William Cherry Trust v. Hofmann

• Court: Ohio Court of Appeals
• Writing for the Court: HANDWORK; CONNORS, P.J., and RESNICK
• Citation: William Cherry Trust v. Hofmann, 22 Ohio App.3d 100, 489 N.E.2d 832, 22 OBR 288 (Ohio App. 1985)
• Decision Date: 29 March 1985
• Docket Number: No. L-84-319,L-84-319
• Parties: , 22 O.B.R. 288 WILLIAM CHERRY TRUST, Chanell, Trustee, Appellant, v. HOFMANN, d.b.a. Hofmann Furniture Store et al., Appellees.

Page 100

22 Ohio App.3d 100

489 N.E.2d 832, 22 O.B.R. 288

WILLIAM CHERRY TRUST, Chanell, Trustee, Appellant, v. HOFMANN, d.b.a. Hofmann Furniture Store et al., Appellees.

No. L-84-319.

Court of Appeals of Ohio, Sixth District, Lucas County.

March 29, 1985.

Syllabus by the Court

1. The language of Civ.R. 58 implies the formal "preparation" of a written journal of judgment entry by trial courts. (Civ.R. 58, construed.)

2. A judge speaks as a court only through journalized judgment entries.

3. A judgment is final, effective and imbued with a permanent character when filed with the clerk of the trial court pursuant to Civ.R. 58.

4. While Civ.R. 58 does not require a court's "judgment" to be incorporated on a document separate from its "decision," the better practice is for a court to file a separate document with the clerk, preferably one identifiable as a "judgment entry," which the clerk of the trial court may then date and "enter" on the record. (L.T.M. Builders v. Jefferson [1980], 61 Ohio St.2d 91, 399 N.E.2d 1210 [15 O.O.3d 127], followed.)

5. In order to be "effective" under Civ.R. 58 and App.R. 4(A), a court's judgment, whatever its form may be, must be filed with the trial court clerk for journalization. (Civ.R. 58 and App.R. 4[A], construed and applied.)

6. Handwritten "notations" by a municipal judge on a case file-envelope or case jacket do not rise to the dignity and finality of a "judgment" from which an appeal will lie, in the absence of evidence that it has been filed with the clerk of the trial court. For the same reason, the thirty-day time limit within which to file the notice of appeal does not begin to run unless and until that which the municipal court has ordered or decreed in its judgment is filed with the clerk of the trial court.

7. App.R. 4(A) requires that a notice of appeal be filed with the clerk of the trial court within thirty days of the date of the entry of the court's judgment, which is considered to be "entered" when it is filed with the clerk of the trial court for journalization. (App.R. 4[A], construed and applied.)

8. Under M.C.Sup.R. 7 and R.C. 1901.21(A), Civ.R. 58's mandate regarding the filing and entry of judgments controls this procedure in municipal courts. Any judgment or order not filed with the trial court clerk is not final and appealable.

9. Filing is usually, though not exclusively, evidenced by "file-stamping" the date of filing on the face of the document. Endorsing the date of filing on a judgment entry is evidence that it was filed on that date for the purpose of determining the timeliness of the appeal and therefore appellate jurisdiction. (In re Hopple [1983], 13 Ohio App.3d 54, 468 N.E.2d 129, applied and followed.)

Susan Hartman Muska, Toledo, for appellant.

Kelly D. Stimpson, Toledo, for appellees.

HANDWORK, Judge.

This matter is before the court, sua sponte. The case sub judice is a civil appeal purportedly from a judgment of the Toledo Municipal Court. For the following reasons, we conclude that the "judgment" sought to be appealed is not one that is final and appealable.

On July 24, 1984, the municipal court ruled on matters relating to an earlier default judgment which had been entered against defendants-appellees and which, at some later point, had been vacated. The July 24th ruling appears to have been directed to motions to correct and clarify the record as to what it was the trial court had intended to do in granting and then vacating the previous default judgment. On August 17, 1984, appellant filed a motion for reconsideration, asking the court to reconsider its ruling of July 24th and requesting a hearing on the matter. Subsequently, on August 21, 1984, appellant filed its notice of appeal from the July 24th "clarification" order. Despite its lack of jurisdiction after the notice of appeal was filed, the trial court, on August 30th, granted the requested hearing, which was held on September 26, 1984. On October 19, 1984, the trial court "reaffirmed" its July 24th ruling.

The July 24th order, the order from which this appeal has been taken, is handwritten in ink on a 15 x 10 inch case file-envelope. It appears as follows:

"7/24/84. In ruling on its Pltf's motion # 84-631 the court finds, that although Defts' motion # 83-682 filed on 6-2-83 makes reference only to George Hofmann DBA Hofmann Furniture Store, the court in its entry of 6-8-83 nevertheless states in part as follows: 'Defts' motion # 83-682 to vacate default judgment entered on 4-26-83 is found well-taken & granted and it is hereby ordered that said default judgment is vacated & set aside.'

"The default judgment entry of 4-26-83 granted a default judgment against all defendants including Frank Riege and therefore the vacation of that default judgment on 6-8-83 applied to all defendants.

"The court also transferred the entire case, including all the parties, to the court of common pleas for determination of all matters against all parties.

"/s/ Judge Robt. W. Penn"

Two deficiencies exist in this "entry," though only one of them prevents it from being a final appealable judgment or order for purposes of appellate jurisdiction.

I

The first problem lies in the form of the "judgment." Aside from various other entries on the same file-envelope, all of which are written in ink but with an occasional typewritten note, no separate document (a "judgment entry") has been separately filed as such. ¹ It is, therefore, difficult to say that there is an identifiable "judgment" or "order." Arguably, the handwritten notations here are not even the kind of "half-sheet" entry commonly used, but frequently criticized. See Hall v. K.V.V. Enterprises (1984), 15 Ohio App.3d 137, 140, 473 N.E.2d 833 (Whiteside, J., dissenting).

Whether cryptically scribbled notations on a case file-envelope suffice, in form, as a proper "judgment/journal entry" for purposes of final appealability is at least open to serious doubt. Civ.R. 54(A) does little more than define "judgment" as including "a decree and any order from which an appeal lies." The language of Civ.R. 58, however, implies the formal "preparation" of a written journal or judgment entry by trial courts. Civ.R. 58 mandates, in pertinent part:

"* * * [U]pon a general verdict of a jury, or upon a decision announced, the court shall promptly cause the judgment to be prepared and, the court having signed it, the clerk shall thereupon enter it. A judgment is effective only when filed with the clerk for journalization. * * *" (Emphasis added.)

In this regard, too, M.C.Sup.R. 7 states:

"The judgment entry specified in Civil Rule 58 and in Criminal Rule 32[B] shall be journalized within thirty days of the judgment. If such entry is not prepared and presented for journalization by counsel, it shall be prepared by the court and filed with the clerk for journalization." (Emphasis added.)

Many cases suggest that Civ.R. 58 requires the drafting of a separate document, complete in itself, which incorporates the order, decree or determination of the court. ² They further suggest that this document must be filed separately from other material with the clerk of the trial court who is responsible for its journalization. The underlying premise here is that a judge speaks as the court only through journalized judgment entries. See, e.g., Carter v. Johnson (1978), 55 Ohio App.2d 157, 380 N.E.2d 758 [9 O.O.3d 323].

Mere "notations" on case jackets are insufficient to rise to the dignity and finality of properly drafted judgment entries filed with the clerk for journalization. Civ.R. 58; see, e.g., Columbus v. McCreary (1981), 3 Ohio App.3d 216, 444 N.E.2d 436; Lima v. Elliott (1964), 6 Ohio App.2d 243, 217 N.E.2d 878 [35 O.O.2d 427]. A document not labeled "judgment" or "judgment entry," nor unequivocally intended to be a judgment, does not constitute a "judgment" in the formal sense. This is often true where no separate document is ever filed by the court. Cf. State v. Tripodo (1977), 50 Ohio St.2d 124, 126, 363 N.E.2d 719 [4 O.O.3d 280].

In Peters v. Arbaugh (1976), 50 Ohio App.2d 30, 361 N.E.2d 531 [4 O.O.3d 17], the court stated, in the syllabus:

"Before a document filed by a judge in a civil action can qualify under Civ.R. 58 as a judgment from which an appeal can be taken, it must contain a sufficiently definitive formal statement showing an intent to effect a termination of the case." (Emphasis added.)

Indeed, a "judgment is final, effective and imbued with a permanent character when filed with the clerk [of the trial court] pursuant to Civ.R. 58." (Emphasis added.) Cale Products, Inc. v. Orrville Bronze & Alum. Co. (1982), 8 Ohio App.3d 375, 457 N.E.2d 854 (paragraph two of the syllabus). But there is more to a "judgment" than merely its form as a separate document. As the court noted in Peters v. Arbaugh, supra, the document's language must reasonably indicate an intent to effect "a termination of the case." Although these sentiments regarding the form and character of a formal judgment might appear self-evident, confusion has manifested itself in the ambivalent distinction between a court's "decision" and its "judgment." See L.T.M. Builders v. Jefferson (1980), 61 Ohio St.2d 91, 399 N.E.2d 1210 [15 O.O.3d 127]; Millies v. Millies (1976), 47 Ohio St.2d 43, 350 N.E.2d 675 [1 O.O.3d 26]; Peters v. Arbaugh, supra; Shore v. Chester (1974), 40 Ohio App.2d 412, 321 N.E.2d 614 [69 O.O.2d 368].

The question is not only "when is a judgment a judgment?"--but also: "what constitutes a judgment?" See Millies v. Millies, supra, 47 Ohio St.2d at 44, 350 N.E.2d 675. The question, in each case, is essentially sui generis. Id. However, insofar as this distinction between "decisions" and "judgments" is concerned, the current wisdom appears to hold that while Civ.R. 58 does not require a court's "judgment" to be incorporated on a written document separate from its "decision," the better practice is clearly for a trial court to file a separate...