Pahoundis v. Rodgers ( 2011 )

[Cite as Pahoundis v. Rodgers, 2011-Ohio-2860.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GEORGE D. PAHOUNDIS SR. ET AL. JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellees Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 11-CA-3
CYNTHIA RODGERS ET AL.
Defendant-Appellants OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County
Common Pleas Court, Case No.
08-CI-0137
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: June 3, 2011
APPEARANCES:
For Plaintiff-Appellees For Defendant-Appellants
GEORGE D. PAHOUNDIS SR. CYNTHIA M. RODGERS, PRO SE
c/o JAMES R. SKELTON Admin. of Estate of John D. Pahoundis
309 Main Street 605 Cass Street
Coshocton, Ohio 43812 Dresden, Ohio 43821
JAMES R. SKELTON CYNTHIA M. RODGERS, INDIVIDUALLY
309 Main Street Cynthia M. Rodgers,
Coshocton, Ohio 43812 heir of Betty Lou Pahoundis
Cynthia M. Rodgers,
POMERENE, BURNS & SKELTON heir of John Daniel Pahoundis Sr.
309 North Main Street 605 Cass Street
Coshocton, Ohio 43812 Dresden, Ohio 43821
JOHN DOE(S)
John Doe ABC Inc.
Coshocton County, Case No. 11-CA-3 2
Hoffman, P.J.
{¶1} Defendant-appellant Cynthia M. Rodgers, as Administrator of the Estate of
John Daniel Pahoundis, and individually, appeals the January 27, 2011 Judgment Entry
entered by the Coshocton County Court of Common Pleas, which granted plaintiff-
appellee George D. Pahoundis’ motion to dismiss her counterclaim.
STATEMENT OF THE CASE1
{¶2} On February 21, 2008, Appellee filed a Complaint in the Coshocton
County Court of Common Pleas, naming Appellant, as Administrator of the Estate of
John Daniel Pahoundis, and also Appellant, individually, as the defendants. Appellant
filed an answer and counterclaim, which included a third-party complaint.2 The third-
party complaint added Attorney James R. Skelton, individually and as partner of
Pomerene, Burns and Skelton; Pomerene, Burns and Skelton; John Doe(s); and John
Doe ABC, Inc. as third-party defendants.
{¶3} Appellee filed an answer to the counterclaim, raising the affirmative
defense of res judicata. Appellee also filed a motion to dismiss, alleging the issues and
averments asserted in the counterclaim had been previously litigated. Via Judgment
Entry filed January 27, 2011, the trial court granted Appellee’s motion and dismissed
Appellant’s counterclaim against Appellee, as well as the claims against Attorney
Skelton and Pomerene, Burns and Skelton. The trial court scheduled a hearing on
Apellee’s claims for June 3, 2011. The judgment entry did not include Civ. R. 54(B)
language.
1
A Statement of the Facts is not necessary to our disposition of this appeal.
2
The claims alleged in Appellant’s third-party complaint were intertwined within the
counterclaim, and were not set forth in a separate pleading nor captioned as such.
Coshocton County, Case No. 11-CA-3 3
{¶4} On February 7, 2011, Appellant filed an untitled motion in the trial court
requesting “the Chief Justice appoint an impartial democrat judge.” The trial court
struck the motion via Judgment Entry filed February 15, 2011, finding it had no
jurisdiction over the matter.
{¶5} It is from the January 27, 2011 Judgment Entry Appellant appeals, raising
as error:
{¶6} “I. COSHOCTON COUNTY COMMON PLEAS JUDGE BATCHELOR
DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN HE
DISMISSED APPELLANTS’ MARCH 20, 2008 COUNTERCLAIM WITHOUT GOOD
CAUSE AND WHEN HE FAILED TO RECUSE HIMSELF AND WHEN HE FAILED TO
INCLUDE ALL COUNTERCLAIMANTS AND ALL DEFENDANTS IN THE DECISION
FILED JANUARY 27, 2011. THE COUNTERCLAIM CLEARLY NAMES SEVERAL
COUNTERCLAIMANTS AND DEFENDANTS.
{¶7} “II. COSHOCTON COUNTY COURT’S DECISION IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN THAT PLAINTIFF PAHOUNDIS
(HEREINAFTER ‘PAHOUNDIS’) HAD NOT PROVEN HE OWNED 100% OF THE
REAL PROPERTY IN THE UNDERLYING CASE AND OMITTED NECESSARY
PARTIES, AS NEITHER THE 2004 ESTATE COMPLAINT OF THE 2004 PAHOUNDIS
COUNTERCLAIM WAS A ‘QUIET TITLE’ ACTION AS THE ESTATE OF ELIJAH
GEORGE PAHOUNDIS HAD NOT BEEN REOPENED AND THE ESTATE OF BETTY
LOU LANE PAHOUNDIS AND RODGERS AS AN INDIVIDUAL HAD NOT BEEN
MADE PARTIES TO THE UNDERLYING CASE THAT LATER BECAME KNOWN AS
05CI375 WHEN GEORGE FILED HIS ANSWER TO THE 2004 ESTATE COMPLAINT
Coshocton County, Case No. 11-CA-3 4
OR BEFORE THE ESTATE COMPLAINT WAS DISMISSED BY JUDGE EVANS IN
2007.
{¶8} “III. COSHOCTON COUNTY COMMON PLEAS COURT ERRED
BECAUSE IT DID NOT HAVE JURISDICTION. THE COURT SHOULD HAVE
SCREENED THE 2008 PAHOUNDIS COMPLAINT AND TRANSFERRED IT TO
COSHOCTON COUNTY PROBATE COURT BECAUSE IT DEALT WITH A
COMPLAINT CONCERNING A CASE THAT PAHOUNDIS CLAIMED HAD BEEN
FRIVOLOUSLY FILED IN PROBATE COURT IN 2004 THIS 2008 COUNTERCLAIM
OF RODGERS ET AL WOULD THEN HAVE BEEN IN THE COSHOCTON COUNTY
PROBATE COURT WITH THE 2008 PAHOUNDIS COMPLAINT.
{¶9} “IV. COSHOCTON COUNTY COMMON PLEAS COURT ERRED
BECAUSE IT DID NOT HAVE JURISDICTION OF THE 2008 COUNTERCLAIM DUE
TO THE REQUEST FOR DAMAGES UNDER THE RICO ACT UNDER SECTION
901(a) OF THE ORGANIZED CRIME CONTROL ACT OF 1970 (PUB.L. 91-452, 84
STAT. 922, ENACTED 1970-10-15) AS CODIFIED IN CHAPTER 96 OF TITLE 18 OF
THE UNITED STATES CODE, U.S.C. § 1961-1968.
{¶10} “V. THE COSHOCTON COUNTY COURT ERRED IN THAT ITS
DECISION IS TOO BROAD AND IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AS THE PLAINTIFF ONLY ANSWERED THE ESTATE OF JOHN’S
COUNTERCLAIM AND NEVER ANSWERED THE COUNTERCLAIM OF RODGERS
AS AN INDIVIDUAL OR AS AN HEIR OF HER MOTHER’S ESTATE OR RODGERS
AS HEIR OF HER FATHER’S ESTATE AND DID NOT FILE A MOTION TO DISMISS
THOSE PARTIES THEREFORE THE JUDGMENT ENTRY IS TOO BROAD.
Coshocton County, Case No. 11-CA-3 5
{¶11} “VI. THE COSHOCTON COUNTY ERRED IN THAT ITS DECISION
DOES NOT ADDRESS ALL OF THE ISSUES IN THE MAR. 20, 2008
COUNTERCLAIM OF RODGERS ET AL. (THIS INCLUDES A REQUEST TO FIND
PAHOUNDIS WAS A VEXATIOUS LITIGATOR AND BREACH OF WRITTEN
CONTRACT. RODGERS DID NOT NEED TO BE A PARTY TO THE 2004 COMMON
PLEAS ILLEGAL EVICTION ATTEMPT CASE OR THE 2004 APPELLATE CASE OR
THE 2005 COMMON PLEAS ILLEGAL EVICTION ATTEMPT CASES IN ORDER FOR
COSHOCTON COUNTY COURT TO FIND THAT THOSE THREE CASES PLUS THE
COMPLAINT THAT PAHOUNDIS FILED IN 2008 AS 08 CI 137 AGAINST RODGERS
IN HER DUAL CAPACITY AS AN INDIVIDUAL AND AS THE ADMINISTRATOR OF
HER FATHER’S ESTATE WERE FILED ONLY TO HARASS RODGERS AND THE
ESTATE OF JOHN AND THE HEIRS OF BETTY IN ORDER TO DELAY THIRD
PARTIES FROM DISCOVERING THAT THE HEIRS OF BETTY HAVE POSSESSED
THE REAL ESTATE SINCE 1970 SO THAT PAHOUNDIS COULD PRETEND TO OWN
100% OF IT. THE CASES WERE ALSO TO DELAY RODGERS AND THE OTHERS
FROM FINDING OUT THAT PAHOUNDIS HAD ALSO INTERFERED HER
GRANDFATHER’S ESTATE BY ACCEPTING A DEED THAT WAS FRAUDULENT AS
IF HE WERE THE ONLY SON OF ELIJAH PAHOUNDIS AND AS IF HE WERE
ENTITLED TO USE THE GAS/OIL/TIMBER PROFITS FROM THAT HOLMES
COUNTY REAL ESTATE TO HIRE ATTORNEYS WHICH INCLUDE JIMMY SKELTON
IN ORDER TO TRY TO TAKE OVER THE REAL ESTATE CLAIMED BY BETTY LOU
PAHOUNDIS SINCE 1970 BY FILING AN ILLEGAL EVICTION CASE AGAINST HER
HEIRS KNOWING THAT MOORE WAS A FRAUDULENT
Coshocton County, Case No. 11-CA-3 6
GRANTOR/LEASOR/LEASEE. THE JUDGE WRONGLY DETERMINED THAT RES
JUDICATA APPLIED TO THE CASE AND THE BREACH OF THE WRITTEN
CONTRACT AND SHOULD HAVE RECUSED HIMSELF DUE TO HIS INVOLVEMENT
IN 2:07CV067.”
{¶12} This case comes to us on the accelerated calendar. App. R. 11. 1, which
governs accelerated calendar cases, provides in pertinent part:
{¶13} “(E) Determination and judgment on appeal.
{¶14} “The appeal will be determined as provided by App.R. 11.1. It shall be
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.
{¶15} “The decision may be by judgment entry in which case it will not be
published in any form.”
{¶16} This appeal shall be considered in accordance with the aforementioned
rule.
{¶17} As a preliminary matter, we must first determine whether the order under
review is a final appealable order. If an order is not final and appealable, then we have
no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.
Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266. In the event that the
parties to the appeal do not raise this jurisdictional issue, we may raise it sua sponte.
See Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64,
syllabus; Whitaker-Merrell v. Carl M. Geupel Const. Co. (1972), 29 Ohio St.2d 184, 186,
58 O.O.2d 399, 280 N.E.2d 922.
Coshocton County, Case No. 11-CA-3 7
{¶18} An appellate court has jurisdiction to review and affirm, modify, or reverse
judgments or final orders of the trial courts within its district. See Section 3(B)(2), Article
IV, Ohio Constitution; see also R.C. § 2505.02 and Fertec, LLC v. BBC & M
Engineering, Inc., 10th Dist. No. 08AP-998, 2009-Ohio-5246. If an order is not final and
appealable, then we have no jurisdiction to review the matter and must dismiss it. See
Gen. Acc. Ins. Co., supra at 20, 540 N.E.2d 266.
{¶19} 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:
{¶20} “(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:
{¶21} “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶22} “(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment.” R.C. 2505.02.
{¶23} Civ.R. 54(B) provides:
{¶24} “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
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
Coshocton County, Case No. 11-CA-3 8
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.” Civ.R. 54.
{¶25} Therefore, to qualify as final and appealable, the trial court's order must
satisfy the requirements of R.C. § 2505.02, and if the action involves multiple claims
and/or multiple parties and the order does not enter a judgment on all the claims and/or
as to all parties; as is the case here, the order must also satisfy Civ .R. 54(B) by
including express language that “there is no just reason for delay.” Internatl. Bhd. of
Electrical Workers, Local Union No. 8 v. Vaughn Indus., L.L.C., 116 Ohio St.3d 335, 879
N.E.2d 187, 2007-Ohio-6439, ¶ 7, citing State ex rel. Scruggs v. Sadler, 97 Ohio St.3d
78, 776 N.E.2d 101, 2002-Ohio-5315, ¶ 5-7.
{¶26} As noted in the Statement of the Case, supra, the trial court dismissed
Appellant’s counterclaim against Appellee, Attorney Skelton, and Pomerene, Burns and
Skelton via Judgment Entry filed January 27, 2011. The January 27, 2011 Judgment
Entry did not include Civ.R. 54(B) language; therefore, there is no final appealable order
as Appellant’s claims against John Doe(s) and John Doe ABC, Inc., remain pending.
Accordingly, this Court does not have jurisdiction to entertain Appellant’s appeal.
Coshocton County, Case No. 11-CA-3 9
{¶27} This appeal is dismissed for lack of jurisdiction.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Coshocton County, Case No. 11-CA-3 10
IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GEORGE D. PAHOUNDIS SR. ET AL. :
:
Plaintiff-Appellees :
:
-vs- : JUDGMENT ENTRY
:
CYNTHIA RODGERS ET AL. :
:
Defendant-Appellants : Case No. 11-CA-3
For the reason stated in our accompanying Opinion, this appeal is dismissed for
lack of jurisdiction. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer___________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY