[Cite as Middleton v. Luna's Restaurant & Deli, L.L.C., 2012-Ohio-348.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DAVID B. MIDDLETON
Plaintiff-Appellee
-vs-
LUNA'S RESTAURANT AND DELI, LLC, ET AL
Defendant-Appellees
JUDGES:
: Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
:
:
: Case No. 2011-CA-00181
:
:
: OPINION
MIKE TABBAA
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2010 CV003251
JUDGMENT: Vacated
DATE OF JUDGMENT ENTRY: January 30, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID B. SPALDING MIKE TABBAA PRO SE
157 Wilbur Drive N.E. 8405 Cherry Hill Lane
North Canton, OH 44720 Broadview Heights, OH 44147
Gwin, P.J.
{1} Defendant-appellant Mike Tabbaa appeals a judgment of the Court of
Common Pleas of Stark County, Ohio, which affirmed the decision of a magistrate
overruling appellant’s motion for relief from judgment. Plaintiff-appellee is David B.
Middleton. Appellant assigns four errors to the trial court:
{2} “I. THE TRIAL COURT ERRED IN PROCEEDING WITH THE CASE
ONCE THE NOTICE OF APPEAL WAS FILED ON JANUARY 7, 2011. THUS, ALL
JUDGMENTS RENDERED AFTER THIS DATE, MOST NAMELY THE DEFAULT
JUDGMENT AGAINST MR. TABBAA ARE VOID AND MUST BE VACATED.
{3} “II. EVEN THOUGH THE TRIAL COURT WAS WITHOUT JURISDICTION
TO PROCEED ON MR. TABBAA’S MOTION FOR RELIEF FROM JUDGMENT, ITS
DENIAL OF SAID MOTION IS IN ERR (sic) AS A MATTER OF LAW.
{4} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN RULING ON
APPELLEE’S SUPPLEMENTAL PLEADINGS BECAUSE APPELLEE NEVER
SOUGHT LEAVE NOR WAS GRANTED LEAVE TO FILE SUCH PLEADINGS.
{5} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN RULING ON THE
SECOND AMENDED AND SUPPLEMENTAL COMPLAINT AND GRANTING
DEFAULT JUDGMENT AGAINST MR. TABBAA BECAUSE HE WAS NOT A NAMED
PARTY DEFENDANT IN THIS PLEADING.”
{6} For the reasons that follow, we vacate the judgment of the trial court.
{7} A review of the docket demonstrates the original personal injury complaint
in this matter was filed September 7, 2010. On October 15, 2010, the court granted a
default judgment in favor of Middleton as to liability only. On October 29, 2010, a
magistrate entered judgment in favor of Middleton in the amount of $242,240.49 plus
costs. On November 10, 2010, counsel for defendant entered an appearance and on
November 15, 2010, objected to the magistrate’s decision of October 29. On December
21, 2010, appellant moved to vacate the default judgment and also to file an answer
instanter. The court overruled both branches of the motion, and on January 7, 2011,
appellant filed a notice of appeal. It appears that appellant did not deposit a supersedes
bond, and the court overruled his motion for stay. Middleton then began to take steps to
execute his judgment while the matter was pending before us.
{8} On February 11, 2011, Middleton filed a document headed “Supplemental
Complaint”, in which he added two defendants and additional claims. On March 22,
2011, Middleton filed a motion for default judgment on the Supplemental Complaint. On
March 25, 2011, Middleton filed a document captioned “Amended and Second
Supplemental Complaint”, adding yet had another defendant. The court granted a
default judgment on the first Supplemental Complaint on March 28, 2011. On May 26,
2011, the court granted a default judgment on the second Supplemental Amended
Complaint.
{9} On August 29, 2011, this court journalized its decision affirming the trial
court’s original judgment. Middleton v. Luna’s Restaurant & Deli, LLC, Fifth District App.
No. S2011-CA-00004, 2011-Ohio-4388, 2011WL3847184.
{10} In this second appeal, appellant argues the trial court lacked jurisdiction to
proceed on the amended and supplemental complaints because the underlying
judgment was pending before this court. Appellee replies a trial court has jurisdiction to
proceed on issues entirely distinct from those raised on appeal.
{11} With few exceptions, a trial court loses jurisdiction over a case once a
notice of appeal is filed. A court may proceed in matters which aid the pending appeal.
In Re: S. J., 106 Ohio St. 3d 11, 2005-Ohio-3215, 829 N.E. 2d 1207, ¶ 9. A court has
jurisdiction to take action to enforce a judgment which is pending on appeal if there is no
stay. Sparks v. Sparks, Twelfth App. No. CA2010-10-096, 2011-Ohio-5746,
20011WL5353081 at footnote 1. A court may consider collateral issues not related to
the merits of the action, such as a motion for sanctions or a motion for criminal
contempt. State ex rel. Hummel v. Sadler, 96 Ohio St. 3d 84, 2002-Ohio-3605, 771
N.E. 2d 853, ¶ 23, citations deleted. A trial court may not assume jurisdiction over
matters inconsistent with the appellate court’s jurisdiction to review, reverse, modify, or
affirm the judgment. State ex rel. Rock v. School Employees Retirement Board, 96 Ohio
St. 3d 206, 2002-Oihio-3957, 772 N.E. 2d 1197, ¶ 8 (per curium).
{12} Some of the matters the trial court dealt with while the first appeal was
pending related to execution of the judgment against the original defendant, and the
court had jurisdiction to do so. However, we find the new causes of action against new
defendants based upon the underlying judgment on appeal before us should have been
stayed for lack of jurisdiction until this court announced its decision. A party cannot
amend or supplement a complaint upon which the trial court has already entered a final
order resolving all the issues.
{13} We find the trial court lacked jurisdiction to proceed on the Supplemental
Complaint and the amended Supplemental Complaint. Accordingly, we vacate the
judgment in question.
{14} The first assignment of error is sustained. The remaining assignments of
error are moot.
{15} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is vacated.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DAVID B. MIDDLETON :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
LUNA'S RESTAURANT
AND DELI, LLC, ET AL :
:
:
Defendants-Appellees : CASE NO. 2011-CA-00181
MIKE TABBAA
Defendant-Appellant
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Stark County, Ohio, is vacated. Costs to appellee.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE