[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
