Johnson v. Michael

[Cite as Johnson v. Michael, 2018-Ohio-234.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DUANE JOHNSON : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
KATHRYN MICHAEL : Case No. 2017CA00205
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2017CV01799
JUDGMENT: Dismissed
DATE OF JUDGMENT: January 22, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
DUANE JOHNSON, Pro Se MICHAEL J. DEFIBAUGH
825 Diagonal Road JOHN CHRISTOPHER REECE
Akron, OH 44320 161 South High Street
Suite 202
Akron, OH 44308
Stark County, Case No. 2017CA00205 2
Wise, Earle, J.
{¶ 1} Plaintiff-Appellant, Duane Johnson, appeals the October 26, 2017 judgment
entry of the Court of Common Pleas of Stark County, Ohio, transferring venue to the Court
of Common Pleas of Summit County, Ohio. Defendant-Appellee is Kathryn Michael.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On September 1, 2017, appellant filed a pro se complaint against appellee
in the Court of Common Pleas of Stark County, Ohio. Appellant alleged bare claims for
trespass and dereliction of duty, without including any facts regarding the nature of the
allegations.
{¶ 3} On October 5, 2017, appellee filed a motion to transfer venue to Summit
County, Ohio. Appellee explained appellant's claims for relief centered on his arrest by
the Akron Police Department for making false alarms and his subsequent prosecution
and conviction in the Akron Municipal Court (Case No. 14CRB4243). Appellee was the
presiding judge in his case.
{¶ 4} On October 12, 2017, appellant filed a response, objecting to the motion for
change of venue, but not disputing the explanation given by appellee. By judgment entry
filed October 26, 2017, the trial court granted the motion and transferred the case to
Summit County.
{¶ 5} Appellant filed an appeal. Appellee filed a motion to dismiss for lack of a
final appealable order. This matter is now before this court for consideration. As appellant
failed to list any assignment of error pursuant to App.R. 16(A)(3), we glean the following
assignment from the state of the record:
Stark County, Case No. 2017CA00205 3
I
{¶ 6} THE TRIAL COURT ERRED IN GRANTING THE MOTION TO TRANSFER
VENUE TO SUMMIT COUNTY.
{¶ 7} Preliminarily, we note this case is before this court on the accelerated
calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment
on appeal, provides in pertinent part: "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."
{¶ 8} 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., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th
Dist.1983).
{¶ 9} This appeal shall be considered in accordance with the aforementioned
rules.
I
{¶ 10} Appellant claims the trial court erred in granting the motion to transfer venue
to Summit County. Appellee argues the appeal should be dismissed because an order
transferring a case for lack of venue is not a final appealable order. We agree with
appellee.
{¶ 11} To be final and appealable, an order must comply with R.C. 2505.02.
Subsection (B) provides the following in pertinent part:
Stark County, Case No. 2017CA00205 4
(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:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new
trial;
(4) An order that grants or denies a provisional remedy and to which
both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the
appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.
{¶ 12} As explained by this court in Mansfield Family Restaurant v. CGS
Worldwide, Inc. 5th Dist. Richland No. 00-CA-3, 2000 WL 1886226, *2 (Dec. 28, 2000):
The only possible applicable paragraph is paragraph 4, regarding
provisional remedies. " 'Provisional remedy' means a proceeding ancillary
to an action, including, but not limited to, a proceeding for a preliminary
Stark County, Case No. 2017CA00205 5
injunction, attachment, discovery of privileged matter, or suppression of
evidence." R.C. 2505.02(A)(3). The statutory definition does not
specifically refer to proceedings to transfer venue nor are any of the listed
proceedings akin to a transfer of venue. See Duryee [v. Rogers, 8th Dist.
Cuyahoga No. 74963, 1999 WL 1204875 (Dec. 16, 1999)], supra. The
basic purpose of R.C. 2505.02(A)(3) in categorizing certain types of
preliminary decisions of a trial court as final, appealable orders is the
protection of one party against irreparable harm by another party during the
pendency of the litigation. Id. We find that a decision by a trial court to deny
a request for change of venue does not involve the same degree of risk of
irreparable harm to a party as the decisions made in the types of actions
listed under 2505.02(A)(3). The types of provisional remedies listed under
2505.02(A)(3) include decisions that, made preliminarily, could decide all or
part of an action or make an ultimate decision on the merits meaningless or
cause other irreparable harm. For instance, a preliminary injunction could
be issued against a high school football player preventing him from playing
football his senior year based on recruiting violations. The trial court could
grant the attachment of property for which the owner has a ready buyer.
Discovery of privileged material could force a person to divulge highly
personal and sensitive information. If evidence critical to the prosecution of
a criminal case is suppressed, the state could lose any meaningful chance
at successful prosecution of a criminal. The decision to deny a change of
venue does not result in any of the types of irreparable harm just listed.
Stark County, Case No. 2017CA00205 6
There is an adequate legal remedy from a decision denying a change of
venue, after final judgment. In other words, it may be expensive to get the
cat back in the bag, if a trial court errs when it denies a change of venue,
but it can be done. Whereas, when the types of decisions listed in
2505.02(A)(3) are made, the cat is let out of the bag and can never be put
back in. Therefore, denial of a request to change venue is not a final,
appealable order.
{¶ 13} The case sub judice involves not the denial, but the granting of a change
of venue. As noted by this court in Jackson v. Friedlander, 5th Dist. Stark No.
2016CA00053, 2016-Ohio-7503, ¶ 9:
This Court and the Ohio Supreme Court have previously held that
the denial or granting of a motion to change venue is not a final, appealable
order. Gray v. Lloyd Ward, P.C., 5th Dist. Fairfield No. 13 CA 42, 2014-
Ohio-190; State of Ohio ex rel. Edwards v. Tompkins, 5th Dist. Muskingum
No. CT2010-0035, 2011-Ohio-32; State ex rel. Lyons v. Zaleski, 75 Ohio
St.3d 623, 665 N.E.2d 212 (1996).
{¶ 14} Based upon the foregoing, we find the judgment appealed from is not a final
appealable order. Appellee's motion to dismiss is granted.
Stark County, Case No. 2017CA00205 7
{¶ 15} This appeal is dismissed.
By Wise, Earle, J.
Delaney, P.J. and
Baldwin, J. concur.
EEW/db 18