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Lloyd v. Thornsbery

COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
Jun 30, 2017
2017 Ohio 5654 (Ohio Ct. App. 2017)

Opinion

CASE NO. 2017-P-0016

06-30-2017

SUSAN LLOYD, Plaintiff-Appellant, v. JOSHUA THORNSBERY, et al., Defendant-Appellee.

Bradley Hull, IV, 3681 South Green Road, Suite 208, Beachwood, OH 44122 (For Plaintiff-Appellant). Mark J. Hanna, P.O. Box 301, Kent, OH 44240 (For Defendant-Appellee).


MEMORANDUM OPINION

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2016 CV 00230. Judgment: Appeal dismissed. Bradley Hull, IV, 3681 South Green Road, Suite 208, Beachwood, OH 44122 (For Plaintiff-Appellant). Mark J. Hanna, P.O. Box 301, Kent, OH 44240 (For Defendant-Appellee). COLLEEN MARY O'TOOLE, J.

{¶1} On April 21, 2017, appellant, Susan Lloyd, filed a notice of appeal from an entry of the Portage County Court of Common Pleas.

{¶2} The record reveals that appellant filed her original 8-count complaint on March 16, 2016, against appellee, Joshua Thornsberry, and C and N Forestry. Appellee filed a two-count counterclaim against appellant. On March 3, 2017, appellant filed an amended complaint and added several additional defendants. On March 27, 2017, appellee filed a motion for a definite statement and/or motion for separate claims.

{¶3} In a magistrate's order dated March 31, 2017, the magistrate granted appellee's motion for definite statement and/or motion for separate claims, and ordered appellant to file her second amended complaint within 21 days. It is from that order/decision that appellant filed the instant appeal.

{¶4} Initially, we must determine whether there is a final appealable order since this court may entertain only those appeals from final judgments or orders. Noble v. Colwell, 44 Ohio St.3d 92, 96 (1989). Under Section 3(B)(2), Article IV of the Ohio Constitution, a judgment of a trial court can be immediately reviewed by an appellate court only if it constitutes a "final order" in the action. Germ v. Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶ 3. If a lower court's order is not final, then an appellate court does not have jurisdiction to review the matter, and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20 (1989).

{¶5} R.C. 2505.02(B) defines a "final order" and sets forth seven categories of appealable judgment, and if the judgment of the trial court satisfies any of them, it will be deemed a "final order" and can be immediately appealed and reviewed by a court of appeals. In the case at hand, the March 31, 2017 order does not fit within any of the categories for being a final order pursuant to R.C. 2505.02(B) and did not dispose of all the claims.

{¶6} "* * * [A] magistrate may enter orders without judicial approval if necessary to regulate the proceedings and if not dispositive of a claim or defense of a party." See Civ.R. 53(D)(2)(a)(i). Furthermore, this court has stated that magistrate orders require trial court approval if they dispose of a party's claim. In the Matter of Dougherty, 11th Dist. Ashtabula No. 2013-A-0023, 2013-Ohio-2841, ¶ 4.

{¶7} This court has also held that there is no final judgment where the trial court fails to both adopt the magistrate's decision and enter judgment stating the relief to be afforded because "orders are not court orders unless certain formalities are met." Id. at ¶ 5, citing Wheeler v. Tubbs, 11th Dist. Lake No. 2008-L-159, 2008-Ohio-6411. Only judges, not magistrates, may terminate claims or actions by entering judgment. Id.

{¶8} Here, the trial court failed to enter judgment stating the relief to be afforded. Therefore, at this point, there is no entry issued by the trial court that fits within any of the categories of R.C. 2505.02. The March 31, 2017 magistrate's order is not a final appealable order, and this court does not have jurisdiction to hear this appeal. Since the magistrate's order has not yet received "judicial approval" pursuant Civ.R. 53(D)(2)(a)(i), it remains an interlocutory order and may be reconsidered upon the court's own motion or that of a party. Nothing is preventing appellant from obtaining effective relief through an appeal once the trial court has entered a final judgment in the action.

{¶9} Based upon the foregoing analysis, the judgment of the trial court is not a final appealable order. Accordingly, the instant appeal is dismissed, sua sponte, for lack of jurisdiction.

{¶10} Appeal dismissed. CYNTHIA WESTCOTT RICE, P.J., TIMOTHY P. CANNON, J., concur.


Summaries of

Lloyd v. Thornsbery

COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
Jun 30, 2017
2017 Ohio 5654 (Ohio Ct. App. 2017)
Case details for

Lloyd v. Thornsbery

Case Details

Full title:SUSAN LLOYD, Plaintiff-Appellant, v. JOSHUA THORNSBERY, et al.…

Court:COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO

Date published: Jun 30, 2017

Citations

2017 Ohio 5654 (Ohio Ct. App. 2017)