State ex rel. Montgomery v. R & D Chemical Co.

Douglas, J. This case is fraught with procedural infirmities. The court of appeals affirmed the judgment of the trial court, finding that appellants failed to properly file a trial transcript. Indeed, “where a transcript of any proceeding is necessary for disposition of any question on appeal, the appellant bears the burden of taking steps required to have the transcript prepared for inclusion in the record.

Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 15 O.O.3d 218, 400 N.E.2d 384. Any lack of diligence on the part of an appellant to secure a portion of the record necessary to his appeal should inure to appellant’s disadvantage rather than to the disadvantage of appellee.” Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 19, 520 N.E.2d 564, 565-566.

In addition to appellants’ omission, we are also confronted with an omission on the part of appellee. Following the entry of judgment of the court of appeals, appellants properly perfected an appeal to this court. Appellants timely filed their notice of appeal, memorandum in support of jurisdiction and merit brief. Appellee filed a memorandum in response to appellants’ memorandum in support of jurisdiction.

Appellee, however, failed to file its merit brief within the time allowed by the Rules of Practice of this court. Appellee attempted to file its brief beyond the thirty-day period set forth in S.Ct.Prac.R. VI(2) and, as such, appellee’s brief was properly rejected by the Clerk. Accordingly, we also denied appellee’s request for leave to participate in oral argument. Hence, given appellee’s omission in this court, we are tempted to borrow from App.R. 18(C) and find that the facts, issues and assertions properly set forth in appellants’ brief, when accepted as correct, reasonably appear to sustain a reversal of the judgment of the court of appeals.

However, rather than attempt to assess which party is more at fault or which party has committed the more egregious omission, we believe, given the important issues involved in this case and the fact that a trial transcript is indeed available,1 that this case should be decided on the merits. This court has long recognized the fundamental tenet of judicial review in Ohio that courts should decide cases on the merits. Hawkins v. Marion Correctional Inst. (1986), 28 Ohio St.3d 4, 28 OBR 3, 501 N.E.2d 1195. “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, 213, 431 N.E.2d 644, 647. For the foregoing reasons, the judgment of the court of appeals is reversed for the limited reason and on the limited basis that this particular case, because of the importance of the issues involved and notwithstanding its procedural deficiencies, should be decided on its merits. Accordingly, the cause is remanded to that court for further consideration, which consideration should include a review of the trial transcript as part of a merit consideration and disposition.

Judgment reversed and cause remanded. Moyer, C.J., Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Wright and Cook, JJ., concur separately. .

On May 3, 1994, a transcript of trial was filed in this court as part of this appeal.