Williams v. OrmsbyWilliams v. Ormsby
Dated: August 9, 2010
CARR, Judge.
{¶1} Appellant, Amber Williams, appeals the judgment of the Medina County Court of Common Pleas, Domestic Relations Division. This Court reverses.
I.
{¶2} On May 15, 2009, Amber Williams appeared before a magistrate in the Medina County Court of Common Pleas, Domestic Relations Division, and requested an ex parte domestic violence civil protection order against appellant, Frederick R. Ormsby, in Case No. 09DV0113. Her request was denied by the magistrаte at that time based on a lack of evidence. The matter was set for a full hearing on July 21, 2009.
{¶3} At the July 21, 2009 hearing, counsel for Mr. Ormsby orally moved to dismiss thе petition on the basis that Ms. Williams was barred from filing the petition under the doctrine of res judicata. Both parties agreed that the full hearing shоuld be continued and that briefs should be submitted regarding Mr. Ormsby‘s motion to dismiss.
{¶4} Ms. Williams had previously filed a petition for a domestic violence civil protеction order on September 22, 2008, in Case No. 08DV0243. On that date, the court had granted an ex parte domestic violence civil protection order. Subsequently, on October 31, 2008, the date of the full hearing in that case, Ms. Williams indicated that she had agreed to dismiss her petition as pаrt of an agreed judgment entry in a separate case involving a contract dispute between Ms. Williams and Mr. Ormsby in Medina County Court of Common Pleas, Case No. 08CIV0869. The order dismissing the petition in Case No. 08DV0243 was entered on November 7, 2008. Mr. Ormsby‘s motion to dismiss in Case No. 09DV0113 was based on the premise that Ms. Williams was barred from filing a second petition based on her agreement to drop her initial petition in Case No. 08DV0243.
{¶5} On October 7, 2009, the magistrate issued а decision finding that Mr. Ormsby was entitled to a dismissal of the petition as a matter of law because the doctrine of res judicata barred Ms. Williams from filing a second petition based on the same facts. In that same October 7, 2009 journal entry, the trial court adopted the magistrate‘s decision and made it the order of the trial court.
{¶6} Ms. Williams filed her notice of appeal on November 5, 2009. On appeal, Williams raises onе assignment of error.
II.
ASSIGNMENT OF ERROR
“THE MEDINA COUNTY DOMESTIC RELATIONS COURT IN AMBER WILLIAMS V. FREDERICK ORMSBY, CASE # 09DV0113 ERRED IN GRANTING RESPONDENT‘S MOTION TO DISMISS PER CIVIL RULE 56 ON THE GROUNDS OF RES JUDICATA, APPENDIX B, CITING A PRIOR DISMISSAL ENTRY IN AMBER WILLIAMS V. FREDERICK ORMSBY, CASE #08DV0243, WHEN PER RULE 41(A)(2) A DISMISSAL IS WITHOUT PREJUDICE ‘UNLESS OTHERWISE SPECIFIED‘, WHERE THE FOUNDATION OF THE DISMISSAL ENTRY IN 08DV0243 WAS A
TEMPORARY ORDER IN A SEPARATE CIVIL CASE INVOLVING THE SAME PARTIES AMBER WILLIAMS V. FREDERICK ORMSBY, CASE NO. 08CIV0869 WHICH STATED, ‘DURING THE PENDENCY OF THIS PROCEEDING‘, APPENDIX C.”
{¶7} In her sole assignment of error, Ms. Williams contends that the trial court erred in granting Mr. Ormsby‘s motion to dismiss. This Court does not reach the merits оf her assignment of error.
{¶8} This matter was referred to a magistrate by the trial court under the provisions of
{¶9}
“A magistrate‘s decision shall be in writing, identified as a magistrate‘s decision in the caption, signed by the magistrate, filed with the clerk, and served by the clerk on all parties or their attorneys no latеr than three days after the decision is filed. A magistrate‘s decision shall indicate conspicuously that a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding оf fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii) , unless the party timely and specifically objects to that factual finding or legal conclusion as rеquired byCiv.R. 53(D)(3)(b) .”
{¶10}
“Except for a claim of plain error, a party shall not assign as error on appeal the court‘s adoption of any fаctual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii) , unless the pаrty has objected to that finding or conclusion as required byCiv.R. 53(D)(3)(b) .”
{¶11} This Court notes that Ms. Williams did not file objections to the magistrate‘s decision in this case. However, the magistrate‘s decision contained several procedural defects
“The case law discussing prejudice based upon a trial court‘s violation of
Civ.R 53 focuses on two issues: (1) whether the violation prevented the appellant the opportunity of filing objections to the magistrate‘s decision; and (2) whether the trial court was able to conduct an independent analysis of the magistrate‘s decision. The clear import of Civ.R. 53(E) [currentCiv.R. 53(D) ] is to provide litigants with a meaningful opportunity to register objections to the [magistrate‘s] report and the failure to providе such an opportunity to object is prejudicial error.” (Internal quotations and citations omitted.) Ulrich v. Mercedes-Benz USA, LLC, 9th Dist. No. 23550, 2007-Ohio-5034, at ¶13, citing Ford v. Gooden, 9th Dist. No. 22764, 2006-Ohio-1907, at ¶13, quoting Performance Constr., Inc. v. Carter Lumber Co., 3d Dist. No. 5-04-28, 2005-Ohio-151, at ¶15.
{¶12} Here, there were two notable рrocedural defects in the magistrate‘s decision. First, the magistrate‘s decision did not include a conspicuous warning that failure to object to any findings of fact and conclusions of law in the magistrate‘s decision would result in forfeiture of those issues on appeal. Including such a warning in a magistrate‘s decision is required under
{¶13} In light of the foregoing, we decline to address Ms. Williams’ assignment of error at this time. The judgment of the Mеdina County Court of Common Pleas, Domestic Relations Division, is reversed and remanded for the magistrate to prepare and file a decision which comports with
III.
{¶14} The judgment of the Medina County Court of Common Pleas, Domestic Relations Division, is reversed and remanded for proceedings consistent with this decision.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mаndate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified coрy 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 Appellee.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR
APPEARANCES:
L. RAY JONES, Attorney at Law, for Appellant.
PAUL W. HERTRICK and CHRIS D. CAREY, Attorneys at Law, for Appellee.