Ohio Bd. of Motor Vehicle Repair v. Griffin ( 2017 )

[Cite as Ohio Bd. of Motor Vehicle Repair v. Griffin, 2017-Ohio-9129.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ohio Board of Motor Vehicle Repair, :
Plaintiff-Appellee, : No. 17AP-58
(C.P.C. No. 15CV-9470)
v. :
(REGULAR CALENDAR)
[Michael Lance Griffin, :
Defendant-Appellant]. :
D E C I S I O N
Rendered on December 19, 2017
On brief: Michael DeWine, Attorney General, Tyler J.
Herrmann, and Peter L. Jamison, for appellee. Argued:
Tyler J. Herrmann.
On brief: Michael Lance Griffin, pro se. Argued: Michael
Lance Griffin.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.,
{¶ 1} Michael Lance Griffin, defendant-appellant, appeals from the judgment of
the Franklin County Court of Common Pleas in which the court entered a judgment
striking appellant's motion to vacate void judgment.
{¶ 2} On October 23, 2015, the Ohio Board of Motor Vehicle Repair ("board"),
plaintiff-appellee, filed a complaint for statutory injunctive relief and declaratory
judgment in the common pleas court against appellant, among others, who had been
operating a car repair and window tinting business without registering it pursuant to R.C.
Chapter 4775. On December 7, 2015, appellant, pro se, filed a motion to dismiss, which
the trial court denied on January 15, 2016. On February 10, 2016, appellant filed another
motion to dismiss, which the trial court struck as being redundant on May 2, 2016.
No. 17AP-58 2
{¶ 3} On July 29, 2016, the board filed a motion for summary judgment.
Thereafter, appellant filed several requests for discovery. On September 2, 2016, the
board filed a motion for stay of discovery pending the outcome of the motion for summary
judgment.
{¶ 4} On September 30, 2016, the trial court granted the board's motion for
summary judgment and found the motion for stay of discovery moot.
{¶ 5} On October 29, 2016, appellant filed a motion to set aside or vacate void
order.
{¶ 6} On October 30, 2016, appellant filed a notice of appeal.
{¶ 7} On November 16, 2016, appellant filed a motion for summary judgment.
{¶ 8} On November 22, 2016, the trial court issued a decision and entry. The trial
court denied appellant's motion to vacate judgment and struck his motion for summary
judgment.
{¶ 9} On November 29, 2016, appellant filed a request for findings of fact and
conclusions of law, as well as a request for mandatory judicial notice. On December 8,
2016, the court struck the request for judicial notice and found his request for findings of
fact and conclusions of law moot.
{¶ 10} On December 15, 2016, appellant filed two notices of appeal with respect to
the November 22 and December 8, 2016 judgments. Subsequently, this court
consolidated the three pending appeals. This court recently found in Ohio Bd. of Motor
Vehicle Repair v. Tintmasters Internatl., LLC, 10th Dist. No. 16AP-749, 2017-Ohio-8002
("Tintmasters"), that none of the appealed judgments constituted a final appealable
order; thus, this court lacked jurisdiction and we dismissed the appeals.
{¶ 11} On January 16, 2017, appellant filed another motion to vacate the
September 30, 2016 judgment that granted the board's motion for summary judgment.
This is the only motion before us in the present appeal. On January 17, 2017, the trial
court struck the motion, finding it lacked jurisdiction because it was divested of
jurisdiction on appellant's filing of his notice of appeal. Appellant appeals the January 17,
2017 judgment of the trial court, asserting the following assignments of error:
[I.] The Trial Court erred in granting summary judgment for
plaintiff-appellee, Ohio Board of Motor Vehicle Repair using a
law that qualifies as unconstitutional because it clearly has
two subjects and violates the one subject rule.
No. 17AP-58 3
[II.] The Trial Court erred in striking Defendant[']s-
Appellant's Motion to vacate void judgment filed January 16,
2017.
{¶ 12} Appellant argues in his first assignment of error the trial court erred when it
granted the board's motion for summary judgment, as R.C. Chapter 4775 violates the one-
subject rule. Appellant argues in his second assignment of error the trial court erred when
it struck appellant's motion to vacate void judgment filed January 16, 2017.
{¶ 13} However, we cannot address either assignment of error for the same
reasons outlined in our decision in Tintmasters. In Tintmasters, we found the
September 30, 2016 judgment was not a final appealable order. We held that, although
the trial court granted the board summary judgment, it failed to set forth any remedy
because the September 30, 2016 judgment did not declare the parties' rights and
obligations, enjoin the defendants from taking any action, or order the payment of past-
due fees or fines. Thus, because the September 30, 2016 judgment did not expressly
afford any relief, we found it was not a final appealable order.
{¶ 14} In addition, we explained in Tintmasters that, even if we construed the
September 30, 2016 judgment to implicitly proclaim such relief, it had another problem:
the complaint contained multiple claims, but the trial court failed to grant relief as to each
claim. We found that if an action involves multiple claims, but the appealed order does
not enter a judgment on all the claims, then the order must also satisfy Civ.R. 54(B) by
including express language that "there is no just reason for delay." Unless the words
"there is no just reason for delay" appear where multiple claims exist, the order is subject
to modification and cannot be either final or appealable, and an appellate court may not
review it. We then explained that the November 22 and December 8, 2016 judgments did
not resolve the declaratory judgment claim because they did not declare the parties' rights
and responsibilities under the law. Thus, lacking Civ.R. 54(B) language, the
September 30, 2016 judgment would still not qualify as a final appealable order because
the trial court did not grant relief as to each claim in the complaint.
{¶ 15} We then addressed in Tintmaster whether the November 22, 2016
judgment denying appellant's first motion to vacate was a final appealable order. We
found that when a judgment under challenge by a motion to vacate is not a final
No. 17AP-58 4
appealable order, the subsequent judgment denying the motion to vacate is not a final
appealable order either. Thus, because the trial court's September 30, 2016 judgment did
not constitute a final appealable order, the November 22, 2016 judgment refusing to
vacate that judgment, likewise, did not constitute a final appealable order.
{¶ 16} The same analysis we used in Tintmaster applies to the present appeal. The
motion to vacate in the present appeal challenged the same September 30, 2016 judgment
we found was not a final appealable order in Tintmaster. Just as we held in Tintmaster
that the November 22, 2016 judgment denying appellant's first motion to vacate could not
be a final appealable order because the underlying September 30, 2016 judgment was not
a final appealable order, the January 17, 2017 judgment at issue in the present appeal that
denied appellant's second motion to vacate cannot not be a final appealable order because
it challenges the same non-final, non-appealable September 30, 2016 judgment.
Therefore, because the judgment appealed in the present case does not constitute a final
appealable order, we lack jurisdiction over appellant's appeal. Consequently, we dismiss
the appeal.
{¶ 17} However, we note that, even if the January 17, 2017 judgment appealed in
the present case was a final appealable order, we agree with the trial court that it would
not have had jurisdiction to address appellant's second motion to vacate. " '[O]nce an
appeal is perfected, the trial court is divested of jurisdiction over matters that are
inconsistent with the reviewing court's jurisdiction to reverse, modify, or affirm the
judgment.' " State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of
Common Pleas, 129 Ohio St. 3d 30, 2011-Ohio-626, ¶ 13, quoting State ex rel. Rock v.
School Emps. Retirement Bd., 96 Ohio St. 3d 206, 2002-Ohio-3957, ¶ 8. Thus, generally,
the timely filing of a notice of appeal precludes a trial court from issuing further orders
affecting matters at issue in the appeal. Horvath v. Packo, 6th Dist. No. L-11-1318, 2013-
Ohio-56, ¶ 45; see Electronic Classroom of Tomorrow at ¶ 14 (holding trial court lacked
the authority to enter final judgment on those claims implicated in the order challenged
and issue raised in the appeal); Whipps v. Ryan, 10th Dist. No. 14AP-67, 2014-Ohio-
5302, ¶ 42 (holding trial court lacked jurisdiction to entertain a motion that raised issues
subject to determination by the appellate court in an earlier filed appeal).
{¶ 18} In the present case, appellant appealed the January 17, 2017 order denying
his second motion to vacate the September 30, 2016 judgment granting the board's
No. 17AP-58 5
motion for summary judgment. However, appellant had already perfected an appeal of
the September 30, 2016 judgment; thus, the trial court lacked jurisdiction to take any
action regarding the September 30, 2016 judgment because that judgment was within our
jurisdiction on review. Furthermore, even though this court in Tintmaster eventually
found that the September 30, 2016 judgment was not a final appealable order, the trial
court was still divested of jurisdiction. An ultimate determination by a court of appeals
that the appealed order is not a final appealable order does not retroactively sanction a
trial court's action on appealed matters during the pendency of the appeal. Electronic
Classroom of Tomorrow at ¶ 16. Thus, once a party perfects an appeal of a journalized
order, the trial court loses jurisdiction over matters inconsistent with the reviewing court's
consideration and determination of the appeal, regardless of whether the order appealed
is actually a final appealable order. Brannon v. Persons, 2d Dist. No. 27266, 2016-Ohio-
8591, ¶ 4.
{¶ 19} Accordingly, because the judgment appealed in the present case was not a
final appealable order, we lack jurisdiction over the appeal and dismiss it.
Appeal dismissed.
BRUNNER, J., concurs.
SADLER, J., concurs in judgment only.
SADLER, J., concurring in judgment only.
{¶ 20} I concur with the determination of the majority that this appeal should be
dismissed for lack of a final, appealable order. Consequently, I do not believe the merits
of the appeal should be determined. Because the majority has otherwise proceeded and
addressed the merits of the appeal, I concur in judgment only.
_______________________