Opinion
Nos. 90343, 90352, 90353, 90354, 90356, 90357, 90464, 90525 and 90526.
RELEASED: July 1, 2008.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CV-606811, 610562, 585907, 588216, 588223, 581592, 621602, 612512, 616616.
DISMISSED.
Suzana K. Krasnicki, Gilbert E. Blomgren, Keith D. Weiner, Keith D. Weiner Associates Co., LPA, David M. Douglass, Sean F. Berney, Jason P. Hager, Clinton E. Preslan, Robert C. Roberts, Douglass Associates Co., Attorneys for Appellant.
Margaret A. Frazier, John Doe, 1 (unknown spouse of Margaret A. Frazier), City of East Cleveland, c/o Regional Income Tax Agency, Ellainna J. Lewis-Bevel, Deputy Law Director, Attorneys for Appellee.
Household Bank (S.B.) N.A., for Household Bank.
William D. Mason, Cuyahoga County Prosecutor, By: Anthony Giunta, Assistant County Prosecutor, for James Rokakis, County Treasurer.
Velocity Investments, LLC, Assignee of Metris Co., Inc., for Velocity Investments, LLC.
Before: Blackmon, P.J., Stewart, J., and Dyke, J.
JOURNAL ENTRY AND OPINION
{¶ 1} Sua sponte, we dismiss the instant consolidated appeal for lack of a final appealable order. In each case, the trial court merely adopted the magistrate's decision without separately stating its own judgment as required by Civ. R. 53(E)(5). A trial court order stating merely that it is adopting a magistrate's decision is not a final appealable order. In re: Zinni, Cuyahoga App. No. 59899, 2008-Ohio-581, citing Harkai v. Scherba Indus. (2000), 136 Ohio App.3d 211. To constitute a final appealable order, a court's entry reflecting action on a magistrate's decision must be a separate and distinct instrument from the decision and must grant relief on the issues originally submitted to the court. Id. citing In re: Jesmone Dortch (1999), 135 Ohio App.3d 430.
Appeal dismissed.
The appellant is responsible for all costs; appellee did not file a brief.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
ANN DYKE, J., CONCUR;
MELODY J. STEWART, J., CONCURS AND DISSENTS
MELODY J. STEWART, J., CONCURRING IN PART AND DISSENTING IN PART:
{¶ 2} I respectfully dissent from the majority's sua sponte dismissal of this consolidated appeal. All nine consolidated cases are appeals of the reduction of the award of attorney fees in a tax certificate foreclosure action. All were tried to a magistrate and all resulted in a default judgment granting a decree of foreclosure. In each case plaintiff-appellant filed a timely objection to the magistrate's decision. The majority dismisses all of the appeals, stating that: "In each case, the trial court merely adopted the magistrate's decision without separately stating its own judgment as required by Civ. R. 53(E)(5)." I find that in five of the consolidated cases, app. Nos. 90343, 90352, 90357, 90525, and 90526, the judgment entry constitutes a final appealable order.
{¶ 3} In order to constitute final judgment in a matter tried to a magistrate, the trial court must review the magistrate's decision and: (1) rule on any objections to the magistrate's decision, (2) adopt, modify, or reject the magistrate's decision, and (3) enter a judgment that determines all the claims for relief in the action or determine that there is no just reason for delay. Civ. R. 53(d)(4)(B)(D) and (E); R.C. 2305.02; Civ. R. 54. See Yantek v. Coach Builders Ltd., Hamilton App. No. C-060601, 2007-Ohio-5126; In re: Zinni, Cuyahoga App. No. 89599, 2008-Ohio-581.
{¶ 4} In the five cases cited above, the judgment entry appealed from states:
{¶ 5} "The objections to the magistrate's decision are overruled, the court adopts the magistrate's decision attached hereto and incorporated herein. Decree of foreclosure for Plymouth Park Tax Services, LLC. final. Pursuant to Civ. R. 54(B) the court finds there is no just cause for delay."
{¶ 6} While certainly minimal in its wording, I find the court's entry to constitute a final appealable order sufficient to invoke the jurisdiction of this court. I would dismiss the four cases with deficient judgment entries and allow the consolidated appeal of the five remaining cases to go forward for a decision on the merits.