Murray v. Ace Painting of Akron, L.L.C. , 2022 Ohio 1045 ( 2022 )

[Cite as Murray v. Ace Painting of Akron, L.L.C., 2022-Ohio-1045.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
ELLIN MURRAY, INDIVIDUALLY AND C.A. No. 29959
AS NEXT FRIEND OF MINOR CHILD
M.K.M., et al.
Appellants APPEAL FROM JUDGMENT
ENTERED IN THE
v. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
ACE PAINTING OF AKRON, LLC, et al. CASE No. CV-2020-09-2583
Appellees
DECISION AND JOURNAL ENTRY
Dated: March 30, 2022
SUTTON, Judge.
{¶1} Plaintiffs-Appellants Ellin Murray and Gordon Murray (collectively the
“Murrays”) appeal from the judgment of the Summit County Court of Common Pleas vacating the
default judgment entered against Defendants-Appellees Ace Painting of Akron, LLC (“Ace”) and
Scott Summerville and quashing service on Ace. This Court dismisses the appeal for lack of
jurisdiction.
I.
{¶2} The present appeal arises from a car accident that occurred in Summit County,
Ohio. The Murrays initially filed suit against Ace and Mr. Summerville in Stow Municipal Court
and subsequently refiled the case in the Summit County Court of Common Pleas. That second
complaint gives rise to the present appeal.
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{¶3} When neither defendant filed an answer to the Murrays’ second complaint, the
Murrays filed a motion for default judgment. The trial court entered default judgment in favor of
the Murrays on December 1, 2020, but deferred determination of damages for a later hearing. On
January 13, 2021, the magistrate issued a decision setting forth a damages award.
{¶4} Ace and Mr. Summerville then filed a joint motion to quash service obtained on
Ace, as well as a joint motion to vacate the default judgment entered against them. On April 1,
2021, the trial court granted the motion to quash service with respect to Ace and vacated the default
judgment. By separate order issued April 2, 2021, the trial court also declined to adopt the
magistrate’s decision granting damages to the Murrays.
{¶5} The Murrays appeal those orders, raising seven assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT EXPRESSLY DECIDED THE
MOTIONS TO QUASH AND TO VACATE BASED ON “PRACTICAL”
CONSIDERATIONS RATHER THAN “TECHNICAL” LEGAL ONES.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT QUASHED SERVICE ON [MR.]
SUMMERVILLE WHEN [MR.] SUMMERVILLE MADE NO MOTION,
OFFERED NO EVIDENCE THAT HE WAS NOT PROPERLY SERVED,
THE MURRAYS PROVED HE WAS PERSONALLY SERVED[,] AND THE
MURRAYS REQUESTED DISCOVERY AND AN EVIDENTIARY
HEARING BUT NONE WAS PROVIDED.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT QUASHED SERVICE ON ACE
WHEN THE MURRAYS SHOWED ACE’S ARGUMENTS AND
EVIDENCE WERE INSUFFICIENT TO REBUT THE PRESUMPTION OF
PROPER SERVICE, THE MURRAYS PROVIDED ACE WAS PROPERLY
SERVED[,] AND THE MURRAYS REQUESTED DISCOVERY AND AN
EVIDENTIARY HEARING BUT NONE WAS PROVIDED.
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ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED WHEN IT GRANTED [MR.]
SUMMERVILLE’S MOTION TO VACATE JUDGMENT WHEN [MR.]
SUMMERVILLE MADE NO ATTEMPT TO OFFER ANY EVIDENCE,
[MR.] SUMMERVILLE FAILED TO SATISFY THE GTE AUTOMATIC
ELEMENTS AND THE MURRAYS REQUESTED DISCOVERY AND AN
EVIDENTIARY HEARING THAT WERE NOT PROVIDED.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED WHEN IT GRANTED ACE’S MOTION TO
VACATE JUDGMENT WHEN ACE’S MOTION TO VACATE DEPENDED
ON ITS FAULTY MOTION TO QUASH TO PROVE “EXCUSABLE
NEGLECT”, ACE FAILED TO SATISFY THE GTE AUTOMATIC
ELEMENTS AND THE MURRAYS REQUESTED DISCOVERY AND AN
EVIDENTIARY HEARING THAT WAS NOT PROVIDED.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED WHEN IT REJECTED THE
MAGISTRATE’S DECISION AWARDING DAMAGES TO WHICH NO
OBJECTIONS HAD BEEN MADE FOR NO REASON OTHER THAN THE
FACT THAT THE TRIAL COURT HAD ALREADY ERRONEOUSLY
DECIDED TO GRANT ACE’S MOTION TO QUASH AND ACE’S AND
[MR.] SUMMERVILLE’S MOTION TO VACATE.
ASSIGNMENT OF ERROR VII
THE TRIAL COURT ERRED WHEN IT FAILED TO SEVER AND ENTER
JUDGMENT AGAINST [MR.] SUMMERVILLE.
{¶6} This Court is obligated to raise matters related to its jurisdiction sua sponte. See
The Whitaker-Merrell Co. v. Carl M. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186 (1972).
Under Section 3(B)(2), Article IV of the Ohio Constitution, this Court’s appellate jurisdiction is
limited to the review of judgments, decrees, and final orders of lower courts. R.C. 2505.02 defines
a final order in relevant part as:
(1) An order that affects a substantial right in an action that in effect determines the
action and prevents a judgment;
***
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(3) An order that vacates or sets aside a judgment or grants a new trial[.]
{¶7} Having reviewed the trial court record, we conclude that the orders appellants have
attempted to appeal are not final orders under R.C. 2505.02(B). First, with respect to the April 1,
2021 order granting the motion to quash service and vacating the default judgment, that order does
not meet the requirements of R.C. 2505.02(B)(1) because it did not resolve the matter. Ultimately,
that order concluded that the action would continue, allowing defendants to file answers to the
complaint and contemplating the scheduling of an initial pretrial. Therefore, the April 1, 2021
order did not determine the action and is not a final order under R.C. 2505.02(B)(1).
{¶8} Nor is that order final under R.C. 2505.02(B)(3) as an order that vacated a final
judgment. Ordinarily, a trial court’s order vacating a judgment is a final, appealable order. See
R.C. 2505.02(B)(3). However, if the “judgment” the moving party seeks to vacate is not itself a
final order, then an order vacating that judgment is also not a final order. See Jarrett v. Dayton
Osteopathic Hosp., Inc., 20 Ohio St.3d 77, 78 (1985).
{¶9} Here, although the April 1, 2021 order granted defendants’ motion to vacate the
default judgment, the default judgment was not itself a final order because it deferred the issue of
damages to a later hearing. An order that determines liability without resolving damages is not
final and appealable. State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 546
(1997). Furthermore, although the magistrate issued a decision concerning damages on January
13, 2021, the trial court did not enter judgment on that decision. Without a trial court order entering
judgment, damages remained unresolved. See Harkai v. Scherba Industries, Inc., 136 Ohio
App.3d 211, 218 (9th Dist.2000) (“[O]nly a judge -- not a magistrate -- may terminate a claim or
action by entering judgment.”). As a result, the default judgment was not a final order, nor is the
April 1, 2021 order that vacated it.
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{¶10} As for the April 2, 2021 order, which declined to enter judgment on the magistrate’s
damages decision, that order also fails to meet the finality requirements of R.C. 2505.02(B). The
April 2, 2021 order rejected the magistrate’s decision as moot because the default judgment had
been vacated. But it did not in any way determine the matter before the trial court, which remains
subject to further proceedings. As a result, the April 2, 2021 order is not a final order pursuant to
R.C. 2505.02(B)(1).
{¶11} The parties received notice from the trial court pursuant to Civ.R. 58(B) that
informed them the April 1, 2021 order was a final appealable order, and the April 2, 2021 order
contained language indicating it was a final appealable order. While the trial court may have
viewed both orders as final and appealable, “merely reciting the ‘no just reason for delay’ language
or asserting that an order is final and appealable cannot transform an otherwise non-final order into
one that is final and appealable.” Hack v. Keller, 9th Dist. Medina No. 14CA0036-M, 2015-Ohio-
4128, ¶ 12, citing Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352, 354 (1993), citing
Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86 (1989). “Furthermore, the determination
as to the appropriateness of an appeal lies solely with the appellate court.” In re S.J., 106 Ohio
St.3d 11, 2005-Ohio-3215, ¶ 10.
III.
{¶12} For the foregoing reasons, the Court concludes that the orders appealed are
interlocutory orders that are not immediately appealable under R.C. 2505.02(B). Therefore, we
are without jurisdiction to consider the attempted appeal.
Appeal dismissed.
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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. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellants.
BETTY SUTTON
FOR THE COURT
CARR, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
DEAN S. HOOVER, Attorney at Law, for Appellants.
JOSEPH H. WANTZ, Attorney at Law, for Appellees.