Appeal of Smith v. Chester Township Board of Trustees

Sweeney, J.

In this cause we are initially confronted with the issue of whether the order to appellant to prepare and file the transcript of hearing testimony is a final, ap-pealable order, defined in R. C. 2505.02 as:

“An order affecting a substantial right in an action which in effect determines the action and prevents a judgment, [or] *15an order affecting a substantial right made in a special proceeding***.”

The Court of Common Pleas relied upon R. C. 2506.02 as authority for its order that appellant initially pay the cost of preparing the transcript. That section provides that “[t]he costs of such transcript shall be taxed as a part of costs of the appeal.” Therefore, if appellant is successful on appeal, it could recover the expense incurred in preparing the transcript. The situation here is analogous to the case where a party has been ordered to deposit money with a court as security. The majority view is that such an order is interlocutory and thus not appealable because it does not finally determine the rights of the parties. See Annotation, 15 A.L.R. 3d 568, 570. Similarly, the instant order does not affect a substantial right of appellant, but is merely interlocutory in nature. Snell v. Cincinnati St. R. Co. (1899), 60 Ohio St. 256, 272. The Court of Appeals therefore correctly granted appellee’s motion to dismiss, and we affirm its judgment in case No. 78-1448.

A separate procedural question that arises herein is whether, on an appeal of the contempt order, the order to produce a transcript is reviewable as the underlying basis for the judgment of contempt. Although R. C. 2705.09 provides, in part, that “[t]he judgment and orders of a court or officer made in cases of contempt may be reviewed on appeal,” this court has never directly considered this particular issue. However, the question was addressed by the court in People, ex rel. Hawthorne, v. Hamilton (1973), 9 Ill. App. 3d 551, 553, 292 N. E. 2d 563, 565, which held that “where an unap-pealable interlocutory order results in a judgment of contempt including fine or imprisonment such a judgment is a final and appealable judgment and presents to this court for review the propriety of the order of the court claimed to have been violated.” See Sanborn v. Blankenheim (1952), 346 Ill. App. 214, 104 N. E. 2d 573; Tobey v. Tobey (1974), 165 Conn. 742, 745-746, 345 A. 2d 21; State v. Washington (1978), 83 Wis. 2d 808, 815, 266 N. W. 2d 597, at fn. 3; contra, In re Sigesmund (1961), 193 Cal. App. 2d 219, 223, 14 Cal. Rptr. 221.

*16We agree with the court in People, ex rel. Hawthorne, supra, that in order for there to be a meaningful review of the contempt adjudication, the appellate court must be able to consider the propriety of the underlying order, even though that order is itself not appealable.1 Thus, the Court of Appeals correctly proceeded to the merits of the appeal, a task we now also undertake.

The central controversy in this cause concerns which party should initially pay the expense of preparing the transcript of hearing testimony. The confusion is caused by a disagreement as to which of two filing statutes controls. R. C. 2505.08, maintained to be controlling by the board, provides, in part, that “[t]he cost of the production of the transcript of testimony* ** shall be paid initially by the party perfecting the appeal***.” On the other hand, R. C. 2506.02, asserted by appellee as being controlling, states, in part, that “the of-* ficer or body from which the appeal is taken shall* * * prepare and file in the court to which the appeal is taken, a complete transcript of all the original papers, testimony and evidence***.”

In determining which of the two statutes in question controls the procedure in appeals of administrative orders, we are guided by R. C. 2506.01 which provides, in essence, that R. C. Chapter 2505 applies, except to the extent it is modified by R. C. Chapter 2506. We find that R. C. 2506.02 does modify R. C. 2505.08 in this instance.

This conclusion is supported by the fact that, although R. C. Chapter 2505 applies to appeals from judgments of trial courts, R. C. Chapter 2506 was enacted by the General Assembly to specifically address appeals to the Court of Common Pleas from orders of administrative agencies.2 *17Therefore, R. C. 2506.02 is determinative as to which party should be responsible for assuming the initial expense of preparing and filing the transcript.3

Furthermore, case law in Ohio supports the view that the burden is on the administrative agency to produce the transcript for appeal. See, e.g., Fleischmann v. Medina Supply Co. (1960), 111 Ohio App. 449; Sofer v. Housing Authority (1975), 44 Ohio App. 2d 113. Implicit in these decisions is the conclusion that the duty to prepare the transcript includes the necessity of assuming the initial expense of its preparation.

In Stephan v. State Veterinary Medical Board (1960), 113 Ohio App. 538, the Court of Appeals construed the analogous filing requirements of R. C. 119.12 as mandating that the agency prepare and certify a complete record to the Court of Common Pleas. When the agency failed to file a transcript, the Court of Common Pleas, upon the motion of appellant, rendered judgment in his favor, a penalty provided for in R. C. 119.12. The Court of Appeals thereafter affirmed.

R. C. 2506.02 includes no such penalty; rather, in order to force compliance a court may have to invoke its contempt powers. 4 Such was the situation herein.

Since we find that R. C. 2506.02 requires that the agency pay the initial cost of preparing the transcript of testimony and evidence, the Court of Common Pleas could properly cite the board for contempt for refusing to comply with its order *18to produce the transcript. Therefore, we affirm the judgment of the Court of Appeals in case No. 79-108.

Judgments affirmed.

Herbert, W. Brown and P. Brown, JJ.,. concur. Celebrezze, C. J., Locher and Holmes, JJ., dissent.

We are not swayed from this conclusion by appellee’s fear that a litigant will purposefully and repeatedly refuse to obey an interlocutory order in the hope of ultimately being found in contempt and thereafter be able to obtain judicial review of the correctness of the initial order through appeal of the contempt judgment. Although the contempt finding herein was admittedly lenient, we are satisfied that trial courts can effectively discourage such dilatory tactics by cogent exercise of their contempt powers.

See Wolf and Robiner, Ohio Revised Code Chapter 2506 - Judicial Review of Administrative Rulings, 22 Cleve. St. L. Rev. 229 (1973).

An authority on appellate review has reached the same conclusion, noting that, “[sjince R. C. 2505.08 seems applicable to appeals from the judgment or final order of a court and R. C. 2506.02 is clearly intended to apply to appeals from orders of administrative officers or bodies, the latter section should be followed.” Skeel, Ohio Appellate Law (2d Ed.) 10, Outline 5 (1969).

Alternatively, if the transcript is deficient the Court of Common Pleas may proceed under R. C. 2506.03 (A) to allow the submission of additional evidence. This fact brings up an apparent incongruity between this section which provides a remedy for an incomplete transcript and R. C. 2506.02, which seems to require that the administrative body keep a complete transcript of its proceedings. We need not now decide the extent of an agency’s duty to maintain a record of its proceedings in all instances. In the present cause the fact that the board had to find “cause” to remove appellee effectively required it to keep such a record.