Hassinger v. Hassinger ( 2011 )

[Cite as Hassinger v. Hassinger, 2011-Ohio-979.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
RYAN C. HASSINGER : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellant : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 2011-COA-001
TARA B. HASSINGER :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Ashland County Court
of Common Pleas, Case No. 10-MRD-076
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: March 2, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
RYAN C. HASSINGER TARA HASSINGER
503 West 10th Street 238B West Liberty St.
Ashland, OH 44805 Ashland, OH 44805
[Cite as Hassinger v. Hassinger, 2011-Ohio-979.]
Gwin, P.J.
{¶1} Appellant Ryan C. Hassinger appeals the January 4, 2011 Judgment of
the Ashland County Court of Common Pleas denying his request for a free transcript.
Defendant-appellee Tara B. Hassinger did not file a response.
STATEMENT OF THE CASE1
{¶2} By Judgment entry filed December 30, 2010 the magistrate overruled
appellant’s second Motion to Modify Temporary orders. On January 3, 2011, appellant
filed a Motion to Set Aside Magistrates Order and a Motion for Transcript. Appellant
requested a free transcript of the proceedings before the magistrate on the basis of
indigency. By Judgment Entry filed January 4, 2011, the trial court granted appellant’s
request for a transcript; however, the court order appellant to deposit the sum of
$825.00 with the Court Reporter within fourteen days. Until the deposit has been made,
the Court Reporter was not obligated to prepare the transcript.
{¶3} It is from the trial court’s January 4, 2011 Judgment Entry that appellant
has appealed, raising as his sole assignment of error,
{¶4} “I. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANTS
[SIC.] MOTION TO WAIVE COST FOR TRANSCRIPT BECAUSE FOUND [SIC.] CIV.
R. 53 DID NOT CONTAIN ANY PROVISION WAIVING THE DEPOSIT FOR A
TRANSCRIPT DUE TO INDIGENCY. [SIC.]
I.
{¶5} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
1
A Statement of the Facts underlying Appellant’s case is unnecessary to our disposition of this
case; therefore, such shall not be included herein.
Ashland County, Case No. 2011-COA-001 3
{¶6} "(E) Determination and judgment on appeal. The appeal will be
determined as provided by App. R. 11. 1. It shall be in sufficient compliance with App.
R. 12(A) for the statement of the reason for the court's decision as to each error to be in
brief and conclusionary form. The decision may be by judgment entry in which case it
will not be published in any form."
{¶7} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusory decision more quickly than in a case on
the regular calendar where the briefs, facts and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App. 3d 158, 463 N.E.2d
655.
{¶8} Further, we note a reviewing court is not authorized to reverse a correct
judgment merely because it was reached for the wrong reason. State v. Lozier (2004),
101 Ohio St. 3d 161, 166, 2004-Ohio-732 at ¶46, 803 N.E.2d 770, 775. [Citing State ex
rel. McGinty v. Cleveland City School Dist. Bd. of Edn. (1998), 81 Ohio St.3d 283, 290,
690 N.E.2d 1273]; Helvering v. Gowranus (1937), 302 U.S. 238, 245, 58 S.Ct. 154, 158.
{¶9} This appeal shall be considered in accordance with the aforementioned
rule.
{¶10} At the outset, this court must determine whether the trial court's decision is
a final, appealable order that vests this court with jurisdiction. Although not an issue
raised by either party, this court must address, sua sponte, whether there is a final
appealable order ripe for review. State ex rel. White vs. Cuyahoga Metro. Hous. Aut.,
79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72. Thus, we shall first consider
whether this court has jurisdiction over appellant's appeal.
Ashland County, Case No. 2011-COA-001 4
{¶11} Appellate courts have jurisdiction to review the final orders or judgments of
lower courts within their appellate districts. Section 3(B)(2), Article IV, Ohio
Constitution. If a lower court's order is not final, then an appellate court does not have
jurisdiction to review the matter and the matter must be dismissed. General Acc. Ins.
Co. vs. Insurance of North America (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266;
Harris v. Conrad (June 17, 2002), 12th Dist. No. CA-2001-12 108. For a judgment to be
final and appealable, it must satisfy the requirements of R.C. 2505.02 and if applicable,
Civ. R. 54(B). Denham v. New Carlisle (1999), 86 Ohio St.3d 594, 596, 716 N.E.2d
184; Ferraro v. B.F. Goodrich Co. (2002), 149 Ohio App.3d 301, 2002-Ohio-4398, 777
N.E.2d 282. If an order is not final and appealable, an appellate court has no
jurisdiction to review the matter and it must be dismissed.
{¶12} To be final and appealable, an order must comply with R.C. 2505.02 and
Civ.R. 54(B), if applicable. R.C. 2505.02(B) provides the following in pertinent part:
{¶13} "(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:
{¶14} "(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶15} "(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment."
{¶16} Civ.R. 54(B) provides:
{¶17} "When more than one claim for relief is presented in an action whether as
a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the
same or separate transactions, or when multiple parties are involved, the court may
Ashland County, Case No. 2011-COA-001 5
enter final judgment as to one or more but fewer than all of the claims or parties only
upon an express determination that there is no just reason for delay. 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, and the order or other form of decision is subject to revision at any
time before the entry of judgment adjudicating all the claims and the rights and liabilities
of all the parties."
{¶18} "Under Civ. R. 53(E)(4), one of three scenarios occurs after a magistrate's
decision: (1) absent objections, the court may adopt the decision if no errors of law or
other defects appear on the face of the decision; (2) if objections are filed, the court
considers the objections and may adopt, reject, or modify the decision, hear additional
evidence, recommit the matter to the magistrate, or hear the matter; or (3) the court may
immediately adopt the decision and enter judgment without waiting for objections, but
the filing of timely objections automatically stays execution of the judgment until the
court disposes of the objections and vacates, modifies or adheres to the judgment
already entered. Under the third scenario, the trial court may also enter interim orders
that are not subject to an automatic stay. These interim orders are only effective for a
brief period of time.” Crane v. Teague, 2nd Dist. No. 20684, 2005-Ohio-5782 at ¶ 38.
Therefore, a magistrate's decision is interlocutory. Interlocutory orders are subject to
change and may be reconsidered upon the court's own motion or that of a party. See
Pitts v. Dept. of Transp. (1981), 67 Ohio St.2d 378, 423 N.E.2d 1105, fn. 1.
Furthermore, a magistrate's decision remains interlocutory, even if adopted by the court,
Ashland County, Case No. 2011-COA-001 6
unless and until the court enters a final order that determines all the claims for relief in
the action or determines that there is no just reason for delay. See Civ.R. 54(B).
Mahlerwein v. Mahlerwein (2005), 160 Ohio App.3d 564, 572, 2005-Ohio-1835 at ¶ 20,
828 N.E.2d 153, 158-59.
{¶19} In the case sub judice, the ruling on the motion for a free transcript was
obviously not intended to be a final disposition of the matter and, further, insufficiently
contained notice of its finality to indicate to appellant that an immediate appeal would be
required. Hence, appellant's notice of appeal was premature and was never made
mature by the entry of a final judgment. State v. Tripodo (1977), 50 Ohio St.2d 124,
127, 363 N.E.2d 719, 721. As such, there is no final appealable order pursuant to R.C.
2505.02(B).
{¶20} In addition, Civ. R. 53 provides in relevant part,
{¶21} “(iii) Objection to magistrate's factual finding; transcript or affidavit. An
objection to a factual finding, whether or not specifically designated as a finding of fact
under Civ.R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence
submitted to the magistrate relevant to that finding or an affidavit of that evidence if a
transcript is not available. With leave of court, alternative technology or manner of
reviewing the relevant evidence may be considered.”
{¶22} It is well settled that a transcript is unavailable for the purposes of App.R.
9(C) to an indigent appellant who is unable to bear the cost of providing a transcript.
State ex rel. Motley v. Capers (1986), 23 Ohio St.3d 56, 58, 491 N.E.2d 311. See, also
Murphy v. Dept. of Rehabilitation and Correction (Nov. 11, 1993), 10th Dist. No. 93AP-
521; McDermott v. State, Stark App. No. 2004-CA-00178, 2004-Ohio-5560 at ¶25.
Ashland County, Case No. 2011-COA-001 7
Accordingly, when a transcript is unaffordable an indigent civil party has other means to
perfect his objections to the magistrate’s decision and to this Court.
{¶23} Because there is no final appealable order, this court does not have
jurisdiction to entertain appellant's appeal.
{¶24} For the foregoing reasons, the appeal of the judgment of the Court of
Common Pleas, Ashland County, Ohio, is hereby dismissed.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0217
[Cite as Hassinger v. Hassinger, 2011-Ohio-979.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RYAN C. HASSINGER :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
TARA B. HASSINGER :
:
:
Defendant-Appellee : CASE NO. 2011-COA-001
For the reasons stated in our accompanying Memorandum-Opinion, the appeal of
the judgment of the Court of Common Pleas, Ashland County, Ohio, is hereby
dismissed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER