[Cite as Jackson v. Friedlander, 2016-Ohio-7503.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                            JUDGES:
LAURA JACKSON,                                      :       Hon. W. Scott Gwin, P.J.
ADMINISTRATRIX OF                                   :       Hon. Patricia A. Delaney, J.
THE ESTATE OF LARRY A.                              :       Hon. Craig R. Baldwin, J.
JACKSON, DECEASED                                   :
                                                    :
                        Plaintiff-Appellant         :       Case No. 2016CA00053
                                                    :
-vs-                                                :
                                                    :       OPINION
DR. IRA R. FRIEDLANDER, M.D.,
F.A.C.C., ET AL

                  Defendants-Appellees




CHARACTER OF PROCEEDING:                                Civil appeal from the Stark County Court of
                                                        Common Pleas, Case No.2014CV00718

JUDGMENT:                                               Affirmed


DATE OF JUDGMENT ENTRY:                                 October 24, 2016

APPEARANCES:

For Plaintiff-Appellant                                 For Defendants-Appellees

CHARLES KENNEDY                                         RICHARD MILLIGAN
BRYAN BARNARD                                           PAUL PUSATERI
111 South Buckeye St., Ste. 270                         4684 Douglas Circle N.W.
Wooster, OH 44691                                       Box 35459
                                                        Canton, OH 44735
Stark County, Case No. 2016CA00053                                                        2

Gwin, P.J.

       {¶1}   Appellant appeals the April 7, 2014 judgment entry of the Stark County

Court of Common Pleas denying her motion to reject change of venue.

                                   Facts & Procedural History

       {¶2}   In 2014, appellant Laura Jackson, administratrix of the Estate of Larry

Jackson, filed a complaint for wrongful death in Wayne County against appellees Dr. Ira

Friedlander, Ohio Physicians Professional Corporation, and Aultman Hospital. Appellant

alleged the decedent underwent a procedure at Aultman Hospital in Stark County to

implant a pacemaker and that he received negligent post-operative care. The decedent

was discharged from Aultman Hospital, traveled to his home in Wayne County, and died

of a massive pulmonary embolism.

       {¶3}   Appellees filed a motion to transfer venue with the Wayne County Common

Pleas Court on February 18, 2014. The Wayne County Common Pleas Court granted

the motion to transfer on March 5, 2014 and transferred the case to the Stark County

Court of Common Pleas.

       {¶4}   On April 2, 2014, appellant filed a motion to reject change of venue with the

Stark County Court of Common Pleas and requested the trial court return the case to

Wayne County. Appellant argued since Civil Rule 3(B)(6) states venue is proper in the

county where all or part of the claim arose, Wayne County was a proper venue because

decedent died in Wayne County and the claim of his estate for wrongful death did not

arise until his death. Appellees filed a brief in opposition to appellant’s motion. On April

7, 2014, the Stark County trial court issued a judgment entry denying appellant’s motion

to reject change of venue.
Stark County, Case No. 2016CA00053                                                        3


       {¶5}   The case proceeded to trial and the trial began on February 8, 2016. On

February 16, 2016, the jury returned a verdict for appellees. The trial court entered

judgment on the verdict on February 18, 2016. Appellant filed a timely appeal. Appellees

moved to dismiss the appeal and appellant opposed the motion. Appellant assigned the

following as error:

       {¶6}   “I. THE LOWER COURTS ERRED AS A MATTER OF LAW BY CHANGING

VENUE FROM WAYNE COUNTY TO STARK COUNTY IN A WRONGFUL DEATH

ACTION WHERE THE DEATH OF THE DECEDENT WAS IN WAYNE COUNTY.”

                                                 I.

       {¶7}   In their motion to dismiss and in their appellate brief, appellees argue Civil

Rule 3(G) prohibits an attack to the final judgment in this case on the sole basis of venue.

Appellant contends Civil Rule 3(G) does not bar her appeal.

       {¶8}   Civil Rule 3(G) provides as follows:

       The provisions of this rule relate to venue and are not jurisdictional. No

       order, judgment, or decree shall be void or subject to collateral attack solely

       on the ground that there was improper venue; however, nothing here shall

       affect the right to appeal an error of court concerning venue.

       {¶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). However, the Ohio Supreme Court

has also stated that “the civil rules are not just a technicality,” the Civil Rules “are a
Stark County, Case No. 2016CA00053                                                         4


mechanism that governs the conduct of all parties equally” and this Court “may not ignore

the plain language of a rule. LaNeve v. Atlas Recycling, Inc., 119 Ohio St.3d 324, 2008-

Ohio-3921, 894 N.E.2d 25.

       {¶10} While Civil Rule 3(G) prohibits the voiding of a judgment solely on the issue

of improper venue, the same rule preserves the right to appeal from an error of the court

regarding venue. The plain language of the rule makes clear that improper venue does

not void a valid judgment, but also that nothing in the rule affects the right to appeal an

error of court concerning venue. This dichotomy was recognized by the concurring judge

in Davis v. Bernhart, 8th Dist. Cuyahoga No. 57454, 1990 WL 180654 (Nov. 21, 1990).

The concurring judge speculates the underlying cause of the problem may be that Ohio

Civil Rule 3 is modeled after Federal Civil Rule 3 and, unlike in the federal system, a

change of venue is not a final appealable order in Ohio. Id. Further, that a “better

approach would be to consider venue as a final appealable order so a party could obtain

a direct appeal on the issue of venue that is both meaningful and from an appellate court

of the same county.” Id.

       {¶11} In this case, appellant makes no argument challenging the judgment on the

merits. She did not file a transcript of the jury trial with her appeal and makes no claim of

errors during the jury trial. Despite the lack of challenge to the judgment other than for

venue, appellant asks this Court to reverse the judgment of the trial court and remand the

case with instructions to transfer it to the Common Pleas Court of Wayne County for

further proceedings. Thus, appellant’s appeal is not simply an attack on venue, but seeks

to set aside the judgment of the jury and would cause the final judgment by the jury and

trial court to be void.
Stark County, Case No. 2016CA00053                                                           5


       {¶12} Thus, while Civil Rule 3(G) provides a right of appeal with regards to venue,

this right of appeal is limited by the first phrase of the rule that provides no judgment shall

be void solely on the ground of improper venue. Pursuant to Civil Rule 3(G), if appellant

had asserted other errors on appeal and this Court remanded the case to the trial court

for further proceedings based upon those errors, this Court could also consider a

challenge to venue and, on remand, sustain a challenge to venue and transfer the

remanded case to the Wayne County Court of Common Pleas. Such a scenario would

not violate Civil Rule 3(G), as the final judgment of the Stark County Common Pleas Court

would not be voided solely on the issue of improper venue.

       {¶13} However, that is not the case in this appeal as appellant does not appeal

anything except venue. Thus, a reversal and remand by this Court of the jury’s verdict

with instructions to transfer the case to the Wayne County Common Pleas Court would

constitute voiding the trial court’s judgment entry solely on the ground of improper venue,

in violation of Civil Rule 3(G), because there is nothing left to do upon remand except

transfer the case to Wayne County for a re-trial. Such a reversal and remand would cause

the final judgment by the Stark County jury and trial court to be void.

       {¶14} The parties disagree on whether this appeal is a “collateral” attack on the

decision on venue or a “direct” appeal of decision concerning venue. We find this

categorization is not dispositive of the issue in this case. Civil Rule 3(G) prohibits a

collateral attack solely on the ground of improper venue; however, the plain language of

the rule also contains a separate clause that prohibits the voiding of a judgment solely on

the ground of improper venue. The portion of the rule prohibiting the voiding of a judgment

solely on the ground of improper venue is not limited to collateral attacks as the rule states
Stark County, Case No. 2016CA00053                                                      6

no judgment shall be void or subject to collateral attack solely on the ground of improper

venue. Thus, even if appellant’s appeal is categorized as a direct appeal, a reversal and

remand by this Court of the jury’s verdict would constitute voiding the judgment entry

solely on the ground of improper venue in violation of Civil Rule 3(G).

      {¶15} Based on the foregoing, we find Civil Rule 3(G) prohibits the instant appeal.

      {¶16} In the second portion of her argument, appellant contends that since death

constitutes part of the claim of wrongful death for venue purposes, venue is proper in

Wayne County because “part of the claim for relief” arose in Wayne County where

decedent died and thus the trial court erred in denying her motion to reject change of

venue. Based upon our analysis above and our determination as to Civil Rule 3(G), we

find this portion of appellant’s argument moot.

      {¶17} Appellant’s assignment of error is overruled.
Stark County, Case No. 2016CA00053                                             7


       {¶18} The April 7, 2014 judgment entry of the Stark County Court of Common

Pleas is affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
