Thomas v. Shaevitz, Unpublished Decision (9-16-1999)

• Court: Ohio Court of Appeals
• Decided: September 16, 1999
• Docket: No. 98AP-1370.
• Status: Unpublished

Opinion

MEMORANDUM DECISION ON MOTION Defendants-appellees, Robert M. Shaevitz et al., have filed a motion to strike plaintiffs-appellants' notice of supplementation of the record and the deposition excerpt attached thereto. For the reasons that follow, we find the motion well-taken and grant the motion to strike.

This appeal was argued on July 1, 1999. At oral argument, counsel for appellants represented that a portion of the deposition of Mr. Shaevitz was "in the file," but under seal. This court indicated that, based on its perusal of the record to that point, it had been unable to locate the sealed portion of Mr. Shaevitz's affidavit. Counsel for appellants offered to supplement the record and this court responded "[y]ou may wish to do that."

On July 8, 1999, appellants filed their notice of supplementation of the record, together with a portion of the deposition transcript of Mr. Shaevitz. This portion of the transcript had never before been transcribed and had been placed "under seal" by counsel for the parties at the time of Mr. Shaevitz's deposition. When the Shaevitz deposition was filed with the trial court, the "sealed" portion was not filed.

App. R. 9(E), upon which appellants rely, permits the court of appeals to direct supplementation of the record when the transmitted evidence is omitted from the record by error or accident. In this case, the sealed portion of Mr. Shaevitz's deposition was never part of the record before the trial court and, accordingly, we may not consider it here for the first time on appeal.

Based on the foregoing, appellees' motion to strike is granted, and appellants' notice of supplementation of the record and the corresponding exhibit is ordered stricken in its entirety.

Motion to strike notice of supplementation of record withexhibits granted.

PETREE and BROWN, JJ., concur.