589 N.E.2d 407 | Ohio Ct. App. | 1990
On July 12, 1989, appellees Dean Skillman and Astel Smith, partners, filed a landlord's complaint in the Perrysburg Municipal Court. Appellees demanded restitution of the premises, money damages for past rent due, money damages for hold over rent and court costs. On August 9, 1989, the Perrysburg Municipal Court issued a decision and order which stated, in pertinent part:
"WHEREFORE, a writ of restitution shall issue and the second cause is continued for further proceedings. Clerk to notify."
On September 6, 1989, appellants filed a "Motion for use and occupancy bond and stay of execution," which requested that appellants be permitted to pay into the court, each month, their rent money as it came due until an appeal was decided by this court. On September 6, 1989, appellants also filed a notice of appeal from the August 9, 1989 decision and order. On September 8, 1989, the Perrysburg Municipal Court issued an order which stated, in pertinent part:
"It is therefore ORDERED, ADJUDGED AND DECREED that execution of the writ of restitution is hereby stayed pending a determination of Defendants' appeal by the Wood County Court of Appeals." *617
On May 1, 1990, this court issued a decision and journal entry which sua sponte dismissed this appeal on the basis that the lower court's decision was not a final appealable order. Appellants, Michael and Cheryl Browne, filed an application for reconsideration in this court on May 8, 1990.
When a motion for reconsideration is filed in a court of appeals in Ohio, the test to be applied is: "* * * whether the motion calls to the attention of the court an obvious error in its decision, or raises an issue for consideration that was either not considered at all or was not fully considered by the court when it should have been." Columbus v. Hodge (1987),
Appellants assert that the August 9, 1989 judgment entry from the Perrysburg Municipal Court was a final appealable order, because "* * * resolution of the issue of damages would require that the Writ of Restitution be exercised, Appellant's [sic] be dispossessed of the premises and then the determination of damages would proceed to hearing. Thus it is submitted that until the issue of possession is determined by this Court the issue of damages is speculative, and that the Municipal Court's decision of August 9, 1989 is a final Order allowing this court to decide the substance of Appellant's [sic] appeal."
Appellants cited no statutory or case law to support their assertion. However, after conducting our own research, this court concludes that appellants' motion for reconsideration is well taken and must be granted.
R.C.
"An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial."
Pursuant to R.C.
In 1981, the Supreme Court of Ohio set forth a test for determining whether a cause of action is a special proceeding. The specific language used by the Supreme Court of Ohio when announcing the test was as follows:
"* * * [W]hether an order is made in a special proceeding is resolved through a balancing test. This test weighs the harm to the `prompt and orderly disposition of litigation,' and the consequent waste of judicial resources, resulting from the allowance of an appeal, with the need for immediate review because appeal after final judgment is not practicable."Amato v. General Motors Corp. (1981),
The specific issue addressed in Amato was whether a judgment entry approving a class action was a final, appealable order. In considering the issue, the Supreme Court of Ohio stated that certain principles guide the Supreme Court when it is asked to consider whether an action is a special proceeding. The first principle is the reluctance of the court to declare an action a special proceeding, since the declaration of an action as a special proceeding essentially permits an interlocutory appeal.Id. at 257, 21 O.O.3d at 161,
Seven days before the Amato case was decided, the Supreme Court of Ohio decided another case which involved the question of whether Civ.R. 53(E) and 54(B) were applicable to forcible entry and detainer actions. Cuyahoga Metro. Hous. Auth. v.Jackson (1981),
"By similar reasoning, we conclude that Civ.R. 54(B), governing judgments upon multiple claims, is inapplicable to this special proceeding. Commonly, claims to recover possession of real property in forcible entry and detainer are joined with claims for damages for non-payment of rent. Were we to apply Civ.R. 54(B), the judgment appealed from here would be provisional and nonenforceable, *619
since the trial court, in failing to rule on the claim for money damages, did not specify that `no just reason for delay' of appeal existed. Such a situation would utterly destroy the summary nature of forcible entry and detainer proceedings. Therefore, we hold that a judgment entry giving or denying a present right to possession of property, under R.C. Chapter 1923, is appealable even though all the causes of action have not been adjudicated." (Emphasis added.) Id. at 132, 21 O.O.3d at 83,
While the court in Cuyahoga Metro. Housing Auth. never specifically cited R.C.
Accordingly, this appeal is ordered reinstated and shall proceed in accordance with the Appellate Rules of Procedure.
Motion granted.
MELVIN L. RESNICK, J., concurs.
