Bunting v. Weaver

[Cite as Bunting v. Weaver, 2018-Ohio-1465.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
PAUL BUNTING JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2017 AP 12 0035
THOMAS WEAVER
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court
of Common Pleas, Case No. 2017 CV 04
0270
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: April 12, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
PAUL BUNTING, PRO SE RICHARD A. NICODEMO
ID #395279 124 15th St. NW
C/O Belmont Correctional Institution Canton, Ohio 44703
68518 Bannock Road, PO Box 540
St. Clairsville, Ohio 43950-9736
Tuscarawas County, Case No. 2017 AP 12 0035 2
Hoffman, P.J.
{¶1} Plaintiff-appellant Paul Edward Bunting appeals the November 22, 2017
Judgment Entry entered by the Tuscarawas County Court of Common Pleas, which
granted defendant-appellant Thomas A. Weaver’s Motion for Relief from Judgment.
STATEMENT OF THE FACTS AND CASE1
{¶2} On August 4, 2000, Appellant pled no contest to one count of rape, in
violation of R.C. 2907.02, and six counts of sexual battery, in violation of R.C. 2907.03.
Via judgment entry filed August 9, 2000, the trial court found Appellant guilty and
sentenced him to a total aggregate term of eighteen years in prison. Prior to his
incarceration in the state penal system, Appellant entered into an agreement with
Appellee to store a “1977 Chevrolet half-ton custom 4 by 4 black-on-black panel van” and
“a 1977 Honda CB350cc full-custom chopper motorcycle” on Appellee's farm until
Appellant’s release from prison. The agreement was actually between Appellant's mother
and Appellee.
{¶3} After Appellant's mother died, Appellee sought the removal of the van from
his property with the assistance of Chief Deputy Orvis Campbell of the Tuscarawas
County Sheriff’s Department. The motorcycle had been destroyed in a fire a number of
years earlier. On May 13, 2013, Chief Deputy Campbell forwarded a letter to Appellant
requesting the removal of the van by Monday, June 24, 2013, or the vehicle would be
towed. Because Appellant did not make arrangements to have the vehicle moved, the
1 Some of the facts set forth herein are taken from previous Appeals involving Appellant.
See, State v. Bunting, 5th Dist. Stark No.2006CA00330, 2007–Ohio–2184, and State ex.
rel. Bunting v. Styer, Tuscarawas App. No. 2014 AP 12 0054, 2015-Ohio-3662.
Tuscarawas County, Case No. 2017 AP 12 0035 3
van was towed as abandoned and was disposed of in accordance with the abandoned
and junk motor vehicle laws of Ohio.
{¶4} On April 18, 2017, Appellant filed a pro se complaint for conversion and
breach of agreement in the Tuscarawas County Court of Common Pleas. Over the years,
Appellant has attempted to have Appellee prosecuted for the theft of the vehicles, and
has filed at least one other complaint against Appellee for conversion and breach of
contract.2 In a correspondence dated May 31, 2017, to the Tuscarawas County Clerk of
Court, Barbara Weaver Scott, Appellee’s power of attorney, explained Appellee is her 88
year old uncle and is currently a resident in a nursing home. Scott indicated a similar
complaint filed by Appellant in Belmont County in 2016, had been dismissed based upon
Chief Deputy Campbell’s May 13, 3013, letter, which is discussed supra.
{¶5} On August 7, 2017, Appellant filed a motion requesting the trial court strike
Scott’s May 31, 2017 communication. Scott sent a letter dated August 16, 2017, directly
to the trial court. Therein, she reiterated the information set forth in her May 31, 2017
correspondence to the Clerk of Court and noted Appellee was in hospice care. Via
Judgment Entry filed August 22, 2017, the trial court granted Appellant’s motion to strike
the May 31, 2017 communication.
{¶6} Appellant filed a motion for default judgment on August 24, 2017. Via
Judgment Entry filed September 5, 2017, the trial court granted default judgment in favor
of Appellant on the issue of liability only, and scheduled the matter for evidentiary hearing
on the issue of damages.
2See, State ex. rel. Bunting, supra, fn 1; Bunting v. Weaver, 7th Dist. Belmont App. No.
16 BE 0044, 2017-Ohio-7017.
Tuscarawas County, Case No. 2017 AP 12 0035 4
{¶7} On September 7, 2017, Appellee filed a reply to Appellant’s motion for
default judgment and motion for leave to plead. On September 11, 2017, the trial court
granted Appellee’s request for an enlargement of time within which to answer, move, or
otherwise plead to the complaint. Appellee filed an answer, denying the allegations and
setting forth affirmative defenses, on September 26, 2017.
{¶8} Appellant filed a Civ. R. 60(B) motion for relief from judgment to vacate the
trial court’s September 11, 2017 Judgment Entry. On October 13, 2017, Appellee filed a
motion for relief from judgment pursuant to Civ. R. 55(B) and 60(B)(1) and (5). Appellant
filed a number of briefs in opposition to Appellee’s motion, including a motion to strike
and a motion for leave to reply to Appellee’s answer. The trial court established a briefing
schedule. Appellee filed replies to Appellant’s motions.
{¶9} Via Judgment Entry filed November 22, 2017, the trial court granted
Appellee’s motion for relief from judgment, and vacated the September 5, 2017 Judgment
Entry, granting default judgment in favor of Appellant.
{¶10} It is from this judgment entry Appellant appeals, raising as his sole
assignment of error:
TRIAL COURT ABUSED ITS DISCRETION AND PREJUDICIALLY
ERRED IN GRANTING APPELLEE’S CIVIL RULE 60(B) MOTION FOR
RELIEF FROM THE SEPTEMBER 5, 2017, DEFAULT JUDGMENT
ENTERED BY THE COURT.
Tuscarawas County, Case No. 2017 AP 12 0035 5
{¶11} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
{¶12} (E) Determination and judgment on appeal.
{¶13} 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.
{¶14} The decision may be by judgment entry in which case it will not be published
in any form.
{¶15} This appeal shall be considered in accordance with the aforementioned
rule.
I
{¶16} For the following reasons, we will not address Appellant’s assignment of
error as we dismiss the appeal for want of jurisdiction.
{¶17} A court of appeals only has jurisdiction over orders that are both final under
Civ.R. 54(B) and appealable under R.C. 2505.02. Grogan v. Grogan Co. Inc. (2001), 143
Ohio App. 3d 548. This court, as well as other Ohio courts, have determined that an order
directed to only a portion of the claims or motions pending in a case is not a final
appealable order. Such an order is distinguishable from ones which adjudicate all pending
claims and motions in the proceeding. See Barth v. Barth, Cuyahoga App. No. 83063,
2003-Ohio-5661. A judgment that leaves issues unresolved and contemplates further
action is not a final appealable order. Circelli v. Keenan Constr., 165 Ohio App. 3d 494,
500, 2006-Ohio-949.
Tuscarawas County, Case No. 2017 AP 12 0035 6
{¶18} Generally, the granting of Civil Rule 60(B) motion for relief from judgment
which vacates a default judgment is a final order. GTE Automatic Elec. Co. v. ARC Indus.,
Inc. (1976), 47 Ohio St. 2d 146, 351 N.E.2d 113, paragraph one of the syllabus. However,
a default judgment which determines the issue of liability, but continues the matter for a
determination of damages is not a final judgment. See, Prather v. American Medical
Response, Inc., 2002 Ohio 5261 at ¶ 10; Wolford v. Newark City School Dist. Bd. of Educ.
(1991), 73 Ohio App. 3d 218, 596 N.E.2d 1085; Arledge v. Brown, 5th Dist. No.2006-CA-
11, 2007-Ohio-57, ¶ 4.
{¶19} Because the trial court granted default judgment only on the issue of liability,
we find the judgment entry granting Appellee’s motion for relief from that interlocutory
order is not a final appealable order. Accordingly, we lack jurisdiction over this matter.
{¶20} For the foregoing reasons, the appeal is dismissed.
By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, Jr., J. concur