[Cite as Huntington Natl. Bank v. Greer, 2015-Ohio-3403.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
THE HUNTINGTON NATIONAL BANK,
PLAINTIFF-APPELLANT/
CROSS-APPELLEE, CASE NO. 14-15-01
v.
SHAWN M. GREER,
DEFENDANT-APPELLEE/
CROSS-APPELLANT,
-and-
KELLY C. GREER, ET AL., OPINION
DEFENDANTS-APPELLEES/
CROSS-APPELLEES.
Appeal from Union County Common Pleas Court
Trial Court No. 13-CV-0118
Appeal and Cross-Appeal Dismissed
Date of Decision: August 24, 2015
APPEARANCES:
Kerin Lynn Kaminski and Rachael L. Israel for
Appellant/Cross-Appellee
Samir B. Dahman for Appellee/Cross-Appellant
Case No. 14-15-01
ROGERS, P.J.
{¶1} Plaintiff-Appellant/Cross-Appellee, The Huntington National Bank
(“Huntington”), appeals the judgment of the Court of Common Pleas of Union
County. On appeal, Huntington argues that the court erred by: (1) finding that
Defendant-Appellee/Cross-Appellant, Shaun Greer, substantially performed under
the terms of the settlement agreement; (2) finding that Huntington breached the
settlement agreement; (3) awarding Greer attorney fees; (4) and failing to grant
Huntington’s claims for breach of the promissory note and for foreclosure. On his
cross-appeal, Greer argues that the trial court erred by not awarding him lost
profits he claims were a direct result of the foreclosure filing. For the reasons that
follow, we dismiss the appeal and cross-appeal for lack of a final appealable order.
{¶2} Huntington filed a complaint for money and foreclosure on April 19,
2013. In the complaint, Huntington alleged that Greer had failed to make
payments under a promissory note, secured by a piece of real property, held by
Huntington. Further, Huntington alleged that Greer had breached a settlement
agreement that was reached between the parties in a previous foreclosure action
involving the same promissory note. Greer filed his answer on August 7, 2013.
Greer was later permitted to file an amended answer to file a counterclaim, which
was filed on October 10, 2013. In his counterclaim, Greer alleged, among other
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claims, that Huntington had breached the settlement agreement reached in the first
foreclosure action.
{¶3} The magistrate issued its decision on June 23, 2014. The magistrate
recommended that judgment be entered in favor of Greer on all of Huntington’s
claims based on the finding that Huntington, and not Greer, had breached the
settlement agreement. Further, the magistrate recommended that judgment be
entered in favor of Greer on his counterclaim for breach of the settlement
agreement, but that judgment be entered in favor of Huntington on Greer’s other
claims. Both parties filed objections to the magistrate’s decision, and the trial
court filed its decision on August 18, 2014. The court ordered a hearing on
attorney fees, but did not issue an order on the remaining claims. The court
awarded Greer attorney fees in the amount of $119,186.50 on December 22, 2014.
{¶4} Huntington and Greer filed these timely appeals, presenting the
following assignments of error for our review.
Appellant/Cross-Appellee’s Assignment of Error No. I
THE TRIAL COURT ERRED IN FINDING GREER
SUBSTANTIALLY PERFORMED UNDER THE
SETTLEMENT AGREEMENT; ABSENT GREER’S
SUBSTANTIAL PERFORMANCE, HUNTINGTON IS
ENTITLED TO JUDGMENT IN ITS FAVOR THAT GREER
BREACHED THE SETTLEMENT AGREEMENT.
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Case No. 14-15-01
Appellant/Cross-Appellee’s Assignment of Error No. II
THE TRIAL COURT ERRED IN FINDING THAT
HUNTINGTON BREACHED THE SETTLEMENT
AGREEMENT.
Appellant/Cross-Appellee’s Assignment of Error No. III
THE TRIAL COURT ERRED IN AWARDING ATTORNEY
FEES TO GREER WHERE THE SETTLEMENT
AGREEMENT ITSELF DID NOT PROVIDE FOR THE
PAYMENT OF FEES.
Appellant/Cross-Appellee’s Assignment of Error No. IV
THE TRIAL COURT ERRED IN NOT GRANTING
HUNTINGTON JUDGMENT ON ITS CLAIMS FOR BREACH
OF THE PROMISSORY NOTE AND FOR FORECLOSURE.
Appellee/Cross-Appellant’s Assignment of Error No. I
THE TRIAL COURT ERRED IN NOT AWARDING LOST
PROFITS TO MR. GREER BECAUSE MR. GREER
ESTABLISHED HIS PERSONAL LOST PROFITS WITH
REASONABLE CERTAINTY.
{¶5} Before we can reach the merits of either party’s assignments of error,
we must preliminarily decide whether the trial court’s entry was a final, appealable
order. The Ohio Court of Appeals is only vested with appellate jurisdiction over
final and appealable orders. Ohio Constitution, Article IV, Section 3(B)(2). “If a
judgment appealed is not a final order, an appellate court has no jurisdiction to
consider it and the appeal must be dismissed.” State v. O’Black, 3d Dist. Allen
No. 1-09-46, 2010-Ohio-192, ¶ 4. Moreover, this court is “bound to raise any
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jurisdictional questions not raised by the parties.” Levinsky v. Boardman Twp.
Civ. Serv. Comm., 7th Dist. Mahoning No. 04 MA 36, 2004-Ohio-5931, ¶ 26.
{¶6} This court has “interpreted Civ.R. 53 to require that when approving a
magistrate’s decision, the [trial] court must not only order that the findings of the
magistrate have been adopted, but it must go one step further and enter its own
judgment on the issues originally submitted to the court.” (Emphasis sic.)
Motycka v. Motycka, 3d Dist. Van Wert No. 15-2000-03, 2000 WL 1521205, *2
(Oct. 12, 2000), citing Reiter v. Reiter, 3d Dist. Hancock No. 5-98-32, 1999 WL
378354 (May 11, 1999). “Although the court need not ‘parrot the magistrate’s
findings,’ the court must, at the very least, address the issues and express the
outcome and remedy in the underlying action.” Id. “The content of the entry
‘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.’
” Id., quoting Walker v. Walker, 9th Dist. Summit No. 12978, 1987 WL 15591, *2
(Aug. 5, 1987).
{¶7} Further, Civil Rule 54(A) provides: “ ‘Judgment’ as used in these
rules includes a decree and any order from which an appeal lies as provided in
section 2505.02 of the Revised Code. A judgment shall not contain a recital of
pleadings, the magistrate’s decision in a referred matter, or the record of the
proceedings.” (Emphasis added.)
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{¶8} Here, the trial court ruled on both parties’ objections to the
magistrate’s decision, but the only “order” issued was to have a hearing on
attorney fees. Thus, the court failed to address the other claims before it in its
entry. “An order that leaves issues unresolved and contemplates further action is
not a final appealable order.” Brotherwood v. Gonzalez, 3d Dist. Mercer No. 10-
06-12, 2006-Ohio-4551, ¶ 6, citing State ex rel. Keith v. McMonagle, 103 Ohio
St.3d 430, 2004-Ohio-5580, ¶ 4, quoting Bell v. Horton, 142 Ohio App.3d 694,
696 (4th Dist.2001). Thus, we find that the trial court’s entry does not dispose of
all the claims against both Huntington and Greer. Consequently, we lack
jurisdiction to decide the merits of this case.
{¶9} Furthermore, this court notes its growing concern over trial court
magistrates and their understanding of their role in the judicial system.
Pursuant to Civil Rule 53, a magistrate may be appointed by a court
of record to ‘assist courts of record’ to the limited extent of the
authorization contained in the order of reference. ‘Subject to the
terms of the relevant reference, a magistrate may enter orders
without judicial approval if necessary to regulate the proceedings
and if not dispositive of a claim or defense of a party.’ Civ.R.
53(D)(2)(a)(i). Magistrates’ orders are effective without further
judicial action.
However, the authority to issue a magistrate’s order must be
distinguished from a magistrate’s decision, which ‘* * * is not
effective unless adopted by the court.’ Civ.R. 53(D)(4)(A).
(Footnote omitted.) Roychoudhury v. Roychoudhury, 3d Dist. Union No. 14-14-
19, 2015-Ohio-2213, ¶ 25-26 (Rogers, P.J., concurring).
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{¶10} “With increasing frequency this court has noticed magistrates’
decisions, which are articulated in terms of authority and decisiveness, and which
express an attitude of finality.” Id. at ¶ 27. In this case, the magistrate’s decision
states eight times, in bold print and capitalized letters either: “It is therefore
ORDERED, ADJUDGED, AND DECREED” or “It is further ORDERED,
ADJUDGED, AND DECREED.” (Emphasis sic.) (Docket No. 115, p. 11-12).
{¶11} Every member of the judicial system must understand and act
accordingly with their position in the system. This includes magistrates. “To
presume a higher authority, or even to convey an appearance of more authority,
than that which is authorized by law and the Civil Rules causes participants in the
legal system to question the role of the trial judge.” Roychoudhury at ¶ 28
(Rogers, P.J., concurring). “The final responsibility lies with the trial judge, and
no conduct should be permitted which allows anyone to question that role.” Id.,
citing Vian v. Vian, 3d Dist. Mercer No. 10-13-05, 2013-Ohio-4560, ¶ 54 (Rogers,
J., concurring).
{¶12} Accordingly, for the aforementioned reasons, the appeal and cross-
appeal are dismissed for lack of jurisdiction
Appeal and Cross-Appeal
are Dismissed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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