[Cite as Covatch v. Cent. Ohio Sheltie Rescue, Inc., 2016-Ohio-1241.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Veronica Wagner Covatch et al., :
Plaintiffs-Appellees, : No. 15AP-699
(M.C. No. 2014CVF 24571)
v. :
(REGULAR CALENDAR)
Central Ohio Sheltie Rescue, Inc. et al., :
Defendants-Appellants. :
D E C I S I O N
Rendered on March 24, 2016
On brief: James H. Banks, for appellees. Argued: Nina M.
Najjar
On brief: John A. Bell, for appellants. Argued: John A.
Bell
APPEAL from the Franklin County Municipal Court
LUPER SCHUSTER, J.
{¶ 1} Defendants-appellants, Central Ohio Sheltie Rescue, Inc. ("COSR") and
Penny Sanderbeck, appeal from an order of possession of the Franklin County Municipal
Court granting the complaint in replevin of plaintiffs-appellees, Veronica Wagner Covatch
and Michelle Wilson. For the following reasons, we dismiss for lack of jurisdiction.
I. Facts and Procedural History
{¶ 2} On July 28, 2014, appellees filed a complaint against appellants asserting
causes of action for replevin, conversion, piercing the corporate veil, and money damages
arising from the possession of an American Kennel Club ("AKC") Shetland Sheepdog with
the AKC registered name Legacies Pipe Dream and nickname Piper. Appellees alleged in
the complaint that they are the co-owners of Piper, that Piper is implanted with an
identifying microchip, and that appellants took possession of Piper and refused to return
No. 15AP-699 2
her to appellees. Further, appellees alleged in the complaint that Piper is worth
approximately $5,000.
{¶ 3} Pursuant to R.C. 2737.03, appellees filed with their complaint affidavits in
replevin. In her affidavit, Covatch averred she bred Piper and registered her at birth. Due
to travel needs in December 2013, Covatch averred she made arrangements for Piper to
stay with an acquaintance identified as Cheavaen with the understanding that Cheavaen
would return Piper to Covatch in April 2014. However, on April 17, 2014, the Franklin
County Animal Shelter ("the shelter") took possession of Piper after Piper got loose from
Cheavaen's fenced-in yard. Covatch further averred she did not learn of Piper's placement
in the shelter until April 22, 2014. According to her affidavit, immediately upon learning
of Piper's placement in the shelter, Covatch contacted the shelter which informed her it
had given Piper to COSR, operated by Sanderbeck. That same day, Covatch averred she
contacted Sanderbeck both by phone and email to make demand for Piper's return.
Despite providing ownership documentation and verifying Piper's microchip
identification, Covatch averred Sanderbeck refused to return Piper to her.
{¶ 4} Contemporaneous with their complaint, appellees also filed a motion for an
order of immediate possession. The trial court granted the motion and ordered
appellants to return Piper to appellees. In lieu of returning Piper, however, appellants
posted a counter-replevin bond of $10,000. In their answer filed September 2, 2014,
appellants admitted they had not returned Piper but denied that appellees were the
rightful owners of Piper.
{¶ 5} On October 14, 2014, appellants filed a motion for partial judgment on the
pleadings seeking to dismiss the fraud claims and the claims against Sanderbeck in her
individual capacity. The trial court denied the motion for partial judgment on the
pleadings in a November 18, 2014 entry.
{¶ 6} After obtaining leave from the trial court, appellees filed an amended
complaint asserting additional claims of state law violations, due process violation, fraud,
unjust enrichment, and conspiracy. Appellees also named additional defendants,
including Franklin County, Franklin County Commissioner Marilyn Brown, Franklin
County Commissioner Paula Brooks, Franklin County Commissioner John O'Grady,
Franklin County Dog Shelter, and Deborah L. Finelli in her individual capacity and/or in
No. 15AP-699 3
her capacity as Director of the Franklin County Department of Animal Care and Control
(collectively "county defendants"). In their amended complaint, appellees sought
injunctive relief and replevin, $15,000 in compensatory and/or punitive damages, and
reasonable attorney fees.
{¶ 7} On March 12, 2015, appellants filed a motion for a protective order, alleging
appellees were responsible for a "campaign of harassment and bullying," including an
alleged burglary of Sanderbeck's home, harassing telephone calls, and threatening posts
on social media. (Motion for Protective Order, 2.) Appellees responded in an April 2,
2015 memorandum contra denying they participated in the activity appellants alleged in
their motion.
{¶ 8} On March 17, 2015, the newly added county defendants filed a motion to
dismiss based on statutory immunity.
{¶ 9} On June 18, 2015, appellants filed counterclaims against appellees,
asserting causes of action of contract interference, advantageous relationship
interference, defamation, injunctive relief, burglary, theft, and criminal damaging, and
false light invasion of privacy, seeking money damages and other appropriate relief. In
response, appellees filed a motion to strike appellants' counterclaims.
{¶ 10} At a July 23, 2015 hearing on the replevin action, the trial court indicated it
was the trial court's intent to dismiss the county defendants and to grant appellees'
motion to strike the counterclaims. At the conclusion of the replevin hearing, the trial
court issued an order of possession requiring appellants to return Piper to appellees that
same day. In the final order of possession, the trial court noted it would "file a separate
entry journalizing the Court's disposition of" the other matters it discussed at the
beginning of the replevin hearing. (July 23, 2015 Final Order of Possession.)
{¶ 11} Appellees filed a timely notice of appeal from the trial court's July 23, 2015
final order of possession. Additionally, appellants sought a stay of the trial court's final
order of possession, which this court denied in an entry filed August 5, 2015. In a July 24,
2015 entry, the trial court continued the matter for a trial on the remaining claims,
scheduling the trial for August 27, 2015.1
1It appears from the trial court's online docket that the trial court, in an entry dated August 21, 2015,
granted appellants' motion to stay further proceedings pending this appeal.
No. 15AP-699 4
II. Assignments of Error
{¶ 12} Appellants assign the following errors for our review:
[1.] The trial court erred to the substantial prejudice of the
animal rescue appellants and abused its discretion when it
refused to allow them to present their evidence and witnesses
at the July 23, 2015, hearing on the order of possession.
[2.] The trial court erred to the substantial prejudice of the
animal rescue appellants and abused its discretion when it
granted an order of possession to the plaintiffs-appellees, the
breeder and an alleged 'co-owner' contracted to breed and
show the dog, for a dog that had been unconditionally turned
over to the animal rescue appellants in the ordinary course of
the shelter's operations and in compliance with the Ohio
Revised Code, after being impounded as an unlicensed stray,
and unclaimed in the county animal shelter for longer than
the prescribed holding time.
[3.] The trial court erred to the substantial prejudice of the
animal rescue appellants and abused its discretion when it
denied the appellants motion for discovery sanctions and in
limine despite the plaintiffs-appellants knowing failure and
willful refusal to respond to proper discovery requests.
[4.] The trial court erred to the substantial prejudice of the
animal rescue appellants and abused its discretion when it
overruled their timely objection to the plaintiffs-appellees'
submission of hearsay and evidence not disclosed in discovery
despite proper requests.
[5.] The trial court erred to the substantial prejudice and
abused its discretion when it granted the plaintiff-appellees'
motion to strike the counterclaims filed by defendant-
appellant Central Ohio Sheltie Rescue, Inc., and denied the
motion for leave to file and serve the counterclaims, some of
which had accrued well after the original pleadings were filed.
III. Final Appealable Order
{¶ 13} On August 20, 2015, appellees moved to dismiss the appeal, contending the
trial court's decision is not final and appealable. Because this court's jurisdiction turns on
whether appellants appealed from a final appealable order, we first address appellees'
motion.
No. 15AP-699 5
{¶ 14} Under the Ohio Constitution, Article IV, Section 3(B)(2), this court's
jurisdiction on appeal is limited to a review of final orders of lower courts. Final orders
are those that "dispos[e] of the whole case or some separate and distinct branch thereof."
Lantsberry v. Tilley Lamp Co., Ltd., 27 Ohio St.2d 303, 306 (1971). A trial court order is
final and appealable only if it satisfies the requirements in R.C. 2505.02, and, if
applicable, Civ.R. 54(B).
{¶ 15} This is a multi-party, multi-claim case. There is no dispute that the trial
court's order contains the Civ.R. 54(B) language that there is no just reason for delay.
However, the inclusion of the Civ.R. 54(B) language "does not turn an otherwise non-final
order into a final appealable order." Noble v. Colwell, 44 Ohio St.3d 92, 96 (1989). Thus,
we must still determine whether the trial court's order is a final order as defined in R.C.
2505.02(B). The only division with arguable application would be R.C. 2505.02(B)(4).
{¶ 16} An order is final and appealable under R.C. 2505.02(B)(4) if it "grants or
denies a provisional remedy," provided the order meets two conditions. Initially, the
order subject of appeal must determine the action with respect to the provisional remedy
and prevent a judgment in favor of the appealing party regarding the provisional remedy.
R.C. 2505.02(B)(4)(a). Secondly, an appeal following judgment must not afford a
meaningful and effective remedy to the appealing party. R.C. 2505.02(B)(4)(b).
{¶ 17} R.C. 2505.02(A)(3) defines a provisional remedy as "a proceeding ancillary
to the action, including, but not limited to, a proceeding for a preliminary injunction,
attachment, discovery of privileged matter, suppression of evidence," or prima facie
showings with respect to specified statutes. We need not decide whether an order of
possession in a replevin action is a provisional remedy because even if it is, here an appeal
following judgment on all remaining claims will afford a meaningful and effective remedy
to appellants.
{¶ 18} Though Ohio law considers a dog to be personal property, we are mindful of
the less tangible benefits of animal ownership, including companionship, that are difficult
to quantify. In some situations, deprivation of an animal's companionship for a
protracted period of time may lessen the effectiveness of an appeal following judgment.
To the extent the actual, physical possession of the dog is the linchpin of whether an
appeal following judgment on all claims would afford a meaningful and effective remedy,
No. 15AP-699 6
we note, as appellees also noted in their motion to dismiss, that appellants did not seek
declaratory judgment affirming they were the owners of Piper. Indeed, at oral argument,
counsel for appellants stated appellants were not seeking "the physical return of this dog."
(February 24, 2016 Oral Argument, 9:41:24.) Instead, appellees assert their interest in
appealing the final order of possession lies in clarifying the ownership of a dog when it is
transferred from a shelter to a rescue organization.
{¶ 19} Appellees have claims pending in the trial court, including conspiracy,
unjust enrichment, fraud, due process violation, state law violation, conversion, and
damages on the replevin claim. The day after appellants filed their notice of appeal, the
trial court scheduled a trial date for appellees' remaining claims. Because appellants are
not seeking physical possession of the dog, appellants cannot argue that an appeal at a
later date would affect any interest they may have in the dog's companionship. Appellants
will still be able to argue the merits regarding the moment ownership transferred in a
later appeal. Thus, if we delay our review of the order of possession issued in the replevin
action until after appellees' action is fully adjudicated, appellants retain the right to a
future appeal. Burt v. Harris, 10th Dist. No. 03AP-194, 2004-Ohio-756, ¶ 12.
{¶ 20} In sum, even though the trial court included the Civ.R. 54(B) language in its
final order of possession, the order is not a final appealable order under R.C. 2505.02.
IV. Disposition
{¶ 21} Based on the foregoing reasons, appellants do not appeal from a final
appealable order of the trial court, and this court lacks jurisdiction to consider appellants'
assignments of error. Accordingly, we grant appellees' motion and dismiss the appeal for
lack of jurisdiction.
Motion to dismiss granted;
appeal dismissed.
BROWN and SADLER, JJ., concur.