Pettit v. Glenmoor Country Club, Inc.

[Cite as Pettit v. Glenmoor Country Club, Inc., 2012-Ohio-5622.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STEVEN G. PETTIT, et al., : William B. Hoffman, P.J.
: Sheila G. Farmer, J.
Appellees/Cross-Appellants : Julie A. Edwards, J.
:
-vs- : Case No. 2012-CA-00088
:
:
GLENMOOR COUNTRY CLUB, INC. : OPINION
Appellant/Cross-Appellee
CHARACTER OF PROCEEDING: Civil Appeal from Stark County
Court of Common Pleas Case No.
2011-CV-03298
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: November 29, 2012
APPEARANCES:
For Appellees/Cross-Appellants For Appellant/Cross-Appellee
JOHN H. SCHAEFFER MICHAEL S. GRUBER
PATRICK E. NOSER JASON N. BING
Critchfield, Critchfield & Johnson, Ltd. Zollinger, Gruber, Thomas & Co.
225 North Market Street 6370 Mt. Pleasant Street, N.W.
P.O. Box 599 P.O. Box 2985
Wooster, Ohio 44691 North Canton, Ohio 44720
[Cite as Pettit v. Glenmoor Country Club, Inc., 2012-Ohio-5622.]
Edwards, J.
{¶1} Defendant-appellant, Glenmoor Country Club, Inc., appeals from the April
5, 2012, Judgment Entry of the Stark County Court of Common Pleas. Plaintiffs-
appellees, Steven and Tracy Pettit, have filed a cross-appeal.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 14, 2011, appellees filed a complaint against appellant, a
private country club, alleging that appellant had breached its contract with appellees,
who were equity members of the club. Appellees also set forth claims of unjust
enrichment and negligent misrepresentation. Thereafter, on December 14, 2011,
appellant filed an answer and counterclaim. Appellant, in its counterclaim, alleged that it
had a lien against any membership interest owned by appellee Steven Petit. Appellant,
in its counterclaim, sought judgment against appellees for attorneys’ fees incident to the
enforcement of its lien rights.
{¶3} Subsequently, on January 10, 2012, appellees filed a Motion for Leave to
File an Amended Complaint pursuant to Civ.R. 15(A), seeking to add a claim that
appellant had violated the Ohio Sales Practices Act. Pursuant to an Order filed on
January 13, 2012, the motion was granted. The trial court granted appellant fourteen
(14) days in which to file a response to the Amended Complaint, which was filed on
January 13, 2012. Appellees filed a reply to appellant’s counterclaim on February 24,
2012.
{¶4} A bench trial was held on February 27, 2012. After the trial, both parties
filed Findings of Fact and Conclusions of Law. As memorialized in a Judgment Entry
filed on April 5, 2012, the trial court adopted appellant’s proposed Findings of Fact and
Stark County App. Case No. 2012-CA-00088 3
Conclusions of Law. The trial court, in its Judgment Entry, found that appellees’ “claims
for breach of contract, unjust enrichment and negligent supervision have not been
proven” and that appellant’s claim for legal fees was “not well taken.”
{¶5} Appellant now appeals from the trial court’s April 5, 2012 Judgment Entry,
raising the following assignment of error on appeal:
{¶6} “THE TRIAL COURT ERRED AS A MATTER OF LAW AND AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE IN HOLDING THAT BASED UPON
THE LACK OF CLARITY CONCERNING GLENMOOR’S POLICIES, THE PETTITS
SHALL NOT BE CHARGED FOR DUES AGAINST THEIR EQUITY CONTRIBUTION
AT THE TIME WHEN THEY BECOME ENTITLED TO REPAYMENT OF THEIR
EQUITY CONTRIBUTION ASSUMING THE PETTITS NO LONGER ARE OR WILL BE
USING THE CLUB.”
{¶7} Appellees have filed a cross-appeal, raising the following assignments on
error:
{¶8} “I. THE TRIAL COURT ERRED IN FINDING THAT THE PETTITS DID
NOT PROVE THEIR CLAIM FOR BREACH OF CONTRACT.
{¶9} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE
PETTITS’ TIMELY AND UNOPPOSED MOTION TO AMEND THE COMPLAINT.”
{¶10} 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., 44 Ohio St.3d 17, 20, 540 N.E.2d 266, (1989). In the event that the
parties to the appeal do not raise this jurisdictional issue, we may raise it sua sponte.
Stark County App. Case No. 2012-CA-00088 4
See Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64, (1989);
Whitaker–Merrell v. Carl M. Geupel Const. Co., 29 Ohio St.2d 184, 186, 280 N.E.2d
922, (1972).
{¶11} 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.
{¶12} 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:
{¶13} “(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:
{¶14} “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶15} “(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment.”
{¶16} Civ.R. 54(B) provides:
{¶17} “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
Stark County App. Case No. 2012-CA-00088 5
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
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.”
{¶18} 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,
2007–Ohio–6439, 879 N.E.2d 187, ¶ 7, citing State ex rel. Scruggs v. Sadler, 97 Ohio
St.3d 78, 2002–Ohio–5315, 776 N.E.2d 101, ¶ 5–7. We note that “the mere incantation
of the required language does not turn an otherwise non-final order into a final
appealable order.” Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381, (1989). To
be final and appealable, the judgment entry must also comply with R.C. 2505.02. Id.{¶19} As is stated above, the trial court, pursuant to a Judgment Entry filed on
January 13, 2012 granted appellees’ Motion to Amend their complaint to include a claim
alleging that appellant had violated the Consumer Sales Practices Act. The Amended
Complaint was filed on the same date.
{¶20} The matter proceeded to a bench trial on February 27, 2012. At the bench
trial, the following discussion took place on the record:
Stark County App. Case No. 2012-CA-00088 6
{¶21} “MR. NOSER [appellees’ counsel]: Thank you, Your Honor.
{¶22} “The second issue is I just wanted to make sure we have the record
clarified as to what issues are at stake in this claim today.
{¶23} “On January 10 the Plaintiffs had filed a motion to amend their complaint,
and we discussed that at the final pretrial. As far as I’m aware, I have not seen an order
denying that motion; although I understand that that was the Court’s intent.
{¶24} “THE COURT: Yeah.
{¶25} “MR. NOSER: So just for the record.
{¶26} “THE COURT: That request was denied and is denied.” Transcript at 7-8.
{¶27} We note that a court of record speaks only through its journal, and not by
oral pronouncement. Schenley v. Kauth, 160 Ohio St. 109, 113 N.E.2d 625 (1953),
paragraph one of the syllabus. A trial court’s oral statements have no legal force and
effect unless and until incorporated into a journalized entry. In Re Guardianship of
Hollins, 114 Ohio St.3d 434, 2007-Ohio-4555, 872 N.E.2d 1214, ¶ 30. Moreover, where
a journalized order and the trial court’s comments from the bench are contradictory, the
journalized order controls. See State v. Hillman, 10th Dist. Nos. 09AP-478, 09AP-479,
09AP-480, 2010-Ohio-256, ¶ 15, citing to State v. Burnett, 8th Dist. No. 72373, 1997
WL 578780 (Sept. 18, 1997), citing Economy Fire & Gas Co. v. Croft Gen. Contractors,
Inc., 7 Ohio App.3d 335, 455 N.E.2d 1037 (10th Dist. 1982).
{¶28} In the case sub judice, the trial court never incorporated its oral statement
denying the motion to amend the complaint, which previously had been granted, into a
journalized entry. The claim that appellant had violated the Consumer Sales Practices
Act thus remains pending. While the trial court, in its April 5, 2012 Judgment Entry,
Stark County App. Case No. 2012-CA-00088 7
stated that “[t]his is a final appealable order and there is not just cause for delay”, we
note, as is stated above, that a finding there is no just cause for delay “... is not a
mystical incantation which transforms a nonfinal order into a final appealable order.”
Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352, 617 N.E.2d 1136, (1993),
citing Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989).
{¶29} Accordingly, the judgment appealed from is not a final, appealable order.
The appeal is dismissed.
By: Edwards, J.
Farmer, J. concurs and
Hoffman, P.J. dissents
______________________________
______________________________
______________________________
JUDGES
JAE/d1108
Stark County App. Case No. 2012-CA-00088 8
Hoffman, P.J., dissenting
{¶30} I respectfully dissent from the majority opinion.
{¶31} While I agree with the general rule a court speaks through its journal, and
not by oral pronouncement, I find the procedural posture of this case provides an
exception to that rule.
{¶32} The trial court’s entry granting Appellees leave to amend their complaint
was an interlocutory order subject to reconsideration anytime until a final judgment was
entered on the complaint. It is clear the trial court did so when it orally denied the
motion before commencement of trial. That is why Appellees have cross-appealed,
assigning as error the trial court’s decision with respect thereto.
{¶33} The cases cited by the majority all involve situations where the trial court’s
journalized order contradicted a previous oral comment from the bench.1 While I agree
a subsequent journalized order trumps a trial court’s earlier oral pronouncement, I do
not believe the same applies when the subsequent oral decision contradicts an earlier
interlocutory journalized entry, as is the situation presented herein.
________________________________
HON. WILLIAM B. HOFFMAN
1
The “contradiction” in State v. Hillman, 2010 WL 324417 (Ohio App. 10 Dist.), was
presumed based upon the absence of a trial transcript.
[Cite as Pettit v. Glenmoor Country Club, Inc., 2012-Ohio-5622.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STEVEN G. PETTIT, et al., :
:
Appellees/Cross-Appellants :
:
:
-vs- : JUDGMENT ENTRY
:
GLENMOOR COUNTRY CLUB, INC :
:
Appellant/Cross-Appellee : CASE NO. 2012-CA-00088
For the reasons stated in our accompanying Memorandum-Opinion on file, the
appeal of the Stark County Court of Common Pleas is dismissed. Costs assessed to
appellees, Steven and Tracy Pettit.
_________________________________
_________________________________
_________________________________
JUDGES