736 N.E.2d 101 | Ohio Ct. App. | 2000
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *213
On July 6, 1998, a magistrate's decision with findings of fact and conclusions of law was journalized in the court of common pleas. That decision found that the covenant not to compete in Appellee Dennis Harkai's employment agreement with Appellant was unreasonable and should be modified to restrict competition for eighteen months, a shorter period of time than that stated in the agreement. The magistrate also directed Harkai's counsel to prepare a journal entry. The parties filed objections and on September 23, 1998, the trial court journalized an order, which it captioned "Judgment Entry" and which affirmed the magistrate's decision.
This court does not have jurisdiction to review this case because the trial court has failed to enter a "judgment or final order" that disposes of the issues before the court. Section
Our jurisdictional analysis in this case begins with an examination of the definition of "judgments or final orders." R.C.
R.C.
For an order to determine the action and prevent a judgment for the party appealing, it must dispose of the whole merits of the cause or some separate and distinct branch thereof and leave nothing for the determination of the court.
Hamilton Cty. Bd. of Mental Retardation Developmental Disabilities v. Professionals Guild of Ohio (1989),
46 Ohio St. 3d 147 ,153 .
The courts have similarly described a "judgment": "A judgment is the final determination of a court of competent jurisdiction upon matters submitted to it." State ex rel. Curranv. Brookes (1943),
A final judgment is one which operates to divest some right in such a manner as to put it beyond the power of the court making the order to place the parties in their original condition after the expiration of the term; that is, it must put the case out of court and must be final in all matters within the pleadings.
In Re *215 Estate of Castrovince (Aug. 16, 1996), Portage App. No. 96-P-0175, 1996 Ohio App. Lexis 6226, unreported at *6, citing In Re: Thomas' Will (1948),
84 Ohio App. 30 . Regardless of whether an order is characterized as a "final order" or "judgment," the result is the same: if the order is final, the timely filing of a notice of appeal will divest the trial court of jurisdiction to alter the order.2 See, e.g., Yee v. Erie Cty. Sheriff's Dept. (1990),51 Ohio St. 3d 43 , 44; In re Kurtzhalz (1943),141 Ohio St. 432 , paragraph two of the syllabus.
That is not to say that a trial court cannot change its judgment. All judgments are potentially voidable, either by the trial court itself or by an appellate court. Eisenberg v. Peyton
(1978),
The foregoing definitions stress that the primary function of a final order or judgment is the termination of a case or controversy that the parties have submitted to the trial court for resolution. This court must look to the language employed in the purported judgment entry to ascertain whether the trial court's entry accomplishes that result. See Peters v. Arbaugh (1976),
In Walker, this court explained:
[T]he content of the judgment must be definite enough to be susceptible to further enforcement and provide sufficient information to enable the parties to understand the outcome of the case. If the judgment fails to speak to an area which was disputed, uses ambiguous or confusing language, or is otherwise indefinite, the parties and subsequent courts will be unable to determine how the parties' rights and obligations were fixed by the trial court.
Walker, supra, at 4. The characteristics of a judgment were similarly described in In re Michael (1991),
71 Ohio App. 3d 727 , quoting Cox v. Cox (Mar. 15, 1991), Trumbull App. No. 90-T-4396, unreported, (Ford, J., concurring, at 3) as follows:"It is fundamental that the trial court employ diction which should include * * * operative, action-like and conclusionary verbiage * * *. Obviously, it is not necessary for such directive to be encyclopedic in character, but it should contain clear language to provide basic notice of rights, duties, and obligations."
If the trial court intends to terminate the dispute between the parties, therefore, it must issue an entry that includes the "prescription for action" in the case. Walker, supra, at 4.
Moreover, a "judgment" must be distinguished from a "decision." See Sup.R. 7(A); Civ.R. 58(A); William Cherry Trustv. Hoffman (1985),
Having discussed the "judgment or final order" element necessary to our jurisdiction under the Ohio Constitution, we now discuss the limitation on our jurisdiction to judgments or final orders of "courts of record." An order is not an *217 order of a court of record unless certain formalities have been met. For example, a purported civil judgment must comply with Civ.R. 58(A), which states:
* * * upon a general verdict of a jury, upon a decision announced, or upon the determination of a periodic payment plan, the court shall promptly cause the judgment to be prepared and, the court having signed it, the clerk shall thereupon enter it upon the journal. A judgment is effective only when entered by the clerk upon the journal.
Only through compliance with Civ.R. 58(A) can an appellate court be certain that the order reflects judicial action. Peters v. Arbaugh,
50 Ohio App.2d at 36 (Whiteside, J., concurring). Moreover, compliance with Civ.R. 58(A) also ensures that the matter has been terminated. "[A]bsent such entry, a `judgment' that is merely pronounced is inchoate only. `Though possessing the character of potentiality, it lacks the character of actuality, and hence is without probative force.'" Horner v. Toledo Hosp. (1993),94 Ohio App. 3d 282 ,289 , quoting Coe v. Erb (1898),59 Ohio St. 259 ,263 .
The procedure prescribed by Civ.R. 53 fits neatly into this analysis. That rule permits the use of magistrates to assist courts in their judicial functions:
It is the primary duty of the court, and not the referee, to act as a judicial officer. Indeed, the court must approve the referee's report and enter it upon its own record in order for that report to have any validity or binding effect. Civ.R. 53(E)(5). As was stated in the 1970 Staff Note to Civ.R. 53:
"* * * Rule 53 contemplates that a referee shall aid the court in the expedition of the court's business and not be a substitute for the functions of the court." (Emphasis added.)
Normandy Place Assoc. v. Beyer (1982),
Civ.R. 53 places upon the court the ultimate authority and responsibility over the referee's findings and rulings. The court must undertake an independent review of the referee's report to determine any errors. * * * The findings of fact, conclusions of law, and other rulings of a referee before and during trial are all subject to the independent review of the trial judge. Thus, a referee's oversight of an issue or issues, even an entire trial, is not a substitute for the judicial functions but only an aid to them.
Hartt v. Munobe (1993),
Whereas Civ.R. 53(C) permits magistrates to enter certain interlocutory orders that "regulate [the] proceedings," Civ.R. 53(E) permits a magistrate only to "prepare, sign, and file a magistrate's decision," not a "judgment." See Barker v. Barker
(1997),
Once an appellate court has determined that an order is "final," it must also determine whether it is "appealable." "[A]ll final orders are not ipso facto appealable orders." TheCincinnati Gas Elec. Co.,
For example, App.R. 4 governs when a notice of appeal may be filed. App.R. 4(B)(5) provides that an order filed under Civ.R. 54(B) shall be appealed within thirty days from entry of the order. See, also, App.R. 4(A). Civ.R. 54(B) provides that a final order that disposes of fewer than all of the claims against all of the parties is not appealable unless the trial court certifies that there is no just reason for delay. Unless the trial court so certifies, a court of appeals cannot yet exercise jurisdiction despite the finality of the order. See Chef Italiano Corp. v. KentState Univ. (1989),
The foregoing requirements are essential to this court's jurisdiction. Before this court can exercise its appellate jurisdiction to review any case, we must find that the order being appealed is: (1) "final" pursuant to R.C.
Although our authority to exercise jurisdiction depends upon a determination that a purported judgment meets the foregoing requirements, it is not always clear whether a particular order actually does so. The nature of the case and the type of relief granted necessarily dictates what language must be used to terminate the claim and render the order appealable. Walker,supra, at 4. Every case must be determined on its own facts.Millies v. Millies (1976),
In cases referred to a magistrate, the determination of appellate court jurisdiction is complicated by the trial court's use of form orders and boilerplate language that is intended to adopt a magistrate's decision and enter final judgment upon it simultaneously. In that situation, the appellate courts must *220
differentiate between those requirements that affect appellate court jurisdiction, that is, entry of a judgment setting forth relief, and those that impose procedural requirements on the trial court, such as adoption of a magistrate's decision. See, generally, Eisenberg v. Peyton,
We turn now to the order entered by the trial court in this case. In its entirety, the order states:
This matter came on for hearing on the 28th day of August, 1998, upon the Defendant's Objections to the Magistrate's decision filed July 6, 1998, the Supplement to Defendant's Objections, and the Plaintiff's Response thereto.
Upon due consideration, the decision of the Magistrate is hereby AFFIRMED.
SO ORDERED, ADJUDGED AND DECREED.
The trial court most likely intended that this entry constitute the "judgment" in the case. Indeed, it captioned the order "Judgment Entry." It is the substance of the entry, however, that must control. See St. Vincent Charity Hosp.,
33 Ohio St.3d at 123 .
As we stated in Walker, supra, at 6:
What the referee does is not a judicial act. Therefore, can the judge by "incorporating the referee's report" or by "adopting the referee's report" raise the report to the status of a judicial act? The answer must be no. Aside from the fact that to do so would be the equivalent of allowing the referee to perform a judicial act, such incorporation or adoption of a judgment fails to meet the requirement of the certainty of judgments since it fails to disclose how the matter was resolved. * * **221
Other courts have agreed that a trial court order stating only that it is adopting a magistrate's decision does not disclose how the trial court is resolving the issues submitted to it, and, therefore, is not final. See, e.g., In re Zakov (1995),107 Ohio App. 3d 716 ,717 ; Wellborn v. K-Beck Furn. Mart, Inc.,54 Ohio App.2d at 66 ; Reiter v. Reiter (May 11, 1999), Hancock App. No. 5-98-32, 1999 Ohio App. Lexis 2454, unreported; In the Matter of Elliott (Mar. 5, 1998), Ross App. No. 97 CA 2313, 1998 Ohio App. Lexis 879, unreported; Pace v. Pace (Oct. 8, 1996), Gallia App. No. 95 CA 17, 1996 Ohio App. Lexis 2750, unreported.9
In the instant case, the only effect of the purported judgment entry is to indicate that the trial court approved of the magistrate's decision. The trial court's statement that it affirms the magistrate's decision is not a statement of the relief ordered the parties to remedy the dispute between them. Accordingly, this entry is not a judgment or final order from which an appeal might lie. Nor is this a post-judgment entry as contemplated by Civ.R. 53(E)(4)(c). As noted above, after a magistrate's decision has been filed and served upon the parties, the trial court need not wait to enter judgment for the time period to pass for filing objections. Civ.R. 53(E)(4)(c). The record in this case does not reveal a prior judgment entry.
At this point, this court feels constrained to note that we have not consistently followed the reasoning set forth herein. Past decisions from this Court have suggested that we do not have jurisdiction when the trial court has not explicitly stated whether it is "adopting, modifying, or vacating" a magistrate's decision or, if a prior judgment has been entered, whether it is "vacating, modifying or adhering to its prior judgment."10
We now retreat from that position.11 Because the trial court's action on the magistrate's decision is not an essential element of a final order or judgment as defined by R.C.
This appeal is dismissed for lack of jurisdiction. Costs to Appellant.
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. App.R. 22(E).
Costs taxed to Appellant.
SLABY, J., CARR, J., CONCUR
[T]he effect of Civ.R. 54(B) is purely procedural. It permits both the separation of claims for purposes of appeal and the early appeal of such claims, * * * but it does not affect either the substantive right to appeal or the merits of the claims. Questions involving the joinder and separation of claims and the timing of appeals are matters of practice and procedure within the rule-making authority of this court under * * * the Ohio Constitution.Id.