[Cite as Schoeneman v. Minor, 2011-Ohio-5460.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LOUIS W. SCHOENEMAN JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J,
Hon. John W. Wise, J.
v.
ROBIN MINOR Case No. 2011CA00063
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Probate Division, Case No.
209849
JUDGMENT: Dismissed
DATE OF JUDGMENT: October 24, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GERALD L. BAKER DONALD GALLICK
3711 Whipple Avenue, NW 190 North Union Street
Canton, OH 44718 #102
Akron, OH 44304
Stark County, Case No. 2011CA00063 2
Farmer, J.
{¶1} This case originated upon the filing of a complaint for the concealment of
assets filed by appellee, Louis Schoeneman, against appellant, Robin Minor. In his
brief at 13-15, appellee raises the issue as to whether the basis for the appeal, the trial
court's March 14, 2011 judgment entry, is a final appealable order. For the following
reasons, we find that it is not.
{¶2} Ohio law provides that appellate courts have jurisdiction to review only
final orders or judgments. See, generally, Section 3(B)(2), Article IV, Ohio Constitution;
R.C. 2505 .02. If an order is not final and appealable, an appellate court has no
jurisdiction to review the matter and it must be dismissed.
{¶3} To be final and appealable, an order must comply with R.C. 2505.02.
Subsection (B) provides the following in pertinent part:
{¶4} "(B) An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
{¶5} "(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶6} "(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment."
{¶7} A complaint for the concealment of assets was filed on August 31, 2010
wherein appellee requested the appearance of appellant for hearing and costs and
attorney fees:
{¶8} "WHEREFORE, he asks that a writ of citation be issued against Robin A.
Minor requiring her to appear before said Court forthwith, then and there to be
Stark County, Case No. 2011CA00063 3
examined under oath touching the matters set forth in the Complaint, and that such
other proceedings may be had in the premises as are authorized by law, including the
cost of this action and attorney fees."
{¶9} Following a hearing on February 28, 2011, the trial court issued the
following order:
{¶10} "Accordingly, the Court finds Robin A. Minor guilty of concealment of the
Martin and Springfield firearms as alleged in the Complaint for Concealment of Assets.
{¶11} "Ohio Revised Code § 2109.52 states that 'if such person is found guilty,
the probate court . . . may order the return of the specific thing concealed. . .' The Court
hereby ORDERS Robin A. Minor to return to Attorney Baker the Marlin and Springfield
firearms listed in Items 16-23 of the Schedule of Assets within ten (10) days of the date
of this Judgment Entry. Attorney Baker, attorney for the Estate, shall provide notice to
the Court stating whether this Order has been complied with." Judgment Entry filed
March 14, 2011.
{¶12} An award for attorney fees is to be awarded to the complainant in an asset
concealment action. R.C. 2109.50; R.C. 2109.52; In the Matter of: The Estate of Lena
B. Simons, Deceased, Trumbull App. No. 2004-T-0066, 2005-Ohio 2362, ¶26. In this
case, appellee was the complaining party and therefore was entitled to seek attorney
fees as the fiduciary of the estate. Id. In its March 14, 2011 judgment entry, the trial
court failed to make an award as to the costs and attorney fees properly prayed for in
the complaint.
{¶13} In addition, the very language of the trial court's judgment entry was
conditional. It ordered the return of the property within ten days of the order, by March
Stark County, Case No. 2011CA00063 4
24, 2011, and ordered appellee's attorney to provide notice to the trial court that the
order hads been complied with.
{¶14} On March 22, 2011, appellant filed a notice of appeal, along with a motion
to stay the judgment. The trial court did not address the stay request. On May 20,
2011, appellant filed a motion for stay with this court. By judgment entry filed June 10,
2011, this court denied the stay as "moot." The record does not suggest why this court
considered the request to be moot.
{¶15} As our brethren from the Twelfth District in In re: Estate of Meyer (1989),
63 Ohio App. 3d 454, pointed out, although an asset concealment proceeding is a
special proceeding involving a substantive right and a determination therefrom qualifies
as a final appealable order, the order must include a finding of guilty and the imposition
of penalties. The failure to address penalties, i.e., costs and attorney fees, sub judice
render the order herein non-final.
{¶16} Based upon the foregoing, this appeal is dismissed.
By Farmer, J.
Wise, J. concur and
Hoffman, P.J. concurs separately.
_s/ Sheila G. Farmer______________
_s/ John W. Wise_____________________
_______________________________
JUDGES
Stark County, Case No. 2011CA00063 5
Hoffman, P.J., concurring
(¶17) I concur in the majority’s decision to dismiss this appeal for want of a final
appealable order.
(¶18) I write separately to note I do so only because of the lack of a decision as
to attorney fees. Unlike the majority, I do not find the inclusion of language in the
judgment entry concerning notice to the court of compliance renders the judgment
conditional; therefore, not final.
________________________________
HON. WILLIAM B. HOFFMAN
[Cite as Schoeneman v. Minor, 2011-Ohio-5460.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LOUIS W. SCHOENEMAN :
:
Plaintiff-Appellee :
:
v. : JUDGMENT ENTRY
:
ROBIN MINOR :
:
Defendant-Appellant : CASE NO. 2011CA00063
For the reasons stated in our accompanying Memorandum-Opinion, this appeal
is dismissed. Costs to appellant.
_s/ Sheila G. Farmer______________
_s/ John W. Wise_________________
_s/ William B. Hoffman_____________
JUDGES