As appellate counsel, it is important to clearly state the assigned errors and the reasons and arguments in support. Sometimes an appellate panel debates the merits of missing arguments more than the parties. In Yurkowski v. Univ. of Cincinnati, the result favored the plaintiffs, despite their lack of specificity. It was the second appeal to the Tenth District, the first resulting in a reversal after a bench trial. In the first appeal, the Tenth District held that the trial court used the wrong standard of care in determining whether the defendants breached a duty owed to the plaintiffs. After informing of the correct standard, the matter was remanded. Upon remand, a successor judge ordered briefs on the issue, and resolved the matter again in favor of the defendants.
In the second appeal, the plaintiffs argued that judgment was against the manifest weight of the evidence. From that argument, the majority gleaned that the plaintiffs assignment of error focused on the fact that a successor judge, could not rely on the credibility determinations made by her predecessor following a bench trial. The testimony must be heard anew. The problem with this argument wasn't with the subject matter. It is a fairly settled proposition of law. The problem was the plaintiffs never advanced an assigned error with respect to whether the trial court erred by failing to hold a new trial or take new evidence. The majority accepted that issue solely based on the plaintiffs' argument for a de novo standard of review in reviewing the manifest-weight arguments (decidedly not reviewed under a de novo standard). As the dissenting Judge Klatt indicated, the plaintiffs never requested an evidentiary hearing on remand, did not object to the use of the existing record, did not assign error to the failure to hold a new evidentiary hearing, and did not assign error to the failure to hear new evidence. In other words, the majority opinion was based on issues outside the scope of the appellate review and raised sua sponte by the panel on appeal.
There is support for the dissent's position. Typically, appellate courts will not allow appellants to raise issues for the first time on appeal if the timely assertion could have prevented the mistake. Further, in State v. Tate, the Ohio Supreme Court held that appellate courts should not decide cases on the basis of unbriefed issues without giving the parties notice and an opportunity to present arguments. It appears that is what happened in the Yurkowski case. The appellants did not fully brief or argue an issue the majority of judges on the panel deemed dispositive. Although the panel accepted the issue this time, it could have easily avoided the issue and affirmed the trial court's judgment. That is an unenviable position for either party. This might be a situation where reconsideration would be warranted in order to have the issue fully briefed by both sides.
