Peters v. Arbaugh , 50 Ohio App. 2d 30 ( 1976 )

This cause comes before this court on defendants' application for reconsideration and motion to certify this case to the Supreme Court of Ohio. Defendants' request this court to reconsider its decision overruling defendants' original motion to dismiss the appeal. The original motion to dismiss was based on the alleged failure of plaintiffs to file a timely notice of appeal. The dispute around which defendants' original motion centered was the legal effect of the trial court's filing of a document labeled "Decision and Journal Entry" on December 26, 1975, and the subsequent filing by the trial court of a document labeled "Journal Entry" on January 28, 1976. Defendants argued in their original motion that the document filed on December 26, 1975, was the final entry of judgment from which the time period for filing a notice of appeal should have run.

This court, in our decision overruling the original motion, held that the December 26, 1975, entry constituted a decision, and the January 28, 1976, entry constituted the judgment entry. Thus, the notice of appeal filed January 28, 1976, was timely.

Defendants now argue that this court's previous ruling should be reversed on the basis of the recent Ohio Supreme Court ruling in Millies v. Millies (1976), 47 Ohio St.2d 43, contending that "* * * from the language contained in footnote two, the decision of Shore v. Chester (1974), 40 Ohio App.2d 412, should no longer be followed." Implicit in defendants' proposition is the assertion that this court's decision overruling his original motion was based entirely on Shore v. Chester, supra. This was not the case. While the reasoning of Shore was used, this court also ruled that the December 26, 1975, document could not have been a judgment entry because it was signed by someone other than the judge, thereby being in violation of Civ. R. 58. We disagree.

First, the Supreme Court in Millies, supra, specifically stated in the body of its decision that the court was not passing upon the correctness of the Shore v. Chester, holding.

Secondly, defendants are reading the Shore decision too narrowly. While we did state that: "* * * the rules require that the decision be announced to the parties first and then judgment entered pursuant thereto * * *" (referring to Civ. R. 58 and Franklin County Common Pleas Rule 39.01), we further stated:

"* * * The decision herein reads like a decision, not ajudgment. There is nothing therein except the caption `Decision and Judgment Entry' which would cause anyone to believe that it was anything more than the court's written decision." Shore v.Chester, supra at 414. (Emphasis added.)

In other words, the Shore decision did not rule that a document which contains both a decision and judgment entry can never operate as a final appealable order. This court agrees with the statement the Supreme Court cited from Associated Press v. Taft-Ingalls Corp. (C. A. 6, 1963),323 F.2d 114, at 115:

"There are no hard and fast rules for determining what is a judgment; past cases have set certain boundaries and announced generalizations, but essentially every case must be determined from its own facts."

In at least two cases this court has held that a document entitled "Decision and Judgment Entry" did constitute a "Judgment Entry" because of the language used therein, and the fact that the parties in the case were not misled as to the judge's intentions. See Ohio Hospital Assn. v. Garnes, Admr., unreported, Franklin County Court of Appeals No. 74-AP-486 andGrandstaff, Inc., v. Chapan, unreported, Franklin County Court of Appeals No. 74AP-593.

While it is clear that the Civil Rules do not require a judgment to be written in any particular form, except for those prohibitions set forth in Civ. R. 54(A), it must disclose the present intention of the court to terminate the dispute between the parties. (If the judgment does not dispose of all the issues in an action involving multiple claims or parties, Civ. R. 54[B] must be complied with.) See 11 Wright and Miller, Federal Practice and Procedure, Section 2781.

A judgment entry should, therefore, contain a "sufficiently definitive formal statement" that indicates the court'spresent intention by such entry to effect a termination of the litigation. See Millies v. Millies, supra at 45, wherein the Ohio Supreme Court cites Healy v. Pennsylvania R. Co. (C. A. 3, 1950), 181 F.2d 934.

This court is of the opinion that it is better practice for a court to separate its decision and judgment entry. However, when a document labeled "Decision and Judgment Entry" contains a sufficiently definitive formal statement which indicates the present intention of the court to finally adjudicate the dispute, that document, even though erroneously entered as indicated by Shore will operate as the judgment entry or final appealable order. Upon the entry of such a document on the court's record, the judgment becomes effective and the time in which a notice of appeal must be filed begins to run. See Civ. R. 58 and App. R. 4 (A).

Although it is better practice for a trial court to separate its decision and judgment entry, and while it may be error under Civ. R. 58 and Rule 39.01 of the Franklin County Court of Common Pleas Rules of Practice, such error is not jurisdictional, and a document labeled "Decision and Judgment Entry" which meets the standards set forth above will operate as a judgment entry from which an appeal will lie.

Turning now specifically to the facts in this case, this court is of the opinion that the December 26, 1975, document labeled "Decision and Journal Entry" is a decision because such entry does not contain a sufficiently definitive formal statement showing the present intent of the trial court to effect a termination of the case. The January 28, 1976, judgment entry does contain such a formal statement. Thus, the notice of appeal, filed on January 28, 1976, was timely.

As to the appellees' motion to certify this case as being in conflict with Millies v. Millies, supra, it is our opinion that there is no conflict between this court's decision overruling the original motion to dismiss and the Millies case, but further certification would not be possible because the Millies decision compels the holding in this case, since the facts in this case are more squarely on point with the facts in Millies. Further, the law set forth in the Millies case and in this case is the same. Finally, a case cannot be certified on the basis of a conflict between a decision of this court and the Supreme Court, inasmuch as we are compelled to follow the the Supreme Court.

The motions for reconsideration and certification are denied.

Motions denied.

WHITESIDE and McCORMAC, JJ., concur.