CHILDREN‘S HOSPITAL v. WILLIAM PALUCH
C.A. No. 26189
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
September 12, 2012
[Cite as Children‘s Hosp. v. Paluch, 2012-Ohio-4137.]
APPEAL FROM JUDGMENT ENTERED IN THE BARBERTON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 10 CVF 1549
BELFANCE, Judge.
{¶1} Defendant-Appellant William Paluch has attempted to appeal from decisions of the Barberton Municipal Court. For the reasons set forth below, we vacate certain orders of the trial court and dismiss this appeal.
I.
{¶2} On July 2, 2010, Plaintiff-Appellee Children‘s Hospital Medical Center (“Akron Children‘s Hospital“) filed a complaint to collect $512.80 plus interest for medical services it allegedly provided to Mr. Paluch‘s children, which he had refused to pay. Mr. Paluch answered denying the allegations.
{¶3} Subsequently, Akron Children‘s Hospital moved for summary judgment. Despite granting Mr. Paluch a 60-day extension of time to respond to Akron Children‘s Hospital‘s motion for summary judgment, on September 27, 2010, the trial court granted Akron Children‘s Hospital‘s motion for summary judgment prior to the expiration of that extended deadline.
{¶4} On November 23, 2010, after seeking leave, Akron Children‘s Hospital filed an amended complaint asserting the medical services were provided to Mr. Paluch as opposed to his children. Mr. Paluch filed an answer denying the allegations. Again after seeking and receiving leave, Akron Children‘s Hospital filed another motion for summary judgment. Mr. Paluch responded in opposition. A hearing was scheduled for September 14, 2011. On September 16, 2011, the trial court vacated the original grant of summary judgment. In the same entry, it entered summary judgment in favor of Akron Children‘s Hospital on its second motion for summary judgment.
{¶5} Thereafter, Mr. Paluch filed a motion to vacate the second grant of summary judgment and a separate motion seeking findings of fact and conclusions of law. The trial court denied Mr. Paluch‘s motion to vacate on October 7, 2011, and his motion for findings of fact and conclusions of law on October 26, 2011. Mr. Paluch filed a notice of appeal on November 22, 2011.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY FAILING TO CONSIDER THE WEIGHT OF THE EVIDENCE AS REFLECTED IN THE RECORD IN DEFENDANT-APPELLANT‘S MOTION IN OPPOSITION TO PLAINTIFF‘S MOTION FOR SUMMARY JUDGMENT.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY FAILING TO PROVIDE A FINDING OF FACTS AND CONCLUSIONS OF LAW BY SUMMARILY DENYING DEFENDANT-APPELLANT‘S MOTION FOR A FINDING OF FACTS AND CONCLUSIONS OF LAW.
{¶6} Mr. Paluch challenges the trial court‘s grant of summary judgment to Akron Children‘s hospital in his first assignment of error and challenges the trial court‘s denial of his motion for findings of fact and conclusions of law in his second assignment of error. For reasons discussed below, we do not reach the merits of his arguments.
{¶7} This Court is required to raise, sua sponte, issues involving its jurisdiction. Whitaker-Merrell Co. v. Geupel Constr. Co., 29 Ohio St.2d 184, 186 (1972). “Even if a trial court‘s journal entry is a judgment or final order, it is not appealable if it does not comply with the rules prescribed by the Ohio Supreme Court regarding the timing of appeals.” Zaffer v. Zaffer, 9th Dist. No. 10CA009884, 2011-Ohio-3625, ¶ 3.
{¶8}
[a] party shall file the notice of appeal required by
App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period inRule 58(B) of the Ohio Rules of Civil Procedure .
{¶9} ”
Civ.R. 58(B) requires the court to endorse on its judgment a direction to the clerk to serve upon all parties * * * notice of the judgment and its date of entry upon the journal. The clerk must then serve the parties within three days of entering judgment upon the journal. The thirty-day time limit for filing the notice of appeal does not begin to run until the later of (1) entry of the judgment or order appealed if the notice mandated byCiv.R. 58(B) is served within three days of the entry of the judgment; or (2) service of the notice of judgment and its date of entry if service is not made on the party within the three-day period inCiv.R. 58(B) .
(Internal quotations and citation omitted.) Id.
{¶10} Mr. Paluch‘s appeal raises arguments concerning the entry granting summary judgment and vacating the prior entry of summary judgment filed on September 16, 2011, and
{¶11} Nonetheless, there are procedural issues that prevent us from addressing the merits of Mr. Paluch‘s appeal because a portion of the September 2011 entry and the October 2011 entries are nullities. The trial court originally granted summary judgment in favor of Akron Children‘s Hospital based upon its first motion for summary judgment on September 27, 2010. That entry was a final judgment. “This Court has consistently treated actions taken by the trial court subsequent to the entry of a final judgment that are not within the scope of the Ohio Rules of Civil Procedure as void.” Allstate Ins. Co. v. Witta, 9th Dist. No. 25738, 2011-Ohio-6068, ¶ 9.
{¶12} During the year prior to ruling on Mr. Paluch‘s motion to vacate the September 2010 judgment, the trial court implicitly granted Akron Children‘s Hospital‘s motion for leave to file an amended complaint by granting its motion for leave to file a motion for summary judgment on the amended complaint. There is no authority which allows an amended complaint or a motion for summary judgment on that amended complaint to be filed when there is a final judgment still in place. Because the matter was subject to a final judgment, the trial court did not
{¶13} As all of the arguments Mr. Paluch raises on appeal assert error in rulings which are void, we are without authority to rule on them. Accordingly, we vacate the portion of the
III.
{¶14} Because the portion of the September 16, 2011 entry that granted Akron Children‘s Hospital‘s second motion for summary judgment and any entries that flowed from it are void, we vacate those entries and dismiss the appeal.
Judgment vacated, and appeal dismissed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Barberton Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
CHILDREN‘S HOSPITAL v. WILLIAM PALUCH
C.A. No. 26189
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
CONCURRING IN PART AND DISSENTING IN PART.
{¶15} I concur in the majority‘s conclusion that the portion of the September 16, 2011 entry that granted the hospital‘s second motion for summary judgment is void and must be vacated. The trial court lacked jurisdiction to address any substantive issues in the case beyond Mr. Paluch‘s motion to vacate pursuant to
{¶16} I dissent from the majority‘s conclusion that this Court must dismiss Mr. Paluch‘s appeal on the basis that we are without authority to rule on the trial court‘s void orders. This Court has the authority to conclude that a trial court order is void for lack of jurisdiction. Based upon that conclusion, the proper disposition for this Court is to vacate the trial court‘s order or reverse and remand with instructions for the trial court to vacate its void order. See, e.g., Homeside Lending, Inc. v. Crise, 9th Dist. No. 03CA008240, 2003-Ohio-5776, ¶ 4. By
CHILDREN‘S HOSPITAL v. WILLIAM PALUCH
C.A. No. 26189
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
DICKINSON, J.
CONCURRING IN PART, AND DISSENTING IN PART.
INTRODUCTION
{¶17} I would dismiss this attempted appeal because this Court does not have jurisdiction to hear it. I write separately to clarify my disagreement with the lead opinion‘s analysis. First, I disagree with the lead opinion‘s analysis of the September 16, 2011, entry because no part of that entry is void and the time for appealing it was not tolled. Second, I believe that a trial court satisfies its duty under
BACKGROUND
{¶18} Akron Children‘s Hospital sued William Paluch over a bill for medical services that the hospital alleged had been rendered to his “child(ren).” Mr. Paluch, acting pro se, denied the allegations and sought an extension of “no less than 60 days from August 20, 2010,” to oppose the hospital‘s motion for summary judgment. The trial court granted the extension on August 23, 2010, but then granted the hospital‘s summary judgment motion on September 27, 2010, before Mr. Paluch had responded. The court‘s September 27, 2010, judgment lacks any direction to the clerk to serve notice on the parties in accordance with
{¶19} The trial court‘s docket reflects that, on September 27, 2010, “Plaintiff‘s motion for summary judgment [was] granted[.]” It also reflects that, on that same date, despite the trial court‘s failure to instruct the clerk to serve a
{¶20} Seven days after summary judgment was entered against him, Mr. Paluch moved the trial court to vacate that judgment. The trial court never ruled on that motion. Instead, the hospital sought leave to amend its complaint to allege that the services it rendered were to Mr. Paluch rather than to one or more of his children. Although there is no evidence in the record that the trial court ever granted the hospital leave to do so, the hospital filed an amended complaint in November 2010. The trial court seems to have permitted the hospital to re-litigate the case from that point, including granting leave for a second motion for summary judgment.
{¶21} On September 16, 2011, the trial court purported to vacate its original entry of summary judgment in favor of the hospital and simultaneously re-enter summary judgment for the hospital based on the amended complaint and the second motion for summary judgment. The trial court made no mention of ruling on any other pending motions at that time. After writing that it vacated its prior summary judgment and noting that Mr. Paluch had failed to appear for the hearing on the second motion for summary judgment, the trial court purported to re-enter summary judgment in favor of the hospital. Mr. Paluch has attempted to appeal, challenging the trial court‘s September 16, 2011, order granting the second motion for summary judgment and its subsequent denial of his motion for findings of fact and conclusions of law.
FINAL JUDGMENT: SEPTEMBER 27, 2010
{¶22} The trial court‘s entry of September 27, 2010, granted summary judgment to the hospital. It completely disposed of the only claim in the complaint in favor of the only plaintiff and against the only defendant, making that entry immediately appealable. See
{¶23} A trial court may also substantively modify its own grant of summary judgment via a party‘s motion for relief from judgment under
THE TRIAL COURT DID NOT GRANT A CIVIL RULE 60(B) MOTION
{¶24} Even reading Mr. Paluch‘s motion to vacate broadly in deference to his status as a pro se litigant, I do not agree that his request to the court to vacate the first summary judgment order can be reasonably construed as a motion for relief from judgment under
{¶25} In the motion, Mr. Paluch did not cite
{¶26} Further, I do not see any indication in the record that the trial court construed the motion as one seeking relief from judgment under
JURISDICTION OF ENTRIES MR. PALUCH ATTEMPTED TO APPEAL
{¶27} According to his assignments of error, Mr. Paluch has attempted to appeal the September 16, 2011, re-entry of summary judgment and the trial court‘s October 26, 2011, denial of his motion for findings of fact and conclusions of law. He filed his notice of appeal on November 22, 2011. The lead opinion concludes that the September 16, 2011, entry of summary judgment is void because it was based on an amended complaint and second motion for summary judgment that “were not properly before the trial court” because they were filed after the trial court‘s initial grant of summary judgment and before it purported to vacate that judgment. This seems to be based on the idea that the trial court lost subject-matter jurisdiction when it entered summary judgment in September 2010. In support of the proposition that the trial court‘s second entry of summary judgment is void, as opposed to voidable as trial court error, the lead opinion cites a Supreme Court case about motions for reconsideration after final judgment and a 2011 case from this Court in which I concurred. See Pitts v. Ohio Dep‘t of Transp., 67 Ohio St. 2d 378, 381-82 n.2 (1981); Allstate Ins. Co. v. Witta, 9th Dist. No. 25738, 2011-Ohio-6068, ¶ 9. To the extent that the lead opinion‘s citation to Pitts is intended to imply that anything filed by parties after final judgment that is outside the scope of the Civil Rules must be construed as a motion for reconsideration and rendered a nullity, I disagree. I believe that Pitts is properly limited to holding that a motion for reconsideration of a final judgment in a trial court is a nullity as are all judgments or final orders flowing from it. Pitts, 67 Ohio St. 2d at 379.
{¶28} In the absence of a trial, the Ohio Rules of Civil Procedure do not provide a mechanism for amending a complaint after final judgment has been rendered.
{¶29} The Ohio Supreme Court has explained that a judgment is not void if the court had both subject-matter jurisdiction and personal jurisdiction to enter it. Pratts v. Hurley, 102 Ohio St. 3d 81, 2004-Ohio-1980, ¶ 12. “Once a tribunal has jurisdiction over both the subject matter of an action and the parties to it, ‘... the right to hear and determine is perfect; and the decision of every question thereafter arising is but the exercise of the jurisdiction thus conferred . . . .‘” Id. at ¶ 12 (quoting State ex rel. Pizza v. Rayford, 62 Ohio St. 3d 382, 384 (1992)). Although a judgment rendered without personal jurisdiction is also void, unlike subject-matter jurisdiction, an objection to the lack of personal jurisdiction may be waived. State ex rel. DeWine v. 9150 Group L.P., 9th Dist. No. 25939, 2012-Ohio-3339, ¶ 6; State ex rel. Bond v. Velotta Co., 91 Ohio St. 3d 418, 419 (2001) (providing that subject-matter jurisdiction may not be waived). Thus, a party may challenge a final judgment at any time as void for lack of personal jurisdiction only if he has not made an appearance in the matter. DeWine, 2012-Ohio-3339, at ¶ 7. Otherwise, “[i]t is only when the trial court lacks subject matter jurisdiction that its judgment is void; lack of jurisdiction over the particular case merely renders the judgment voidable.” Pratts, 2004-Ohio-1980, at ¶ 12 (quoting State v. Parker, 95 Ohio St. 3d 524, 2002-Ohio-2833, ¶ 22 (Cook, J., dissenting)).
{¶30} “Subject-matter jurisdiction focuses on the court as a forum and on the case as one of a class of cases, not on the particular facts of a case or the particular tribunal that hears the case.” State v. Swiger, 125 Ohio App. 3d 456, 462 (1998), abrogated on other grounds by State v. Hutton, 100 Ohio St. 3d 176, 2003-Ohio-5607, ¶ 41-42. “Because subject matter jurisdiction
{¶31} “The third category of jurisdiction [i.e., jurisdiction over the particular case] encompasses the trial court‘s authority to determine a specific case within that class of cases that is within its subject matter jurisdiction.” Pratts v. Hurley, 102 Ohio St. 3d 81, 2004-Ohio-1980, ¶ 12 (quoting State v. Parker, 95 Ohio St. 3d 524, 2002-Ohio-2833, ¶ 22 (Cook, J., dissenting)). Jurisdiction of the particular case has also been referred to as “the ‘exercise’ of jurisdiction.” State v. Wilfong, 2d Dist. No. 2000-CA-75, 2001 WL 256326, *3 (Mar. 16, 2001). “If a trial court improperly exercised its jurisdiction, any defects in judgment would be rendered voidable, not void.” Id.; Pratts, 2004-Ohio-1980, at ¶ 12 (quoting Parker, 2002-Ohio-2833, at ¶ 22 (Cook, J., dissenting)). “[If] jurisdiction has once attached, mere errors or irregularities in the proceedings, however grave, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, will not render the judgment void . . . . Jurisdiction to make a determination is not dependent on the correctness of the determination made.” Wilfong, 2001 WL 256326, at *4 (quoting In the Matter of Waite, 188 Mich. App. 189, 200 (1991)). As a municipal court, the trial court in this matter had subject-matter jurisdiction over this breach of contract claim and, for the reasons explained above, contrary to this Court‘s holding in Witta, the municipal court cannot “lose” subject-matter jurisdiction by entering final judgment. See
CIVIL RULE 58(B) AND APPELLATE RULE 4(A)
{¶32} I disagree with the conclusion of the lead opinion regarding
{¶33} The lead opinion‘s analysis turns on whether the trial court satisfied its duty under
{¶34}
{¶35} Under
{¶36}
{¶37} That interpretation comports with the Ohio Supreme Court‘s reading of the two rules. The Supreme Court has held that, even in the absence of any indication that the clerk of court served notice of the judgment on the parties, the “defect does not toll the running of the time for appeal . . . unless no service is effected within three days.” State ex rel. Hughes v. Celeste, 67 Ohio St. 3d 429, 431 (1993). In Hughes, the record showed that the entry was journalized, but did not include any indication that the clerk had served notice on the parties. Apparently, the clerk did not serve notice of the peremptory writ until the court ordered it to do so seven months after the judgment had been journalized. Notwithstanding the lack of service by the clerk, the Supreme Court held that the Governor of Ohio was bound by the trial court‘s peremptory writ because he failed to timely appeal. Id. The Court based its decision on
JURISDICTION OF ENTRY OF SEPTEMBER 16, 2011
{¶38} Mr. Paluch‘s first assignment of error relates to the trial court‘s second entry of summary judgment on September 16, 2011. I do not agree with the conclusion that the appeal time from the September 2011 entry is tolled because the trial court failed to properly direct the clerk of court to serve the parties with notice of it. As discussed above,
{¶39} Even if the trial court‘s failure to direct the clerk to serve notice of the judgment could toll the appeal time, I would hold that the notation the trial court put on the September 2011 entry was sufficient under
{¶40} I would hold that, because service was completed within the three-day period provided by
JURISDICTION OF ENTRY OF OCTOBER 26, 2011
{¶41} Mr. Paluch‘s second assignment of error relates to the trial court‘s denial of the motion for findings of fact and conclusions of law that he filed following the second entry of summary judgment. There are some exceptions to the thirty-day rule for filing a notice of appeal. Under
{¶42} “Although this Court has held that pro se litigants ‘should be granted reasonable leeway’ in the construction of their pleadings and motions in order to ensure that courts address issues on their merits if possible, ‘a pro se litigant is presumed to have knowledge of the law and correct legal procedures so that he remains subject to the same rules and procedures to which represented litigants are bound.‘” Nagel v. Nagel, 9th Dist. No. 09CA009704, 2010-Ohio-3942, at ¶ 38 (quoting Smith v. Downs, 9th Dist. No. 25021, 2010-Ohio-2571, at ¶ 7). Mr. Paluch moved the trial court for findings of fact and conclusions of law on October 14, 2011. That motion was neither “timely” nor “appropriate” as required by
{¶43} Although Mr. Paluch filed his notice of appeal within 30 days of the trial court‘s entry denying his motion for findings of fact and conclusions of law, no appeal lies from that order. Mr. Paluch cannot separately appeal the trial court‘s denial of the motion for findings of fact and conclusions of law because the denial of such a motion, deemed “unnecessary” by the Civil Rules, did not affect a substantial right and was not, therefore, a “final order” under
CONCLUSION
{¶44} I would conclude that this Court lacks jurisdiction to consider the arguments made in regard to the trial court‘s order of September 16, 2011, because it was not timely appealed. The time for appeal was not tolled, as the lead opinion has concluded, due to a faulty notation from the court to the clerk to serve notice of the judgment. Further, no part of the September 2011 entry was a nullity because the trial court never ruled on the motion for reconsideration that Mr. Paluch filed after final judgment and the trial court never “lost” subject-matter jurisdiction to hear this contract claim. We have no jurisdiction to consider the October 26, 2011, entry because, although the notice of appeal was timely filed in regard to that entry, the entry is not appealable because it did not affect a substantial right. Therefore, I would dismiss the attempted appeal for lack of jurisdiction.
WILLIAM PALUCH, pro se, Appellant.
DAVID A. SED, Attorney at Law, for Appellee.