Chupka v. Saunders

Per Curiam. Appellant Chupka asserts that the court of appeals erred in its refusal to remand the cause to the court of common pleas for a trial due novo following the discovery that the court of common pleas had ruled on an incomplete record. We agree. Administrative and judicial review of the suspension, demotion or removal of a police officer must be conducted pursuant to R.C. 124.34, which provides in pertinent part: “In the case of the suspension * * * or removal of * * * any member of the police or fire department of a city or civil service township, * * * [a]n appeal on questions of law and fact may be had from the decision of the municipal or civil service township civil service commission to the court of common pleas in the county in which such city or civil service township is situated. * * *” In Cupps v. Toledo (1961), 172 Ohio St. 536 [18 O.O.2d 82], paragraph two of the syllabus, we held that “[t]he appeal on questions of law and fact from the affirmance by a civil service commission of a municipality of an order of dismissal of a member of the police department * * * is a trial de novo * * *.” The scope of a trial de novo is governed by the provisions of R.C. Chapter 2505 to the extent they are applicable. See Newsome v. Columbus Civ. Serv. Comm. (1984), 20 Ohio App. 3d 327, 329; In re Locke (1972), 33 Ohio App. 2d 177 [62 O.O.2d 276]. R.C. 2505.21, which is among the applicable provisions, provides in part as follows: “An appeal taken on questions of law and fact entitles the party to a hearing and determination of the facts de novo which shall be upon the same or amended pleadings. The court shall review the final order, judgment or decree upon such part of the record made in the trial court as any party may present to the court and such additional evidence as upon application in the interest of justice the court may authorize to be taken, such evidence to be presented in the manner and form prescribed by the court.” Thus, in a trial de novo the court of common pleas is empowered to “* * * substitute its own judgment on the facts for that of the commission, based upon the court’s independent examination and determination of conflicting issues of fact. * * *” Newsome, supra, at 329. The “trial,” in a trial de novo, is the “independent judicial examination and determination of conflicting issues of fact and law, notwithstanding the evidence before the appellate court consists of the record of the proceedings in the lower tribunal.” Lincoln Properties v. Goldslager (1969), 18 Ohio St. 2d 154 [47 O.O.2d 316], paragraph one of the syllabus. The trial is not necessarily [328] “* * * a second event where the witnesses personally reappear and reaffirm or respeak their previous testimony.* * *” Id. at 161. In fact, evidence in addition to the transcript and record of the commission’s proceedings may only be admitted with the express permission of the reviewing court. Newsome, supra; Resek v. Seven Hills (1983), 9 Ohio App. 3d 244. Since the appeal to the court of common pleas is upon the record from the commission, the availability of that record to the court of common pleas is crucial to proper disposition of the case before it. In this case, the transcript of the commission’s dispositional hearing was erroneously omitted from the record sent to the court of common pleas. The trial judge stated that his decision was made on the “entire record” (emphasis added) certified and filed by the commission. It is obvious that the trial court believed that it had the entire record before it and rendered its decision based on that assumption. While R.C. 2505.21 provides that an independent review can be “* * * upon such part of the record made in the trial court as any party may present to the court,” the partial record before the trial court here was not sufficient under these circumstances. Neither party realized that the commission had failed to transcribe the dispositional hearing until the case was before the court of appeals. Chupka had requested that the commission send the entire record to the trial court and Saunders relied on that request. If Chupka had affirmatively requested that only a portion of the record be transcribed, Saunders could then have requested an additional portion of the record. Since the commission failed to comply with the praecipe and did not provide the court of common pleas with the entire record as requested by appellant, the court of appeals should have remanded the cause to the trial court to reconsider its decision and decide the cause on the entire record. The commission’s error caused the record to be incomplete. Therefore, the commission should not be able to avoid a review of its decision by the appropriate forum as a result of that failure. Moreover, the court of appeals erred in deciding the case on the supplemented record. “A reviewing court cannot add matter to the record before it, which was not a part of the trial court’s proceedings, and then decide the appeal on the basis of the new matter.” State v. Ishmail (1978), 54 Ohio St. 2d 402 [8 O.O.3d 405], paragraph one of the syllabus. Therefore, the judgment of the court of appeals is reversed and this cause is remanded to the court of common pleas for a trial de novo. Judgment reversed and cause remanded. Sweeney, Locher, Holmes, C. Brown, Douglas and Wright, JJ., concur. Celebrezze, C.J., concurs in judgment only.