1979, the referee filed a four-page document, consisting of separately stated Findings of Fact and Conclusions of Law and recommending a defendant’s judgment. On July 30, 1979, the trial court filed for journalization its judgment entry, entering a defendant’s judgment and incorporating the referee’s report therein in full. No objections to the referee’s report were ever filed, but a timely notice of appeal from the judgment was filed on August 15, 1979. We overrule all five assignments of error and affirm the trial court for the reason that none of the matters assigned as error were ever called to the attention of the trial court in time for him to have corrected them. We reach this conclusion solely upon the strength of Civ. R. 53(E), which requires objections to the referee’s report and which reads, in full, as follows: “(E)(1) The referee shall prepare a report upon the matters submitted to him by the order of reference. He shall file the report with the clerk of the court and shall mail a copy to the parties. In an action on the merits of an issue to be tried without a jury, he shall file with his report a transcript of the proceedings and of the evidence only if the court so directs. “(2) A party may, within fourteen days of the filing of the report, serve and file written objections to the referee’s report. Such objections shall be considered a motion. Objections shall be specific and state with particularity the grounds therefor. Upon consideration of the objections the court may: *200 adopt, reject or modify the report; hear additional evidence; return the report to the referee with instructions; or hear the matter itself. “(3) The effect of a referee’s report is the same whether or not the parties have consented to the reference. When the parties stipulate in writing that a referee’s findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered. “(4) Before filing his report a referee may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions. The referee shall sign any findings or decision and file it together with any exceptions. “(5) The report of a referee shall be effective and binding only when approved and entered as a matter of record by the court.” In our view, the requirement of preserving a claim of error by making an appropriate objection in the trial court is the concept captured by the objection requirement expressly stated in Civ. R. 53(E). The requirement of calling the matter to the attention of the trial court as a predicate of appellate review is a proposition of law of general application settled beyond question. See, for example, the voluminous authorities collected in 4 Ohio Jurisprudence 3d, Appellate Review, Section 137. We have carefully considered the alternate view of this appeal which is that the trial judge had the sua sponte responsibility to review the referee’s four-page Findings of Fact and Conclusions of Law and to verify, to his own satisfaction, the correctness thereof. We reject this view. It is our opinion that the function of Civ. R. 53(E)(2), which requires objections to the referee’s report, is to relieve the trial court of that responsibility. Assuming, arguendo, that we would have found for the plaintiffs had we been sitting with the de novo responsibility of the trial court, that is not our task. We cannot escape considering the view from the position of the trial judge who, in our opinion, cannot be said to have erred in ruling upon any matter properly before him, in the absence of objection or any other warning from trial counsel for plaintiffs. Because of the view we hold of this case, it is not necessary for us to fatten this memorandum by a restatement of the assignments of error or a retyping of the referee’s four-page *201 report. It is our understanding that those matters will be, of necessity, reproduced should any motion to admit this case be addressed to the Supreme Court. More importantly, we do not wish to obscure the narrow basis upon which our affirmance rests. Judgment affirmed. Dowd, J., concurs separately. Rutherford, J., concurs in part and dissents in part.