Weygandt v. PorterfieldWeygandt v. Porterfield
Dated: February 7, 2011
WHITMORE, Judge.
{¶1} Troy Porterfield ordered stone and wood from Jeff Weygandt and paid him a $7000 deposit. When Mr. Weygandt delivered the materials, Mr. Porterfield rejected all of the stone, claiming it was rubble. He rejected most of the wood, claiming it was not the correct grade. Mr. Weygandt denied there was anything wrong with the stone or wood and sued Mr. Porterfield for the balance of the contract. Mr. Porterfield counterclaimed, alleging breach of contract and seeking the return of his deposit. A magistrate determined that Mr. Porterfield rightfully rejected the stone and most of the wood. He concluded, however, that Mr. Porterfield owed Mr. Weygandt for the wood he used. Because the cost of that wood was less than the $7000 deposit, he recommended that Mr. Weygandt return the balance of the deposit to Mr. Porterfield. He also determined that Mr. Weygandt should be responsible for removing the unused stone and wood from Mr. Porterfield‘s property. Mr. Weygandt objected to the magistrate‘s decision. The trial court determined that Mr. Weygandt‘s objections “should be
FINAL APPEALABLE ORDER
{¶2}
{¶3} As in Young, the trial court wrote that Mr. Weygandt‘s objections “should be overruled,” but did not specifically overrule them. The court, therefore, failed to explicitly rule on the objections as required by
{¶4} Regarding the arguments made by the dissent, generally, orders precede judgments and are not immediately appealable because they leave items unresolved and do not
{¶5} The dissent‘s lengthy discussion of the tension between the Ohio Constitution, legislative enactments, and the procedural rules that the Ohio Supreme Court has prescribed, regarding judgments and final orders, is largely academic. Moreover, it is a debate that has already been settled and need not be revisited in the matter before this Court. The Ohio Supreme Court has the authority to interpret the laws of this State. In doing so, the Supreme Court has repeatedly applied
{¶6} This Court held in Harkai v. Scherba Industries, Inc. (2000), 136 Ohio App.3d 211, 219, that:
“Before this [C]ourt can exercise its appellate jurisdiction to review any case, we must find that the order being appealed is (1) ‘final’ pursuant to
R.C. 2505.02 , as further defined by case law; (2) issued by a ‘court of record;’ that is, signed by the court and journalized; and (3) appealable pursuant toR.C. 2505.03 and the Appellate Rules of Procedure.”
{¶7} To say that the Supreme Court has been inconsistent because it has separately analyzed whether an entry was a judgment or final order in certain cases is misleading, as the “analysis” in those cases amounts to nothing more than a blanket statement that the particular case at issue did not involve a judgment. See State ex rel. Eberling v. Nugent (1988), 40 Ohio St.3d 129, 129 (including a single statement that “[c]learly, the denial of a motion to consolidate is not a judgment“); State ex rel. Add Venture, Inc. v. Gillie (1980), 62 Ohio St.2d 164, 165 (including a single statement that “[a]n order of the court of common pleas overruling a motion to vacate a temporary injunction in a suit *** is neither a judgment nor a final order (see
{¶8}
{¶9} The dissent broadly proclaims that the Ohio Rules of Civil Procedure do not affect our jurisdiction. To the contrary, procedural rules define the manner in which one may assert a substantive right and frequently impact jurisdiction. See, e.g., Cuda v. Lorain Cty. Children Servs., 9th Dist. No. 08CA009476, 2009-Ohio-2296, at ¶7 (“Where applicable and necessary, the omission of [Civ.R.] 54(B) language by the trial court in its judgment entry ‘is fatal not only to the order‘s finality, but also this Court‘s jurisdiction.‘“), quoting David Moore Builders, Inc. v. Hudson Village Joint Venture, 9th Dist. No. 21702, 2004-Ohio-1592, at ¶7; State ex rel. Cordray v. Burge, 9th Dist. Nos. 09CA009723 & 09CA009724, 2010-Ohio-3009, at ¶17 (“Because the orders did not comply with
{¶10} In particular, this Court has already concluded that the phrase “should be overruled” does not suffice to actually overrule objections filed with respect to a magistrate‘s decision. Young at ¶10. That conclusion is correct. Quite simply, the phrase “should be” is not definitive. The fact that something should be done does not mean that it has actually been done.
{¶11} It may seem harsh to require trial courts to employ such exact language. Yet, to hold otherwise is to invite judicial guesswork. Neither a party, nor a reviewing court should
“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. *** [A] judgment should include everything necessary to a complete understanding of its effect. Generally, it should be an independent document, which needs no other reference or support.” Walker v. Walker (Aug. 5, 1987), 9th Dist. No. 12978, at *2.
The trial court‘s judgment entry does not dispose of Weygandt‘s objections. It “is otherwise indefinite” and does not fully “determine[] the action.” Id.;
{¶12} In conclusion, this Court must be cautious in deciding to abandon its timely precedent. Absent a compelling reason, we continue to adhere to the precedent of this Court, in which we determined that a trial court‘s failure to explicitly rule upon objections to a magistrate‘s decision and to employ precise language when doing so is a jurisdictional defect. Because the trial court here failed to explicitly rule upon the objections, the court did not enter a judgment and we do not have jurisdiction over the appeal. The attempted appeal is dismissed.
Appeal dismissed.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
BELFANCE, J. CONCURS IN JUDGMENT ONLY, SAYING:
{¶13} A majority of the Court does not agree with the analysis of the dissent. I concur in the judgment only.
DICKINSON, P. J. DISSENTS, SAYING:
INTRODUCTION
{¶14} Getting this Court to consider assignments of error has become like the labor of Sisyphus. A party files a notice of appeal and both parties file briefs, argue, and wait, only to find themselves back in the trial court with the assignments of error unaddressed because of some imagined defect in the entry from which the appeal was taken. In this case, the majority is sending the parties back so the trial judge can tell us what we all know: When he wrote in his
STARE DECISIS
{¶15} Much of this dissent is simply a recognition that the way we discuss appealability has strayed from the constitutional and statutory bases of this Court‘s jurisdiction. The outcome would not have been different in the cases I discuss below in which that straying happened if we had, for example, recognized that judgment and final appealable order are not synonymous. The return to those bases I am suggesting, therefore, would not require overruling those cases and does not implicate stare decisis. As mentioned above, I would overrule two of our prior decisions. Those two decisions, however, satisfy the three-part test adopted by the Ohio Supreme Court in Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849, for when a prior decision may be overruled and doing so would not be an affront to stare decisis.
THIS COURT‘S JURISDICTION
{¶16} Under the Ohio Constitution, Ohio‘s courts of appeals “have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district . . . .”
TIMING OF APPEALS
{¶17} Under
{¶18} Under
DIFFERENCE BETWEEN JUDGMENTS AND FINAL ORDERS
{¶19} Until 1851, there was no intermediate court in Ohio, only common pleas courts and the Ohio Supreme Court. From 1851 to 1913, the Ohio Constitution provided that Ohio‘s courts of appeals, formerly called district or circuit courts, had “such appellate jurisdiction as may be provided by law.”
WHAT IS A JUDGMENT?
{¶20} As noted in the previous paragraph, from 1851 to 1953, the Ohio General Assembly defined a “judgment” as “the final determination of the rights of the parties in action.” Hoffman v. Knollman, 135 Ohio St. 170, 175 (1939) (quoting Ohio Gen. Code § 11582). When it revised the Code in 1953, it incorporated the General Code‘s definition into Section 2323.01 of the Ohio Revised Code. In 1971, the General Assembly repealed Section 2323.01, eliminating the only definition of “judgment” found in the Ohio Revised Code. At the time of the repeal, the General Assembly explained that it had determined that Section 2323.01 and a number of other Code sections conflicted with the Ohio Rules of Civil Procedure, which had taken effect the previous year. 133 Ohio Laws 3017 (1970). Under
{¶21} The only rule that the General Assembly could have thought conflicted with Section 2323.01 is Civil Rule 54, entitled “Judgments; costs.” The title of
{¶22} There are two ways to interpret the word “includes” as it is used in
{¶23} The 1970 Staff Notes to
{¶24} Even though the definition provided in
{¶25} One can not simply use the definition of judgment found in
COMMON LAW DEFINITION OF JUDGMENT
{¶27} The definition of judgment provided by former Section 2323.01 was not very descriptive. It would be helpful then to examine how the term “judgment” was used at common law, to appreciate how it should be interpreted under
{¶28} William Blackstone, in his Commentaries on the Laws of England, described a judgment as “the sentence of the law, pronounced by the court upon the matter contained in the record . . . . in short, [it] is the remedy prescribed by law for the redress of injuries . . . .” 2 William Blackstone, Commentaries, *395-96; see also 1 Henry Campbell Black, A Treatise on the Law of Judgments, § 21 (2d ed. 1902) (describing a final judgment as “such . . . as at once puts an end to the actions by declaring that the plaintiff has or has not entitled himself to recover the remedy for which he sues.“). William Tidd, in his Practice of the Courts of King‘s Bench, described a judgment as “the conclusion of law, upon facts found or admitted by the parties, or upon their default, in the course of the suit.” 2 William Tidd, The Practice of the Courts of King‘s Bench and Common Pleas, 962 (2d Am. ed. 1828). Another contemporary law dictionary used more colorful language: “The opinion of the judges is so called, and [it] is the very voice
{¶29} In his treatise on judgments, Henry Black analyzed the nature of a judgment. 1 Henry Campbell Black, A Treatise on the Law of Judgments, § 1 (2d ed. 1902). He explained: “As in logic, judgment is an affirmation of a relation between a particular predicate and a particular subject, so, in law, it is the affirmation by the law of the legal consequences attending a proved or admitted state of facts. It is not, however, a mere assertion of the rules of law as applied to given conditions, nor of the legal relations of the persons concerned. It is always a declaration that a liability, recognized as within the jural sphere, does or does not exist. An action is instituted for the enforcement of a right or the redress of an injury. Hence a judgment, as the culmination of the action, declares the existence of the right, recognizes the commission of the injury, or negates the allegation of one or the other. But as no right can exist without a correlative duty, nor any invasion of it without corresponding obligation to make amends, the judgment necessarily affirms, or else denies, that such a duty or such a liability rests upon the person against whom the aid of the law is invoked. . . . [A]lthough it is the affirmation of the law, it is necessarily pronounced by the mouth of a court or judge. And the decision of any arbiter, self-constituted or chosen by the litigants, is no judgment. The law speaks only by its appointed organs. It is only when the deliverance comes from a true and competent court that it is entitled to be called a judgment. Finally, it must be responsive to the state of facts laid before the tribunal. It is elementary law that no court can travel outside the controversy presented to it, to
WHAT IS A FINAL ORDER?
{¶30} As previously noted, the Ohio General Assembly long defined a “final order” as “[a]n order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment.” Hoffman v. Knollman, 135 Ohio St. 170, 175 (1939) (quoting Ohio Gen. Code § 12258); Lantsberry v. Tilley Lamp Co., 27 Ohio St. 2d 303, 306 (1971) (“A final order . . . is one disposing of the whole case or some separate and distinct branch thereof.“).
CONFUSION BETWEEN JUDGMENTS AND FINAL ORDERS
{¶31} When the Ohio Supreme Court has been called upon to determine whether a particular trial court entry was reviewable under
{¶32} For example, in Wise v. Gursky, 66 Ohio St. 2d 241 (1981), the Court applied
{¶33} In State ex rel. Batten v. Reece, 70 Ohio St. 2d 246 (1982), the Ohio Supreme Court also suggested that a judgment is only reviewable if it satisfies
{¶34} In General Accident Insurance Co. v. Insurance Co. of North America, 44 Ohio St. 3d 17, 21 (1989), the Ohio Supreme wrote that “[a]n appellate court, when determining whether a judgment is final, must engage in a two-step analysis.” The first step, according to the Supreme Court, is to “determine if the order is final within the requirements of
{¶35} This Court has also failed to recognize the substantive difference between a judgment and a final order in a number of its decisions. E.g., Baker v. Baker, 9th Dist. No. 09CA009603, 2009-Ohio-6906, at ¶5; Scalia v. Aldi Inc., 9th Dist. No. 24395, 2009-Ohio-1335, at ¶6; In re Strickler, 9th Dist. Nos. 08CA009375, 08CA009393, 2008-Ohio-5813, at ¶7; State v. Goodwin, 9th Dist. No. 23337, 2007-Ohio-2343, at ¶13; Konstand v. Barberton, 9th Dist. No. 21651, 2003-Ohio-7187, at ¶4; Harkai v. Scherba Indus. Inc., 136 Ohio App. 3d 211, 214 (2000). The authority this Court cited in several of those cases was Chef Italiano Corp. v. Kent
{¶36} One of the definitions of final order provided in
{¶37} Although the Ohio Supreme Court has, at times, considered whether a judgment was reviewable under
OBJECTIONS TO MAGISTRATE‘S DECISION
{¶38} The evidence in this case was heard by a magistrate, who prepared and filed a “magistrate‘s decision,” as required by
{¶39}
{¶40} As noted previously, the Ohio Supreme Court has authority to prescribe rules regarding the timing of appeals.
{¶41} Although
{¶42} This Court has long followed the rule that, when a trial court fails to explicitly decide a motion before entering judgment, we will assume the motion was denied. State v. Darulis, 9th Dist. No. 19331, 1999 WL 420296 at *2 (June 23, 1999) (failure to rule on motion to dismiss); Ferbstein v. Silver, 9th Dist. No. 18684, 1998 WL 388976 at *3 (July 8, 1998) (failure to rule on motion for leave to file objections to magistrate‘s order); Ogrizek v. Ogrizek, 9th Dist. No. 18074, 1997 WL 270549 at *1 (May 14, 1997) (failure to rule on motion for attorney fees); Ryncarz v. Ryncarz, 9th Dist. No. 17856, 1997 WL 72101 at *4 (Feb. 13, 1997) (failure to rule on motion for contempt). The broad language used in the concurring opinion in In re Strickler would overrule all these cases: “Until resolved, they remain pending for the trial court‘s determination and therefore prevent finality.” In re Strickler, 9th Dist. Nos. 08CA009375, 08CA009393, 2008-Ohio-5813, at ¶17 (Carr, J., concurring) (citing Arnold v. Bible, 5th Dist. No. 03CA000034, 2004-Ohio-4998; Mathers v. Mathers, 11th Dist. No. 91-G-1647, 1992 WL 86564 (Mar. 31, 1992)). The rationale would also appear to mean that a judgment would not be appealable if a judge failed to rule on an evidentiary objection at trial.
{¶43} The concurring opinion in In re Strickler and the cases cited therein mistakenly equate judgments with final orders. In re Strickler, 9th Dist. Nos. 08CA009375, 08CA009393, 2008-Ohio-5813, at ¶16-17 (Carr, J., concurring). As has been explained, there is a distinct difference between the two. The trial court‘s journal entry in this case purports to be a judgment. Under
{¶44} As noted previously, in Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849, the Ohio Supreme Court adopted a three-part test for determining when a court may overrule its own precedent: “A prior decision of [a court] may be overruled where (1) the
REQUIREMENTS OF A JUDGMENT
{¶45} Although former
{¶47} “No particular form of word is usually considered necessary to show the rendition of a judgment.” 1 Henry Campbell Black, A Treatise on the Law of Judgments, § 114 (2d ed. 1902). “[T]he sufficiency of the writing claimed to be a judgment should always be tested by its substance rather than its form.” Id. § 115. “But while this is so, there are certain requisites of a judgment which cannot be dispensed with. In the first place, the entry must purport to be an actual judgment, conveying the sentence of the law, as distinguished from a mere memorandum, note, or recital that a judgment had been or would be rendered.” Id. In addition, “[if] a judgment has to do with specific property, it is essential that the property be designated in the judgment with such a degree of certainty that it can be identified without reasonable opportunity for mistake.” Id. § 117. Furthermore, “[t]he amount of a judgment must be stated in it with certainty and precision. All judgments must be specific and certain; they must determine the rights recovered or the penalties imposed, and be such that the defendant may readily understand and be capable of performing.” Id. § 118. If, however, “the entry of a judgment is so obscure as not to clearly express the exact determination of the court, reference may be had to the pleadings and the other proceedings; and if, with the light thus thrown upon such entry, its obscurity is
{¶48} In Walker v. Walker, 9th Dist. No. 12978, 1987 WL 15591 (Aug. 5, 1987), this Court recognized similar requirements for a judgment. “A judgment . . . has certain formal requirements. . . . It is signed by the judge, filed with clerk and journalized. The body of a judgment does not have a standard content. The nature of the case and the type of relief granted determines the language appropriate to a particular judgment. Although there are no specific language requirements, the 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. Finally, a judgment should include everything necessary to a complete understanding of its effect. Generally, it should be an independent document, which needs no other reference or support. . . . There are certain exceptions to th[at] rule. An example is where there is a statutory provision which permits a separation agreement to be incorporated into the judgment. . . . Additionally, there is support for the proposition that a judgment may be sufficiently certain if it can be made certain by reference to other papers filed in the case.” Id. at *2. Although this Court noted in Walker that a judgment is “usually a separate writing,” this does not appear to be a requirement in Ohio. Compare
{¶49} In sum, although the determination of whether a judgment exists may require consideration of particular variables depending on the nature of the case and the type of relief
THE “FINAL JUDGMENT ENTRY”
{¶50} It is now appropriate to consider whether the trial court‘s “Final Judgment Entry” in this case was a “judgment” under
{¶51} The trial court‘s “Final Judgment Entry” purports to be a judgment. Regardless of whether the trial court‘s statement that Mr. Weygandt‘s objections “should be overruled” is viewed as overruling those objections, it is clear that the “Final Judgment Entry” is a sentence of the court between adverse parties, who it identifies. It is for one party, against the other, and is definite. It states the amount Mr. Porterfield is entitled to recover from Mr. Weygandt with
“SHOULD BE OVERRULED”
{¶52} The lead opinion has suggested that this Court does not have jurisdiction over this appeal because the trial court did not rule on Mr. Weygandt‘s objections to the magistrate‘s decision. It has pointed to
{¶53} As I explained earlier, the
{¶54} Even if the lead opinion were correct in its conclusion that, if the trial court failed to comply with
{¶55} As in Young, the trial court in this case wrote in its “Final Judgment Entry” that Mr. Weygandt‘s objections “should be overruled.” Although the trial court‘s language would be insufficient under Young, that aspect of Young is wrong. While this Court correctly recognized in Young that “should” is a synonym of “ought,” it failed to recognize that “ought, should, must, and have can all function as verbal auxiliaries meaning to be bound.” Webster‘s Third New Int‘l Dict. 1599 (1993).
{¶56} As with this Court‘s continued reliance on In re Strickler, its continued reliance on Young, serves only to delay consideration of a party‘s assignments of error, wasting time, money, and judicial resources. It, therefore, defies practical workability. Further, again as with In re Strickler, abandoning it would create no hardship. No party will have structured his business or other affairs in reliance on it. In the unlikely event that a potential appellant has failed to appeal in reliance upon it, any hardship could be alleviated by allowing an appeal within 90 days of this Court‘s decision in this case. See Rothman v. Rothman, 124 Ohio St. 3d 109, 2009-Ohio-6410, at ¶9. I would overrule Young.
{¶57} The trial court‘s judgment entry must be read as a whole. From the context, I would conclude that the court used the word “should” as the functional equivalent of “must” in expressing its conclusion that it was “bound” to overrule Mr. Weygandt‘s objections. See Webster‘s Third New Int‘l Dict. 1599 (1993). Accordingly, I would conclude that the judgment entry disposed of the objections. See Young v. Young, 9th Dist. No. 08CA0058, 2009-Ohio- 5050, at ¶12 (Carr, J., dissenting) (“Even though the trial judge used the word ‘should,’ his clear intention was to explicitly overrule the objections to the magistrate‘s decision and that was the understanding of all parties to this action.“). The journal entry certainly “provide[s] sufficient information to enable the parties to understand [that the objections were overruled].” Walker v. Walker, 9th Dist. No. 12978, 1987 WL 15591 at *2 (Aug. 5, 1987). In light of the fact that the document filed by the trial court was captioned “Final Judgment Entry” and otherwise purported to finally dispose of the parties’ claims, it is reasonable to conclude that the trial court, by saying that Mr. Weygandt‘s objections “should be overruled” intended, in that “Final Judgment Entry,” to, in fact, overrule those objections.
CONCLUSION
{¶58} Because the trial court‘s Final Judgment Entry is a judgment under
APPEARANCES:
TIMOTHY B. PETTORINI, Attorney at Law, for Appellant.
CRAIG R. REYNOLDS, Attorney at Law, for Appellee.