[Cite as Faraj v. Qasem, 2016-Ohio-3261.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103374
ALI FARAJ
PLAINTIFF-APPELLEE
vs.
HAMDI QASEM, ET AL.
DEFENDANT-APPELLEES
[Appeal by Samir Mohammed
Defendant-Appellant]
JUDGMENT:
DISMISSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-12-794741
BEFORE: Stewart, J., E.T. Gallagher, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: June 2, 2016
ATTORNEY FOR APPELLANT
Monica E. Russell
McFadden & Freeburg Co., L.P.A.
6690 Beta Drive, Suite 320
Mayfield Village, OH 44143
ATTORNEYS FOR APPELLEES
For Ali Faraj
Jason D. Hochman
Thomas A. Barni
Dinn, Hochman & Potter, L.L.C.
5910 Landerbrook Drive, Suite 200
Mayfield Heights, OH 44124
For Hamdi Qasem
Nicholas E. Longauer
43 East Bridge Street, Suite 101
Berea, OH 44107
Also listed:
209 E. Bridge, L.L.C.
Statutory Agent
3900 Woodland Avenue
Cleveland, OH 44115
3585 L.L.C.
WDW Agent Svcs Inc., Statutory Agent
1220 West Sixth Street, Suite 660
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Defendant-appellant Samir Mohammed appeals from the court’s refusal to
grant him relief from a default judgment entered against him and in favor of
plaintiff-appellee Ali Faraj. We lack a final order and must dismiss this appeal.
{¶2} This case involves Faraj’s action against multiple defendants, including
Mohammed, on a promissory note and a demand for foreclosure on property used as
collateral on the note. A magistrate granted Faraj default judgment and money damages
against Mohammed and other defendants who are not parties to this appeal. The
magistrate’s decision certified that there is “no just reason for delay,” most likely because
a claim made against the Cuyahoga County Fiscal Officer (denominated in the complaint
as the “County Treasurer”) remained for adjudication. Mohammed objected to the
magistrate’s decision. The court approved and adopted the magistrate’s decision, but
without including the “no just reason for delay” language in its judgment entry.
Mohammed filed a Civ.R. 60(B) motion for relief from judgment, but the court denied the
motion. Faraj then filed a Civ.R. 41(A)(1) notice that he was voluntarily dismissing
without prejudice “all defendants.”
{¶3} After briefing had been completed, we asked the parties to file supplemental
briefs on two issues: (1) whether the court’s failure to include the Civ.R. 54(B) “no just
reason for delay” language in its order adopting the magistrate’s decision to grant default
judgment meant that the default judgment was not final for purposes of Civ.R. 54(B); and
(2) if the default judgment was not a final order, whether Faraj’s July 15, 2015 notice of
voluntary dismissal of “all defendants” operated as a dismissal of the nonfinal default
judgment entered against appellant Samir Mohammed.
{¶4} As an appellate court, our jurisdiction applies only to “final” judgments or
orders of lower courts. See Article IV, Section 3(B)(2) of the Ohio Constitution; Gen.
Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). An
order is considered “final” if it “affects a substantial right in an action that in effect
determines the action and prevents a judgment.” R.C. 2505.02(B)(1).
{¶5} As used in R.C. 2505.02(B)(1), the word “action” refers to all claims asserted
against all parties. See Civ.R. 54(B) (“In the absence of a determination that there is no
just reason for delay, any order or other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties, shall not terminate the action as to any of the claims or parties * * *.”) The court
may, however, make final what would otherwise be nonfinal by certifying that “there is
no just reason for delay.” Id.; Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86,
88, 541 N.E.2d 64 (1989).
{¶6} The magistrate’s decision contained the Civ.R. 54(B) certification, but the
court’s judgment entry approving the magistrate’s decision did not. This means that the
default judgment entered against Mohammed was nonfinal. We addressed this same
issue in Charter One Bank v. Tutin, 8th Dist. Cuyahoga No. 86556, 2006-Ohio-1361,
where we held that a court’s judgment entry approving and adopting a magistrate’s
decision without an express certification of no just reason for delay under Civ.R. 54(B)
did not create a final order because not all of the claims against all of the parties had been
adjudicated. Id. at ¶ 5. See also United Cos. Lending Corp. v. Robinson, 134 Ohio
App.3d 96, 99, 730 N.E.2d 423 (8th Dist.1999) (court’s adoption of a magistrate’s
decision finding no just reason for delay without incorporating the certification language
into the judgment entry adopting the magistrate’s decision is “insufficient to comply with
the judge’s duty under Civ.R. 54(B).”).
{¶7} Although the default judgment was nonfinal, Mohammed asked the court to
grant him relief from it under Civ.R. 60(B). The court had no authority to grant relief
from a nonfinal judgment or order because Civ.R. 60(B), by its own terms, applies only to
a “final judgment, order, or proceeding[.]” In Harper v. MetroHealth Med. Ctr., 8th
Dist. Cuyahoga No. 81048, 2002-Ohio-5861, we considered a similar issue where the
court granted summary judgment to less than all defendants in a case and failed to certify
no just reason for delay. Instead of appealing, the aggrieved party filed a motion for
relief from judgment. After the court refused to grant relief from judgment, an appeal
followed. We held that the motion for summary judgment was not final (the court did
certify that there was no just reason for delay), so the court could not grant relief from
judgment. Id. at ¶ 5. See also Hadassah v. Schwartz, 1st Dist. Hamilton No. C-110699,
2012-Ohio-3910, ¶ 10 (finding that trial court could not entertain a Civ.R. 60(B) motion
for relief from judgment from a nonfinal default judgment).
{¶8} The same applies here. Even though the court in this case purported to deny
relief from the default judgment for substantive reasons, its ruling was nonetheless correct
because the court had no authority under Civ.R. 60(B) to grant relief from a nonfinal
default judgment. Fifth Third Bank v. Rose, 4th Dist. Gallia Nos. 07CA8 and 07CA9,
2008-Ohio-3919, ¶ 12 (“Civ.R. 60(B) is not the proper procedural device a party should
employ when seeking relief from a non-final order.”).
{¶9} Having established that the default judgment was nonfinal, we have to
consider this added wrinkle: after the court denied Mohammed relief from judgment,
Faraj filed a notice of voluntary dismissal without prejudice against “all Defendants.”
By stating that the dismissal was directed towards “all” defendants, that dismissal
included Mohammed and all other defendants against whom interlocutory judgments had
been entered. Hutchinson v. Beazer E., Inc., 8th Dist. Cuyahoga No. 86635,
2006-Ohio-6761, ¶ 32 (“We have consistently followed [the] view that a voluntary
dismissal of the entire case, pursuant to Civ.R. 41(A), dissolves all prior interlocutory
orders made by the trial court in that action * * *.”); Charles Gruenspan Co., L.P.A. v.
Thompson, 8th Dist. Cuyahoga No. 77276, 2000 Ohio App. LEXIS 4783 (Oct. 12, 2000)
(recognizing that a voluntary dismissal, without prejudice, dissolves all interlocutory
orders).
{¶10} The notice of voluntary dismissal terminated the entire case, including the
interlocutory default judgment against Mohammed. There is no case presently before us
to consider on appeal. No matter how unintentional, it appears that Faraj threw the baby
out with the bath water.
{¶11} Appeal dismissed.
It is ordered that appellees recover of said appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, JUDGE
EILEEN T. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR