Ohio Dept. of Taxation v. Barney

[Cite as Ohio Dept. of Taxation v. Barney, 2023-Ohio-636.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio Department of Taxation, :
Plaintiff-Appellee, : No. 21AP-461
(C.P.C. No. 14JG-54834)
v. :
(REGULAR CALENDAR)
Mitchell V. Barney, :
Defendant-Appellant. :
D E C I S I O N
Rendered on March 2, 2023
On brief: Keith D. Weiner & Associates Co., LPA, and
Suzana Pastor, for appellee.
On brief: Mitchell V. Barney, pro se.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} Defendant-appellant, Mitchell V. Barney, appeals from a judgment of the
Franklin County Court of Common Pleas, adopting a magistrate's decision ordering the
release of garnished funds to plaintiff-appellee, State of Ohio Department of Taxation. For
the reasons that follow, we dismiss the appeal.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The material facts in this case are undisputed. On November 4, 2014, appellee
submitted to the common pleas court a certified personal income tax assessment against
appellant in the principal amount of $5,676.99. According to appellee, the assessment had
become final, by operation of law, when appellee obtained and recorded a judgment lien in
No. 21AP-461 2
the total amount of the assessment. On January 14, 2021, on appellee's application, the
common pleas court ordered the garnishment of appellant's funds held by Citizens Bank.
{¶ 3} Pursuant to R.C. 2716.06, the Franklin County Clerk of Courts ("clerk")
served appellant with a "notice to the judgment debtor of garnishment of property other
than personal earnings" that provided in relevant part as follows:
You are hereby notified that this court has issued an order in
favor of the * * * creditor in this proceeding, directing that some
of your money in excess of $500.00, property, or other credits
other that personal earnings, now in the possession of the
garnishee [Citizens Bank], be used to satisfy your debt to the
judgment creditor. This order was issued on the basis of the
judgment creditor's judgment against you that was obtained in,
or certified to the Franklin County Common Pleas Court * * *.
{¶ 4} On February 25, 2021, Citizens Bank filed an "answer of garnishee," wherein
Citizens Bank certifies that on February 17, 2021, appellant had more than $500.00 in
money, property, or credits other than personal earnings, in a checking account. Citizens
Bank further avers that the amount in excess of $500.00 is $275.35. Accordingly, Citizens
Bank delivered $275.35 to the clerk. Appellant disputed appellee's right to the funds, and
on March 9, 2021, appellant timely filed a request for a hearing.
{¶ 5} On March 10, 2021, appellee moved the court for an order releasing the
garnished funds held by the clerk. On May 5, 2021, a court magistrate held a garnishment
hearing by video. On May 14, 2021, the magistrate issued a decision which concludes as
follows: "[T]he Franklin County Clerk of Courts is hereby ORDERED to release the sum of
$275.35 to the Judgment Creditor, the State of Ohio Department of Taxation." (Emphasis
sic.) (May 14, 2021 Mag. Decision at 3.)
{¶ 6} On June 3, 2021, appellant filed objections to the magistrate's decision. On
July 20, 2021, appellant filed the additional documents in opposition to the garnishment.
On August 18, 2021, the trial court issued a decision and judgment entry adopting the
magistrate's decision as its own. Appellant timely appealed to this court from the
August 18, 2021 judgment.
II. FINAL APPEALABLE ORDER
{¶ 7} Although neither party in the present case has questioned the finality of the
August 18, 2021 order, this court has the duty to sua sponte determine whether we have
No. 21AP-461 3
jurisdiction of this appeal. Price v. Jillisky, 10th Dist. No. 03AP-801, 2004-Ohio-1221;
G. Scottco Invest. Co. v. Korleski, 10th Dist. No. 10AP-582, 2011-Ohio-6656, ¶ 7. "This
court has jurisdiction to review final orders or judgments of lower courts within our
district." Korleski at ¶ 7, citing Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2501.02.
"If the order is not a final appealable order, we lack jurisdiction and must dismiss the
appeal." Id., citing Prod. Credit Assn. v. Hedges, 87 Ohio App.3d 207 (4th Dist.1993).
{¶ 8} Civ.R. 53(D)(4) pertaining to court action on a magistrate's decision and on
any objections to a magistrate's decision provides in relevant part as follows:
(a) Action of court required. A magistrate's decision is not
effective unless adopted by the court.
***
(c) If no objections are filed. If no timely objections are filed,
the court may adopt a magistrate's decision, unless it
determines that there is an error of law or other defect evident
on the face of the magistrate's decision.
(d) Action on objections. If one or more objections to a
magistrate's decision are timely filed, the court shall rule on
those objections. In ruling on objections, the court shall
undertake an independent review as to the objected matters to
ascertain that the magistrate has properly determined the
factual issues and appropriately applied the law.
(Emphasis sic.) (Emphasis added.)
{¶ 9} Here, the trial court's decision and judgment entry closes with the following:
Therefore, after consideration and independent review, the
Court finds that there is no error of law or other defect evident
on the face of the Magistrate's Decision, and accordingly, it
ADOPTS in full Magistrate Browning's Decision dated May
14, 2021, which is incorporated herein by reference. This is a
final appealable order and there is no just cause for delay.
(Emphasis sic.) (Jgmt. Entry at 3.)
{¶ 10} The trial court's concluding paragraph conflates the standard of review set
forth in Civ.R. 53(D)(4)(c), applicable if no objections are filed, with the standard of review
set forth in Civ.R. 53(D)(4)(d), pertaining to actions on objections. Though the concluding
paragraph begins with "after consideration and independent review," it continues: "the
No. 21AP-461 4
Court finds that there is no error of law or other defect evident on the face of the
Magistrate's Decision." (Jgmt. Entry at 3.) As a result of the apparent confusion of the two
standards of review, the trial court expressly adopted the magistrate's decision as its own,
but failed to explicitly rule on appellant's objections to the magistrate's decision.
{¶ 11} Pursuant to Civ.R. 53(D)(4), a trial court " 'shall rule on any objections' to a
magistrate's report. 'This rule imposes a mandatory duty on the court to dispose of a party's
objections to a magistrate's report.' " Korleski at ¶ 8 (applying former Civ.R. 53(E)(4)(b)),
quoting Drummond v. Drummond, 10th Dist. No. 02AP-700, 2003- Ohio-587, ¶ 13. " 'It is
clear that an appellate court may not address an appeal of a trial court's judgment when the
trial court has failed to rule on properly filed objections.' " Id., quoting Drummond at ¶ 13,
citing McCown v. McCown, 145 Ohio App.3d 170, 172 (12th Dist.2001). See also In re J.V.,
10th Dist. No. 04AP-621, 2005-Ohio-4925.
{¶ 12} This court has previously concluded that a final appealable order is lacking if
the trial court adopts a magistrate's decision without acknowledging or explicitly ruling on
objections. For example, in Korleski the state obtained partial summary judgment against
the mobile home park, establishing non-compliance with sewage treatment permits and
resulting environmental violations. Following a trial, the court magistrate recommended a
civil penalty against the mobile home park in the amount of $538,441 and ordered specific
injunctive relief. Both parties filed objections to the magistrate's decision, but the trial
court, in adopting the magistrate's decision and entering judgment reducing the penalty,
completely failed to resolve or even mention the state's objections.
{¶ 13} The mobile home park appealed, and the state filed a cross-appeal. This court
sua sponte dismissed the appeal for want of jurisdiction on concluding the trial court's
judgment was not a final appealable order. In reaching this conclusion, we explained that
"the trial court did not consider or in any way reference the state's timely-filed objections
to the magistrate's report. Those issues were not considered, therefore, in the first instance,
and are not ripe for review. The trial court's own designation of the order as final and
appealable is not determinative of whether we may hear the appeal." Korleski at ¶ 9.
{¶ 14} Similarly, in J.V. a complaint was filed alleging that respondent's children
were dependent under R.C. 2151.04(C). A magistrate found the children were dependent
and temporarily committed them to the custody of their father. Both mother and the
No. 21AP-461 5
children filed objections to the magistrate's decision. The trial court overruled mother's
objections and adopted the magistrate's decision but did not mention the children's
objections. The mother appealed.
{¶ 15} This court sua sponte dismissed the appeal for want of jurisdiction on finding
"the trial court's failure to render judgment concerning appellant's children's objections to
the magistrate's decision constitutes a jurisdictional bar for appellate review." J.V. at ¶ 11.
Even though this court dismissed the appeal, we recognized an alternative to dismissal "[i]n
cases where the appellate court can identify some reference to the trial court's consideration
of objections, appellate courts have found support for the notion that we should presume
that a trial court has ruled on objections. See e.g. H.L.S. Bonding Co. v. Fox, Franklin App.
No. 03AP-150, 2004 Ohio 547, at ¶ 8-9 (presuming the trial court overruled appellant's
objections where the trial court 'reviewed' the parties' objections and modified the
magistrate's decision); and Shaffer v. Shaffer (1996), 109 Ohio App.3d 205, 212, 671 N.E.2d
1317 (presuming the trial court overrule objections where the court had made a 'cursory'
reference to the objections)." Id. at ¶ 23.
{¶ 16} The judgment entry in this case provides in relevant part as follows:
On June 3, 2021. Barney filed objections to the Magistrate's
Decision. On July 16, 2021, a transcript of the hearing was filed.
When reviewing objections to a magistrate's decision, the Court
is required to undertake the equivalent of a de novo review
determination, and independently assess the facts and
conclusions contained in the report of that magistrate.
DeSantis v. Soller, 70 Ohio App. 3d 226, 232, 590 N.E.2d 886(10th Dist.1990), citing Normandy Place Assoc. v. Beyer, 2
Ohio St. 3d 102, 443 N.E.2d 161 (1982); Randall v. Eclextions
Lofts Condo Assn., 10th Dist. Franklin No. 13AP-708, 2014-
Ohio-1847, ¶ 7.
The transcript provided to the Court shows that Magistrate
Browning gave Barney until 5:00 p.m. on May 6, 2021 to file
the banking records that he alleged at the hearing
demonstrated that his accounts were improperly garnished.
Barney did not file any supplemental documentation within the
time frame allowed by Magistrate Browning.
No. 21AP-461 6
In his objections, Barney relays that Magistrate Browning had
before her exhibits demonstrating that his bank accounts had
less than the amount allowed to be garnished.
(Footnotes omitted.) (Jgmt. Entry at 1-2.)
{¶ 17} Here, the trial court issued a "judgment entry adopting magistrate's decision
regarding garnishment hearing and overruling objections." (Emphasis added.) (Jgmt.
Entry at 1.) In addition, the "judgment entry" clearly evidences consideration of appellant's
objections. Furthermore, based on the trial court's review of appellant's objections, the
transcript of proceedings and the evidence submitted by the parties, the trial court found
that "[t]he Answer of Garnishee Citizens remains unrebutted that it had more than
$500.00 in money, property, or credits other than personal earnings, of the judgment
debtor, under its control and in its possession." (Jgmt. Entry at 3.) This finding by the trial
court effectively disposed of appellant's objections. In our view, the trial court's judgment
entry leaves little doubt that the trial court considered the merits of appellant's objections,
found them meritless, and would have explicitly overruled the objections had it not
mistakenly conflated the Civ.R. 53(D)(4) standards of review.
{¶ 18} In determining our jurisdiction of this appeal, however, we cannot overlook
the fact that the trial court never expressly entered judgment for appellee and never ordered
the clerk to release the garnished funds. Civ.R. 53(D)(4)(e) provides as follows:
Entry of judgment or interim order by court. A court that
adopts, rejects, or modifies a magistrate's decision shall also
enter a judgment or interim order.
(Emphasis sic.) (Emphasis added.)
{¶ 19} " 'In order for a judgment to be final and appealable, a trial court cannot
merely adopt a magistrate's decision; it must enter its own judgment that sets forth "the
outcome of the dispute and the remedy provided." ' " Gates v. Praul, 10th Dist. No. 09AP-
123, 2010-Ohio-2062, ¶ 16, quoting Miller v. McStay, 9th Dist. No. C.A. 22918, 2006-Ohio-
2282, ¶ 4, quoting Harkai v. Scherba Industries, Inc., 136 Ohio App.3d 211, 218 (9th
Dist.2000). "A trial court must enter its own independent judgment, disposing of the
matters at issue between the parties so that the parties know of their rights and obligations
No. 21AP-461 7
by referring only to the document known as the 'judgment entry.' " Gates at ¶ 16, citing
Conrad v. Conrad, 9th Dist. No. C.A. 21394, 2003-Ohio-2712, ¶ 4.
{¶ 20} Here, the trial court's conclusory paragraph expressly adopts the magistrate's
judgment as its own, but does not employ the word "judgment" or any other verbiage
terminating the case. The conclusory paragraph also fails to order the relief requested by
appellee. It is true that the magistrate expressly ordered the clerk to release the garnished
funds to appellee, but " 'only judges, not magistrates, can terminate claims or actions by
entering judgment.' " State ex rel. Boddie v. Franklin Cty. 911 Admr., 135 Ohio St.3d 248,
2013-Ohio-401, at ¶ 2, quoting In re Adoption of S.R.A., 189 Ohio App.3d 363, 2010-Ohio-
4435, ¶ 17 (10th Dist.). " '[T]he judge must still separately enter his or her own judgment
setting forth the outline of the dispute and the remedy provided.' " Boddie at ¶ 2, quoting
Harkai at 218. "[M]erely approving and adopting a magistrate's decision is not enough,
the trial judge ' "must still separately enter his or her own judgment setting forth the outline
of the dispute and the remedy provided." ' " In re A.M., 3d Dist. No. 9-19-54, 2020-Ohio-
2666, ¶ 11, quoting Boddie at ¶ 2, quoting Harkai at 218. As this court has previously stated,
the trial court's own designation of the order as final and appealable is not dispositive of
appellate jurisdiction. Korleski at ¶ 9.
III. CONCLUSION
{¶ 21} Because the trial court did not enter judgment in this case and did not order
the requested relief, we find the August 18, 2021 judgment entry is not a final appealable
order. Therefore, the appeal is dismissed for lack of jurisdiction.
Appeal dismissed.
DORRIAN and MENTEL, JJ., concur.
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