Akin v. Bushong , 2017 Ohio 7333 ( 2017 )

[Cite as Akin v. Bushong, 2017-Ohio-7333.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
David Akin, :
Plaintiff-Appellee, :
No. 17AP-107
v. : (M.C. No. 2016 CVI 20106)
Dennis Bushong, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 24, 2017
On brief: David Akin, pro se. Argued: David Akin.
On brief: Dennis Bushong, pro se.
APPEAL from the Franklin County Municipal Court
HORTON, J.
{¶ 1} Defendant-appellant, Dennis Bushong, pro se, appeals from a judgment of
the Franklin County Municipal Court granting plaintiff-appellee, David Akin, pro se,
damages in the amount of $1,300 plus court costs and interest. For the following reasons,
we lack jurisdiction and dismiss this appeal.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 5, 2016, appellee filed a lawsuit in the small claims division of the
Franklin County Municipal Court claiming that he hired appellant to color stain and finish
a custom built-in media center made of birch/poplar wood, and that appellant's work was
defective. As a result, appellee demanded $3,000, plus court costs and interest, in
damages. (Compl. at 1.)
{¶ 3} The case was tried before a magistrate on September 21, 2016. On
October 28, 2016, the magistrate found in favor of appellee and awarded damages of
$1,300, plus costs and interest. The magistrate's decision also stated that "[a] party shall
No. 17AP-107 2
not assign as error on appeal the court's adoption of any findings of fact or conclusion of
law contained in this decision unless the party timely and specifically objects to that
finding or conclusion. Civ.R. 53(D)(3)." On November 1, 2016, the trial court adopted the
magistrate's decision and ordered judgment for appellee. (Jgmt. Entry at 1.)
{¶ 4} On November 18, 2016, appellant filed objections to the magistrate's
decision. On January 13, 2017, the trial court filed a judgment entry that states in relevant
part:
Case called before court on objection filed by defendant.
Objection was filed more than fourteen (14) days after
decision of magistrate which was journalized on November 1,
2016. Also, defendant did not file transcript of hearing.
Therefore, defendant's objections are denied. Magistrate's
decision is affirmed.
{¶ 5} Appellant filed a notice of appeal on February 10, 2017.
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellant assigns the following assignments of error:
[I.] The Municipal Court erred in granting the plaintiff $1300
based on insufficient evidence and bias in allowing a second
hearing for the plaintiff so that he "could be prepared."
[II.] The Municipal Court erred in removing $1300 from the
defendant's joint bank account on Feb. 1 while the case was
open for appeal until Feb. 12.
[III.] The Municipal Court erred in not informing defendant
that the money would be taken out on Feb. 1.
[IV.] The Municipal Court erred in not giving the opportunity
to the defendant to have a garnishment hearing prior to
removing the money.
III. THIS COURT LACKS JURISDICTION
{¶ 7} Our review shows that appellant did not timely file his objections to the
magistrate's decision pursuant to Civ.R. 53(D)(4)(e)(i), nor did he file a timely appeal
pursuant to App.R. 4(A).
{¶ 8} We have addressed the same issue in Levy v. Ivie, 10th Dist. No. 10AP-1185,
2011-Ohio-4055. In Levy, at ¶ 11-12, 15-17, we stated in relevant part:
No. 17AP-107 3
Pursuant to Civ.R. 53(D)(3)(b)(i) a party may file objections to
a magistrate's decision within 14 days of the filing of the
decision, "whether or not the court has adopted the decision
during that fourteen-day period." * * * If no objections are
timely filed, App.R. 4(A) allows a party to file a notice of
appeal within 30 days after the trial court enters its judgment
adopting the magistrate's decision. See also App.R. 4(B)(2).
Here, the magistrate filed her decision to dismiss the case on
December 10, 2008, and the trial court adopted that decision
on December 18, 2008. Appellant did not object within 14
days after the filing of the magistrate's decision, as permitted
by Civ.R. 53(D)(3)(b)(i), nor did he pursue a timely appeal in
accordance with App.R. 4(A). * * *
Without a timely objection to the magistrate's decision, the
trial court's December 18, 2008 final judgment remained in
full effect. As a result, the trial court lacked jurisdiction to rule
on appellant's untimely November 9, 2009 objections in its
journal entry filed on June 18, 2010. "[U]ntimely objections
filed after the entry of a final judgment are tantamount to a
motion for reconsideration, which is a nullity." Murray v.
Goldfinger, 2d Dist. No. 19433, 2003-Ohio-459, ¶ 5, citing
Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St. 2d 378, 379,
423 N.E.2d 1105. "Moreover, '[i]t follows that a judgment
entered on a motion for reconsideration is also a nullity and a
party cannot appeal from such a judgment.' " Rutan v. Collins,
10th Dist. No. 03AP-36, 2003-Ohio-4826, ¶ 7, quoting
Primmer v. Lipp, 5th Dist. No. 02-CA-94, 2003 Ohio 3577,
¶ 7.
Accordingly, had the trial court purported to rule on the
objection in its June 18, 2010 journal entry, any such ruling
would have been a nullity and, therefore, unreviewable on
appeal. See, e.g., In re J.A.M., 12th Dist. No. CA2010-07-174,
2011-Ohio-668, ¶ 15 (after a final judgment has already been
entered, an appellate court has no jurisdiction to review a trial
court's decision purporting to "'overrule' appellant's untimely
objections and re-adopt the magistrate's decision"); Stamper
v. Keatley, 4th Dist. No. 04CA14, 2004-Ohio-5430, ¶ 9
(because the trial court had already entered a final judgment
terminating the case, no appellate jurisdiction to review the
trial court's second order purporting to dismiss the appellant's
untimely objections). Under App.R. 4(A), appellant could
have appealed within 30 days after the trial court entered its
judgment on December 18, 2008. Because he did not pursue
an appeal within that time, we lack jurisdiction to address his
No. 17AP-107 4
assignment of error now. See In re J.A.M. at ¶ 16; Stamper at
¶ 9.
{¶ 9} Based on Levy, in this case without a timely objection having been filed to
the magistrate's decision of October 28, 2016, the trial court's November 1, 2016
judgment remained in full effect. As a result, the trial court lacked jurisdiction to rule on
appellant's untimely November 18, 2016 objections in its judgment entry filed January 13,
2017. Accordingly, the trial court's judgment entry of January 13, 2017, is a nullity and
therefore, unreviewable on appeal. See, e.g., In re J.A.M., 12th Dist. No. CA2010-07-174,
2011-Ohio-668, ¶ 15; Stamper v. Keatley, 4th Dist. No. 04CA14, 2004-Ohio-5430, ¶ 9.
Under App.R. 4(A), appellant could have appealed within 30 days after the trial court
entered its judgment on November 1, 2016. Because he did not pursue an appeal within
that time, we lack jurisdiction to address his assignments of error now. See In re J.A.M. at
¶ 16; Stamper at ¶ 9.
IV. DISPOSITION
{¶ 10} Based on the foregoing, we lack jurisdiction to hear this appeal. Accordingly,
this appeal is sua sponte dismissed.
Appeal sua sponte dismissed.
TYACK, P.J. and BRUNNER, J., concur.
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