State ex rel. Caldwell v. Gallagher , 2012 Ohio 4608 ( 2012 )

[Cite as State ex rel. Caldwell v. Gallagher, 2012-Ohio-4608.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98317
STATE OF OHIO EX REL. ROBERT CALDWELL, ET
AL.
RELATORS
vs.
JUDGE EILEEN T. GALLAGHER, ET AL.
RESPONDENTS
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion No. 455665
Order No. 458913
RELEASE DATE: October 3, 2012
RELATORS
Robert Caldwell
Frances Caldwell
10618 Drexel Avenue
Cleveland, Ohio 44108
ATTORNEYS FOR RESPONDENTS
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Charles E. Hannan, Jr.
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Relators, Robert Caldwell and Frances Caldwell (the “Caldwells”), are
mortgagors and defendants in an action in foreclosure, Deutsche Bank Natl. Co. v.
Caldwell, Cuyahoga C.P. No. CV-697845, which has been assigned to respondent judge.
They also seek relief in mandamus against respondent clerk of courts.
{¶2} The Caldwells previously appealed an entry in Case No. CV-697845 that
“adopted and incorporated the magistrate’s decision and ordered that ‘plaintiff’s
motions for default and summary judgment are granted. Decree of foreclosure for
plaintiff.’” Deutsche Bank Natl. Co. v. Caldwell, 196 Ohio App.3d 636,
2011-Ohio-4508, 964 N.E.2d 1093, ¶ 4 (8th Dist.) This court dismissed that appeal
for lack of a final appealable order. We held that the trial court: had not adequately
issued a separate and distinct entry; did not specify against which party it entered
default judgment; did not specify against which party it entered summary judgment;
and did not provide the requisite details for a decree of foreclosure.
{¶3} In this action in mandamus, the Caldwells request that this court compel
respondent judge to issue a final appealable order in compliance with this court’s prior
mandate and stop the foreclosure proceedings as well as compel respondent clerk to
provide notice of that order as required by Civ.R. 58(B). For the reasons stated below,
we deny relators’ request for relief in mandamus.
{¶4} After this court issued its opinion in Deutsche Bank, respondent judge
issued an order adopting the magistrate’s decision: granting summary judgment in
favor of plaintiff (Deutsche Bank) against the Caldwells; granting default judgment in
favor of Deutsche Bank against Oasis Properties & Investment L.L.C.; awarding
Deutsche Bank the sum of $90,140.08 plus interest; awarding taxes, etc. to the county
treasurer; awarding costs; issuing a decree of foreclosure and related relief; and stating
“No just Reason for Delay.” December 2, 2011 journal entry in Case No. CV-697845,
at 4.
{¶5} The Caldwells contend that the December 2, 2011 journal entry is not a
final appealable order as required by this court’s opinion in Deutsche Bank and that they
never received this journal entry. They base their argument on the text of the
appearance docket pertaining to the December 2, 2011 journal entry, which provides:
“ORDER ADOPTING MAGISTRATE’S DECISION. OSJ NOTICE ISSUED.”
That is, they argue that the language on the docket does not comply with this court’s
holding in Deutsche Bank that the decree of foreclosure must, inter alia, specify the
parties against whom respondent judge was entering default judgment and summary
judgment.
{¶6} Respondents correctly observe, however, that the court’s journal is
different from the court’s appearance docket. “ Dockets and journals are distinct
records kept by clerks. See R.C. 2303.12.” State, ex rel. White v. Junkin, 80 Ohio
St.3d 335, 337, 1997-Ohio-340, 686 N.E.2d 267. “It is the journal entries that are
signed by the judge, not the docket entries, that control. Cleveland v. Jovanovic, 153
Ohio App.3d 37, 2003-Ohio-2875, 790 N.E.2d 824, ¶ 8.” Cleveland v. Gholston, 8th
Dist. No. 96592, 2011-Ohio-6164, ¶ 20, fn. 1.
{¶7} That is, the court memorializes its decisions on the journal and the content
of the December 2, 2011 journal entry — not the reference to the entry on the docket —
reflects the complete substance of the court’s judgment. Indeed, the docket entry
includes “OSJ,” meaning “order see journal,” referring the reader directly to the court’s
journal. Although the Caldwells criticize the language on the docket as being deficient
to comply with this court’s decision in Deutsche Bank Natl. Co., 196 Ohio App.3d 636,
2011-Ohio-4508, 964 N.E.2d 1093, they do not demonstrate that the December 2, 2011
journal entry fails to comply with the Deutsche Bank opinion.
{¶8} The Caldwells also complain that respondent clerk of courts failed to
properly issue and serve notice on them as required by Civ.R. 58(B).1 As noted above,
the appearance docket reflects “Notice issued” for the December 2, 2011 journal entry.
“Relators in mandamus cases must prove their entitlement to the writ by clear and
convincing evidence.” (Citations omitted.) State ex rel. Doner v. Zody, 130 Ohio
St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, paragraph three of the syllabus.
Although the Caldwells state that they did not receive notice, they have not demonstrated
that respondent clerk failed to comply with Civ.R. 58(B). See Griesmer v. Allstate Ins.
Co., 8th Dist. No. 91194, 2009-Ohio-725. We cannot conclude, therefore, that
respondent clerk has failed to fulfill his duty.
{¶9} Relators could have appealed the December 2, 2011 journal entry and
asserted their claim that the respondent clerk had not discharged his duties under Civ.R.
58(B). “The failure of the clerk to serve notice does not affect the validity of the
judgment or the running of the time for appeal except as provided in App.R. 4(A).”
Civ.R. 58(B). They did not appeal the December 2, 2011 judgment and have not
provided this court with the opportunity to exercise its appellate jurisdiction to determine
whether that entry was a final appealable order.
{¶10} In State ex rel. Haggins v. McDonnell, 8th Dist. No. 76004, 1999 Ohio
App. LEXIS 3501 (July 29, 1999), the trial court issued an entry in response to this
1
Respondents observe, however, that on December 21, 2011, relators filed a
“motion for relief after judgment pursuant to Ohio Civil Rule 60(B)(5) and renewed
objection to the magistrate’s findings.”
court’s dismissal of two appeals for lack of a final appealable order. We observed that
“challenges to the finality of the [trial court’s] entry could have been addressed to this
court in the exercise of its appellate jurisdiction.” Id. at 8. Likewise, in this original
action, the relators’ failure to appeal provides a basis for denying relief.
{¶11} In State ex rel. O’Malley v. Nicely, 8th Dist. No. 98368,
2012-Ohio- 4405, we held that an order by the domestic relations court made the original
action in mandamus and prohibition moot. “This court declines the invitation to keep
this writ action pending on the possibility that the [domestic relations court’s] order may
not be a final, appealable order. Such doubt is inconsistent with the relator’s need to
establish a clear legal right and a clear legal duty.” Id. at ¶ 8. Similarly, in this
action, relators have not demonstrated that they have a clear legal right to relief or that
respondents have a clear legal duty to act.
{¶12} Accordingly, respondents’ motion for summary judgment is granted. The
Caldwells to pay costs. This court directs the clerk of court to serve all parties notice of
this judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶13} Writ denied.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA ANN BLACKMON, A.J., and
LARRY A. JONES, SR., J., CONCUR