Harkai v. Scherba Industries, Inc.

• Decision Date: 26 April 2000
• Docket Number: No. 2925-M.,2925-M.
• Citation: Harkai v. Scherba Industries, Inc., 136 Ohio App.3d 211, 736 N.E.2d 101 (Ohio App. 2000)
• Parties: HARKAI, Appellee, v. SCHERBA INDUSTRIES, INC., Appellant.
• Court: Ohio Court of Appeals

136 Ohio App.3d 211

736 NE 2d 101

HARKAI, Appellee, v. SCHERBA INDUSTRIES, INC., Appellant.

No. 2925-M.

Court of Appeals of Ohio, Ninth District, Medina County.

Decided April 26, 2000.

COPYRIGHT MATERIAL OMITTED

Frank R. Osborne, for appellee.

Mark F. Kruse and Robert R. Kracht, for appellant.

Per Curiam.

Appellant Scherba Industries, Inc. appeals from an order of the Medina Common Pleas Court that "affirmed" a magistrate's decision after objections had been filed by the parties pursuant to Civ.R. 53(E)(4)(b). We dismiss this case for lack of jurisdiction.

On July 6, 1998, a magistrate's decision with findings of fact and conclusions of law was journalized in the court of common pleas. That decision found that the covenant not to compete in appellee Dennis Harkai's employment agreement with appellant was unreasonable and should be modified to restrict competition for eighteen months, a shorter period of time than that stated in the agreement. The magistrate also directed Harkai's counsel to prepare a journal entry. The parties filed objections, and on September 23, 1998, the trial court journalized an order, which it captioned "Judgment Entry" and which affirmed the magistrate's decision.

This court does not have jurisdiction to review this case because the trial court has failed to enter a "judgment or final order" that disposes of the issues before the court. Section 3(B)(2), Article IV of the Ohio Constitution provides that "courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals." The September 23, 1998 order is not a "judgment or final order" pursuant to the Ohio Revised Code, the Ohio Rules of Civil Procedure, and judicial determinations that define our jurisdiction under the Ohio Constitution.

Our jurisdictional analysis in this case begins with an examination of the definition of "judgments or final orders." R.C. 2505.02(B)(1)¹ states: "An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * an order that affects a substantial right in an action that in effect determines the action and prevents a judgment." Civ.R. 54(A) defines a "judgment" as "any order from which an appeal lies as provided in section 2505.02 of the Revised Code." For the purposes of determining our jurisdiction, therefore, "judgment" and "final order" are the same.

R.C. 2505.02 is considered a "legislative restatement" of the judiciary's definition of a final order. Cincinnati Gas & Elec. Co. v. Pope (1978), 54 Ohio St.2d 12, 16, 8 O.O.3d 7, 9, 374 N.E.2d 406, 409; Klein v. Bendix-Westinghouse Automotive Air Brake Co. (1968), 13 Ohio St.2d 85, 86-87, 42 O.O.2d 283, 284, 234 N.E.2d 587, 589.

The Ohio Supreme Court has elaborated upon the statutory definition:

"For an order to determine the action and prevent a judgment for the party appealing, it must dispose of the whole merits of the cause or some separate and distinct branch thereof and leave nothing for the determination of the court." Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities v. Professionals Guild of Ohio (1989), 46 Ohio St.3d 147, 153, 545 N.E.2d 1260, 1267.

The courts have similarly described a "judgment": "A judgment is the final determination of a court of competent jurisdiction upon matters submitted to it." State ex rel. Curran v. Brookes (1943), 142 Ohio St. 107, 26 O.O. 287, 50 N.E.2d 995, paragraph two of the syllabus. "A final judgment is one which determines the merits of the case and makes an end to it." Id. at 110, 26 O.O. at 288, 50 N.E.2d at 998.

"A final judgment is one which operates to divest some right in such a manner as to put it beyond the power of the court making the order to place the parties in their original condition after the expiration of the term; that is, it must put the case out of court and must be final in all matters within the pleadings." In re Estate of Castrovince (Aug. 16, 1996), Portage App. No. 96-P-0175, unreported, 1996 WL 1056815, citing In re Thomas' Will (1948), 84 Ohio App. 30, 39 O.O. 46, 84 N.E.2d 294. Regardless of whether an order is characterized as a "final order" or "judgment," the result is the same: if the order is final, the timely filing of a notice of appeal will divest the trial court of jurisdiction to alter the order.² See, e.g., Yee v. Erie Cty. Sheriffs Dept. (1990), 51 Ohio St.3d 43, 44, 553 N.E.2d 1354, 1355; In re Kurtzhalz (1943), 141 Ohio St. 432, 25 O.O. 574, 48 N.E.2d 657, paragraph two of the syllabus.

That is not to say that a trial court cannot change its judgment. All judgments are potentially voidable, either by the trial court itself or by an appellate court. Eisenberg v. Peyton (1978), 56 Ohio App.2d 144, 151, 10 O.O.3d 158, 163, 381 N.E.2d 1136, 1141; Walker v. Walker (Aug. 5, 1987), Summit App. No. 12978, unreported, 1987 WL 15591. Rules of procedure, however, limit the avenues through which a party may petition the trial court to change its own judgment. In re Guardianship of Maurer (1995), 108 Ohio App.3d 354, 357, 670 N.E.2d 1030, 1032; Cale Products, Inc. v. Orrville Bronze & Aluminum Co. (1982), 8 Ohio App.3d 375, 8 OBR 489, 457 N.E.2d 854, paragraph one of the syllabus. For example, a party may file a Civ.R. 50(B) motion for judgment notwithstanding the verdict, Civ.R. 53(E)(4)(c) objections after entry of judgment, or a Civ.R. 59 motion for new trial.³ Nevertheless, if a notice of appeal has been filed, the trial court will not have jurisdiction to rule on the motion absent a remand from the appellate court. See Ford v. Tandy Transp., Inc. (1993), 86 Ohio App.3d 364, 383-384, 620 N.E.2d 996, 1009.

The foregoing definitions stress that the primary function of a final order or judgment is the termination of a case or controversy that the parties have submitted to the trial court for resolution. This court must look to the language employed in the purported judgment entry to ascertain whether the trial court's entry accomplishes that result. See Peters v. Arbaugh (1976), 50 Ohio App.2d 30, 32-33, 4 O.O.3d 17, 18-19, 361 N.E.2d 531, 533. One fundamental principle in the interpretation of judgments is that, to terminate the matter, the order must contain a statement of the relief that is being afforded the parties.⁴See, e.g., Reiter v. Reiter (May 11, 1999), Hancock App. No. 5-98-32, unreported, 1999 WL 378354; Pace v. Pace (Oct. 8, 1996), Gallia App. No. 95 CA 17, unreported, 1996 WL 595846; Martin v. Martin (June 24, 1994), Portage App. No. 93-P-0065, unreported, 1994 WL 315667; Walker v. Walker (Aug. 5, 1987), Summit App. No. 12978, unreported, 1987 WL 15591; Gaines v. Gaines (Apr. 8, 1980), Greene App. No. 1109, unreported.

In Walker, this court explained:

"The content of the judgment must be definite enough to be susceptible to further enforcement and provide sufficient information to enable the parties to understand the outcome of the case. If the judgment fails to speak to an area which was disputed, uses ambiguous or confusing language, or is otherwise indefinite, the parties and subsequent courts will be unable to determine how the parties' rights and obligations were fixed by the trial court."

The characteristics of a judgment were similarly described in In re Michael (1991), 71 Ohio App.3d 727, 730, 595 N.E.2d 397, 399, quoting Lavelle v. Cox (Mar. 15, 1991), Trumbull App. No. 90-T-4396, unreported, 1991 WL 35642, (Ford, J., concurring) as follows:

"`It is fundamental that the trial court employ diction which should include * * * operative, action-like and conclusionary verbiage * * *. Obviously, it is not necessary for such directive to be encyclopedic in character, but it should contain clear language to provide basic notice of rights, duties, and obligations.'"

If the trial court intends to terminate the dispute between the parties, it must issue an entry that includes the "prescription for action" in the case. Walker, supra.

Moreover, a "judgment" must be distinguished from a "decision." See Sup.R. 7(A); Civ.R. 58(A); William Cherry Trust v. Hofmann (1985), 22 Ohio App.3d 100, 104, 22 OBR 288, 292, 489 N.E.2d 832, 835. Indeed, pursuant to Civ.R. 54(A), a judgment "shall not contain a recital of pleadings, the magistrate's decision in a referred matter, or the record of prior proceedings." These matters are properly placed in the "decision." A decision announces what the judgment will be. The judgment entry unequivocally orders the relief. See St. Vincent Charity Hosp. v. Mintz (1987), 33 Ohio St.3d 121, 123, 515 N.E.2d 917, 919.

Having discussed the "judgment or final order" element necessary to our jurisdiction under the Ohio Constitution, we now discuss the limitation on our jurisdiction to judgments or final orders of "courts of record." An order is not an order of a court of record unless certain formalities have been met. For example, a purported civil judgment must comply with Civ.R. 58(A), which states:

"Upon a general verdict of a jury, upon a decision announced, or upon the determination of a periodic payment plan, the court shall promptly cause the judgment to be prepared and, the court having signed it, the clerk shall thereupon enter it upon the journal. A judgment is effective only when entered by the clerk upon the journal."

Only through compliance with Civ.R. 58(A) can an appellate court be certain that the order reflects judicial action. See Peters v. Arbaugh, 50 Ohio App.2d at 35-36, 4 O.O.3d at 20-21, 361 N.E.2d at 534-535 (Whiteside, J., concurring). Moreover, compliance with Civ.R. 58(A) also ensures that the matter has been terminated. "Absent such entry, a `judgment' that is merely pronounced is inchoate only. `Though possessing the character of potentiality, it lacks the character of actuality, and hence is without probative force.'" Horner v. Toledo Hosp. (1993), 94 Ohio App.3d 282, 289, 640...