Everhome Mtge. Co. v. Kilcoyne , 2012 Ohio 593 ( 2012 )


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  • [Cite as Everhome Mtge. Co. v. Kilcoyne, 
    2012-Ohio-593
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96982
    EVERHOME MORTGAGE COMPANY
    PLAINTIFF-APPELLEE
    vs.
    CHRISTOPHER KILCOYNE, ET AL.
    DEFENDANTS-APPELLANTS
    JUDGMENT:
    DISMISSED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-732303
    BEFORE: S. Gallagher, J., Jones, P.J., and Cooney, J.
    RELEASED AND JOURNALIZED: February 16, 2012
    FOR APPELLANT
    Christopher Kilcoyne, pro se
    4803 Brookpark Road
    Cleveland, OH 44134
    ATTORNEYS FOR APPELLEE
    David M. Gauntner
    Antonio J. Scarlato
    Felty & Lembright Co., L.P.A.
    1500 West Third Street
    Suite 400
    Cleveland, OH 44113
    SEAN C. GALLAGHER, J.:
    {¶1} Defendant-appellant Christopher Kilcoyne appeals the trial court’s decision
    that adopted a magistrate’s decision in a foreclosure action and granted plaintiff-appellee
    Everhome Mortgage Company (“Everhome”) a decree of foreclosure.1 For the following
    1
    We note that Kilcoyne is the only defendant appealing the trial court’s decision. All claims
    against the other defendants were disposed of through a motion for default judgment granted in favor
    of Everhome.
    reason, we dismiss the instant appeal for lack of jurisdiction: the trial court has not issued
    a final, appealable order.
    {¶2} On December 21, 2011, this court ordered the parties to show cause as to
    whether the trial court’s March 29, 2011 judgment entry, adopting the magistrate’s
    decision, was a final, appealable order. Appellee, the only responding party, contends
    that the March 29, 2011 journal entry, granting summary judgment in favor of appellee
    and against Christopher Kilcoyne, and the June 2, 2011 order, adopting the magistrate’s
    decision, together constitute a final order.        The journal entry granting summary
    judgment, however, granted partial judgment on liability only.              The trial court
    specifically ordered appellee to file a proposed magistrate’s decision. The trial court’s
    June 2, 2011 order adopted and incorporated the magistrate’s decision and purported to
    resolve all remaining issues. The trial court further stated the final entry was a “separate
    and distinct” instrument.
    {¶3} When the court adopts, rejects, or modifies a magistrate’s decision, it must
    also enter a judgment. Civ.R. 53(D)(4)(e). The judgment entry must contain a clear
    pronouncement of the court’s judgment and a statement of relief and must be a complete
    document, separate and apart from that of the magistrate’s order. Deutsche Bank Natl.
    Co. v. Caldwell, 8th Dist. No. 96249, 
    2011-Ohio-4508
    , 
    2011 WL 3925621
    . Merely
    stating that the document is a separate and distinct instrument is patently insufficient to
    establish the distinctness element when a copy of the magistrate’s decision is attached to
    the judgment entry and incorporated by reference. 
    Id.
    {¶4} “[A] ‘judgment’ must be distinguished from a ‘decision.’ Indeed, pursuant
    to Civ.R. 54(A), a judgment shall not contain * * * the magistrate’s decision in a referred
    matter * * *. These matters are properly placed in the decision.” (Internal citations and
    quotations omitted.) Harkai v. Scherba Industries, Inc., 
    136 Ohio App.3d 211
    , 216,
    
    736 N.E.2d 101
    , 105 (9th Dist.2000).          In this case, the trial court attached, and
    incorporated by reference, a copy of the magistrate’s decision to the March 29, 2011
    judgment. Pursuant to the plain language of Civ.R. 54(A), the judgment of the court
    cannot contain the magistrate’s decision, and therefore, there is no final, appealable order.
    We are cognizant that this may seem to be placing form over substance, but we are
    constrained to apply the rules as written and interpreted by prior decisions.
    {¶5} We accordingly dismiss the current appeal for lack of jurisdiction.
    It is ordered that appellee recover from appellant costs herein taxed.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    SEAN C. GALLAGHER, JUDGE
    LARRY A. JONES, P.J., and
    COLLEEN CONWAY COONEY, J., CONCUR
    

Document Info

Docket Number: 96982

Citation Numbers: 2012 Ohio 593

Judges: Gallagher

Filed Date: 2/16/2012

Precedential Status: Precedential

Modified Date: 10/30/2014