[Cite as Schoeneman v. Minor, 2011-Ohio-5460.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




LOUIS W. SCHOENEMAN                              JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. Sheila G. Farmer, J,
                                                 Hon. John W. Wise, J.
v.

ROBIN MINOR                                      Case No. 2011CA00063

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Court of Common
                                                 Pleas, Probate Division, Case No.
                                                 209849


JUDGMENT:                                        Dismissed




DATE OF JUDGMENT:                                October 24, 2011




APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

GERALD L. BAKER                                  DONALD GALLICK
3711 Whipple Avenue, NW                          190 North Union Street
Canton, OH 44718                                 #102
                                                 Akron, OH 44304
Stark County, Case No. 2011CA00063                                                       2

Farmer, J.

       {¶1}   This case originated upon the filing of a complaint for the concealment of

assets filed by appellee, Louis Schoeneman, against appellant, Robin Minor. In his

brief at 13-15, appellee raises the issue as to whether the basis for the appeal, the trial

court's March 14, 2011 judgment entry, is a final appealable order. For the following

reasons, we find that it is not.

       {¶2}   Ohio law provides that appellate courts have jurisdiction to review only

final orders or judgments. See, generally, Section 3(B)(2), Article IV, Ohio Constitution;

R.C. 2505 .02.     If an order is not final and appealable, an appellate court has no

jurisdiction to review the matter and it must be dismissed.

       {¶3}   To be final and appealable, an order must comply with R.C. 2505.02.

Subsection (B) provides the following in pertinent part:

       {¶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:

       {¶5}   "(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

       {¶6}   "(2) An order that affects a substantial right made in a special proceeding

or upon a summary application in an action after judgment."

       {¶7}   A complaint for the concealment of assets was filed on August 31, 2010

wherein appellee requested the appearance of appellant for hearing and costs and

attorney fees:

       {¶8}   "WHEREFORE, he asks that a writ of citation be issued against Robin A.

Minor requiring her to appear before said Court forthwith, then and there to be
Stark County, Case No. 2011CA00063                                                        3


examined under oath touching the matters set forth in the Complaint, and that such

other proceedings may be had in the premises as are authorized by law, including the

cost of this action and attorney fees."

       {¶9}   Following a hearing on February 28, 2011, the trial court issued the

following order:

       {¶10} "Accordingly, the Court finds Robin A. Minor guilty of concealment of the

Martin and Springfield firearms as alleged in the Complaint for Concealment of Assets.

       {¶11} "Ohio Revised Code § 2109.52 states that 'if such person is found guilty,

the probate court . . . may order the return of the specific thing concealed. . .' The Court

hereby ORDERS Robin A. Minor to return to Attorney Baker the Marlin and Springfield

firearms listed in Items 16-23 of the Schedule of Assets within ten (10) days of the date

of this Judgment Entry. Attorney Baker, attorney for the Estate, shall provide notice to

the Court stating whether this Order has been complied with." Judgment Entry filed

March 14, 2011.

       {¶12} An award for attorney fees is to be awarded to the complainant in an asset

concealment action. R.C. 2109.50; R.C. 2109.52; In the Matter of: The Estate of Lena

B. Simons, Deceased, Trumbull App. No. 2004-T-0066, 2005-Ohio 2362, ¶26. In this

case, appellee was the complaining party and therefore was entitled to seek attorney

fees as the fiduciary of the estate. Id. In its March 14, 2011 judgment entry, the trial

court failed to make an award as to the costs and attorney fees properly prayed for in

the complaint.

       {¶13} In addition, the very language of the trial court's judgment entry was

conditional. It ordered the return of the property within ten days of the order, by March
Stark County, Case No. 2011CA00063                                                      4


24, 2011, and ordered appellee's attorney to provide notice to the trial court that the

order hads been complied with.

      {¶14} On March 22, 2011, appellant filed a notice of appeal, along with a motion

to stay the judgment. The trial court did not address the stay request. On May 20,

2011, appellant filed a motion for stay with this court. By judgment entry filed June 10,

2011, this court denied the stay as "moot." The record does not suggest why this court

considered the request to be moot.

      {¶15} As our brethren from the Twelfth District in In re: Estate of Meyer (1989),

63 Ohio App. 3d 454, pointed out, although an asset concealment proceeding is a

special proceeding involving a substantive right and a determination therefrom qualifies

as a final appealable order, the order must include a finding of guilty and the imposition

of penalties. The failure to address penalties, i.e., costs and attorney fees, sub judice

render the order herein non-final.

      {¶16} Based upon the foregoing, this appeal is dismissed.

                                                                            By Farmer, J.

Wise, J. concur and

Hoffman, P.J. concurs separately.

                                            _s/ Sheila G. Farmer______________



                                            _s/ John W. Wise_____________________



                                            _______________________________

                                                           JUDGES
Stark County, Case No. 2011CA00063                                                       5

Hoffman, P.J., concurring

       (¶17) I concur in the majority’s decision to dismiss this appeal for want of a final

appealable order.

       (¶18) I write separately to note I do so only because of the lack of a decision as

to attorney fees. Unlike the majority, I do not find the inclusion of language in the

judgment entry concerning notice to the court of compliance renders the judgment

conditional; therefore, not final.



                                                ________________________________
                                                HON. WILLIAM B. HOFFMAN
[Cite as Schoeneman v. Minor, 2011-Ohio-5460.]


               IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT




LOUIS W. SCHOENEMAN                              :
                                                 :
        Plaintiff-Appellee                       :
                                                 :
v.                                               :        JUDGMENT ENTRY
                                                 :
ROBIN MINOR                                      :
                                                 :
        Defendant-Appellant                      :        CASE NO. 2011CA00063




        For the reasons stated in our accompanying Memorandum-Opinion, this appeal

is dismissed. Costs to appellant.




                                                 _s/ Sheila G. Farmer______________



                                                 _s/ John W. Wise_________________



                                                 _s/ William B. Hoffman_____________

                                                              JUDGES
