Opinion
Appellate Case No. 27266
12-20-2016
DWIGHT D. BRANNON, et al. Plaintiffs-Appellees v. DONNA K. PERSONS, et al. Defendants-Appellant
Copies to: Donna Persons 2939 Tubman Avenue Dayton, Ohio 45417 Appellant Dwight Brannon Matthew Schultz 130 W. Second Street, Suite 900 Dayton, Ohio 45402 Appellees Attorneys for Appellees, Dwight Brannon and Matthew Schultz Arthur Phelps 600 Vine Street, Suite 2650 Cincinnati, Ohio 45202 Attorney for Appellees, Central Foot & Ankle Specialists and Leslie Cowden Laurence Lasky 130 W. Second Street, Suite 830 Dayton, Ohio 45402 Attorney for Appellee, Mehr Investments Hon. Dale A. Crawford, Visiting Judge Montgomery County Common Pleas Court 41 N. Perry Street P.O. Box 972 Dayton, Ohio 45422
Trial Court Case Nos. 2015 CV 01473 2015 CV 03889 (Civil Appeal from the Common Pleas Court)
DECISION AND FINAL JUDGMENT ENTRY
PER CURIAM:
{¶ 1} Donna K. Persons appealed the trial court's August 25, 2016 Judgment Entry partially resolving the underlying cases. This is Persons' second appeal; she previously appealed the trial court's May 2, 2016 "Orders on Motions for Summary Judgment" in the same cases. See Montgomery Appellate Case No. 27151. We dismissed that appeal on November 1, 2016 for lack of a final appealable order. Brannon v. Persons, 2d Dist. No. 27151, ___-Ohio-___ ("Brannon I"). The August 25 Judgment Entry appears to be intended to be such a final order.
{¶ 2} However, the trial court entered the August 25 Judgment Entry while the previous appeal was pending. Because it appeared to this court that the trial court lacked jurisdiction to enter the August 25 Judgment Entry, we ordered Persons to show cause why this appeal should not be dismissed.
{¶ 3} Persons filed a response on November 8, 2016. She argues mainly about the appealability of the trial court's May 2, 2016 decision that was the subject of Brannon I but is not at issue here. Persons also makes several arguments concerning the merits of the underlying cases generally and about her entitlement to a stay of the lower court's decisions in particular. She also argues that substantial constitutional rights are affected by the current order. Persons does not address the narrow issue before the court at this time, i.e., whether the trial court had jurisdiction to enter the August 25 Judgment Entry while the previous appeal was pending.
{¶ 4} The Supreme Court of Ohio has held that once an appeal is perfected, "the trial court is divested of jurisdiction over matters that are inconsistent with the reviewing court's jurisdiction to reverse, modify, or affirm the judgment." State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶ 13 (internal citation and quotation omitted). This is so even where the previous appeal was dismissed for lack of a final appealable order. In re C.C., 2d Dist. Montgomery No. 26606, 2015-Ohio-3048, ¶ 5, citing Electronic Classroom at ¶ 15-17; In re G.S., 4th Dist. Pike No. 14CA852, 2015-Ohio-1285, ¶ 9, citing Electronic Classroom at ¶ 16 ("Even when an appeal is taken from an order that the court of appeals ultimately determines is not a final appealable order, the filing of the notice of appeal divests the trial court of jurisdiction to proceed on claims that could be affected by the appeal").
{¶ 5} Here, the Judgment Entry was entered on the same claims that were pending before this court in Brannon I, making the Judgment Entry inconsistent with this court's jurisdiction to reverse, modify, or affirm the earlier judgment on those claims. Brown v. Potter, 2d Dist. Montgomery Nos. 26774, 26775, 2015-Ohio-4289, ¶ 8-9 (trial court lacked jurisdiction to enter judgment resolving the case while appeal from summary judgment decision was pending). We conclude that the trial court lacked jurisdiction to enter the August 25 Judgment Entry while Brannon I was pending.
{¶ 6} An order entered without jurisdiction under these circumstances is not a final appealable order. See In re C.C., 2d Dist. Montgomery No. 26606, 2015-Ohio-3048, ¶ 5, citing State v. Smith, 2d Dist. Greene No. 2010-CA-63, 2011-Ohio-5986, ¶ 9-10 ("Any inconsistent orders issued while this appeal is pending will be a nullity"). Because the August 25 Judgment Entry is not a final order, we must dismiss this appeal. We have jurisdiction to review only final orders or judgments of the lower courts in our district. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.02. We have no jurisdiction to review an order or judgment that is not final, and an appeal therefrom must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). Accordingly, this appeal, Montgomery Appellate Case No. 27266, is DISMISSED.
{¶ 7} After this appeal is dismissed, the trial court may re-enter the Judgment Entry and resolve the underlying cases. Should the trial court issue a final appealable order after this appeal is dismissed, the parties may file a new appeal from that order, and may thereafter request that the previous record(s) be transferred to that appeal.
We observe that the trial court ordered escrowed funds to remain with the clerk "pending further order of the court," which may prevent the finality of claims to such funds. See PNC Bank, N.A. v. Creative Cabinet Sys., Inc., 2d Dist. Darke Nos. 2013-CA-14, 2013-CA-15, 2014-Ohio-3264, ¶ 11 (order not final where "escrow funds have not yet been definitively allocated - the order does not actually award the funds to anyone"). --------
{¶ 8} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Montgomery County Court of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing.
{¶ 9} SO ORDERED.
/s/_________
MIKE FAIN, Judge
/s/_________
JEFFREY M. WELBAUM, Judge
/s/_________
MARIE HOOVER, Judge
(Sitting by assignment of the Chief Justice of the Supreme Court of Ohio) Copies to: Donna Persons
2939 Tubman Avenue
Dayton, Ohio 45417
Appellant Dwight Brannon
Matthew Schultz
130 W. Second Street, Suite 900
Dayton, Ohio 45402
Appellees
Attorneys for Appellees, Dwight Brannon and Matthew Schultz Arthur Phelps
600 Vine Street, Suite 2650
Cincinnati, Ohio 45202
Attorney for Appellees, Central Foot & Ankle Specialists and Leslie Cowden Laurence Lasky
130 W. Second Street, Suite 830
Dayton, Ohio 45402
Attorney for Appellee, Mehr Investments Hon. Dale A. Crawford, Visiting Judge
Montgomery County Common Pleas Court
41 N. Perry Street
P.O. Box 972
Dayton, Ohio 45422 CA3/KY