RULES OF CIVIL PROCEDURE - Supreme Court

Civ.R. 65.1(F)(3)(b): A magistrate’s denial or granting of a protection order after a fullhearing does not constitute a magistrate’s order or a magistrate’s decision under Civ.R.53(D)(2) or (3) and Is not subject to the requirements of those rules;Civ.R. 65.1(F)(3)(c)(iv): A court’s adoption, modification, or rejection of a magistrate’sdenial or granting of a protection order after a full hearing does not constitute a judgmentor interim order under Civ.R. 53(D)(4)(e) and is not subject to the requirements of thatrule.The adoption of Civ.R. 65.1(F) also nullifies comments in the 2006 Staff Note to Civ.R.53(D)(2)(a)(i) relating to the entry of temporary protection orders under R.C. 3113.31.The listing above is not exclusive or comprehensive. Additional provisions of Civ.R. 53 relatingto such matters as the authority and responsibilities of a magistrate are also affected by Civ.R.65.1(F). As indicated in the Staff Notes to Rule 65.1, the rule was adopted to provide a set ofprovisions uniquely applicable to civil protection order proceedings and to provide the court with thediscretion to suspend the application in such proceedings of any other rules to the extent that theirapplication interferes with the statutory process or are inconsistent with its purposes.Rule 53 MagistratesStaff Note (July 1, 2003 amendment)Rule 53(E)Decisions in referred matters2003.The amendment to this rule is identical to an amendment to Juv. R. 40(E), also effective July 1,It was suggested to the Rules Advisory Committee that the waiver rule prescribed by sentence fourof former Civ. R. 53(E)(3)(b) [now division (E)(3)(d)] sometimes surprised counsel and pro se litigantsbecause they did not expect to be required to object to a finding of fact or conclusion of law in a magistrate’sdecision in order to assign its adoption by the trial court as error on appeal. A review of relevant appellatedecisions seemed to confirm that suggestion.It was further suggested that counsel or a pro se litigant was particularly likely to be surprised by thewaiver rule of sentence four of former Civ. R. 53(E)(3)(b) if a trial court, as authorized by sentence two of Civ.R. 53(E)(4)(a), adopted a magistrate’s decision prior to expiration of the fourteen days permitted for the filingof objections. See, e.g., Riolo v. Navin, 2002 WL 502408, 2002-Ohio-1551 (8th Dist. Ct. App., 4-19-2002).Since 1995, the potential for surprise posed by the waiver rule may have been exacerbated by thefact that, under the original version of Civ. R. 53, a party did not, by failing to file an objection, waive the rightto assign as error on appeal the adoption by a trial court of a finding of fact or conclusion of law of a referee.Normandy Place Associates v. Beyer, 2 Ohio St.3d 102, 103 (1982) (syl. 1). As of July 1, 1985, sentenceone of Civ. R. 53(E)(6) was amended to read “[a] party may not assign as error the court’s adoption of areferee’s finding of fact unless an objection to that finding is contained in that party’s written objections to thereferee’s report” (emphasis added). See State ex rel. Donah v. Windham Exempted Village Sch. Dist. Bd. ofEd., 69 Ohio St.3d 114, 118 (1994)(confirming that the waiver rule of sentence one of the 1985 version ofCiv. R. 53 applied only to findings of fact by a magistrate). The present waiver rule, which applies to bothfindings of fact and conclusions of law, took effect July 1, 1995, and represents a complete reversal of the nowaiver position of the original Civ. R. 53. See State ex rel. Booher v. Honda of America Mfg., Inc., 88 OhioSt.3d 52 (2000)(confirming that the waiver rule now applies to conclusions of law as well as to findings of factby a magistrate).The amendment thus makes three changes in Civ. R. 53(E), none of which are intended to modifythe substantive scope or effect of the waiver rule contained in sentence four of former Civ. R. 53(E)(3)(b)