[Cite as Brown v. Burnett, 2018-Ohio-2328.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY

 PATRICIA A. BROWN                                  :
                                                    :
         Plaintiff-Appellant                        :  Appellate Case No. 2017-CA-86
                                                    :
 v.                                                 :  Trial Court Case No. 15-CV-207
                                                    :
 HARLAN BURNETT, et al.                             :  (Civil Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellee                         :
                                                    :
                                               ...........

                                              OPINION

                             Rendered on the 15th day of June, 2018.

                                               ...........

JOSEPH P. MOORE, Atty. Reg. No. 0014362, and BRIAN HUELSMAN, Atty. Reg. No.
0055444, 262 James E. Bohanan Memorial Drive, Vandalia, Ohio 45377
     Attorney for Plaintiff-Appellant

PAUL J. KAVANAGH, Atty. Reg. No. 0065418, 333 N. Limestone Street, P.O. Box 1687,
Springfield, Ohio 45501
      Attorney for Defendant-Appellee

                                              .............
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HALL, J.

       {¶ 1} Patricia A. Brown appeals from the trial court’s September 29, 2017 “Entry

Adopting the Magistrate’s Decision” and overruling her objections to the magistrate’s

evidentiary rulings.

       {¶ 2} The present appeal stems from a residential real-estate transaction involving

Brown, the buyer, and defendants-appellees Harlan and Mary Burnett, the sellers. Shortly

after purchasing the home, Brown discovered significant water intrusion inside the

exterior walls and resulting mold in various locations. She paid roughly $85,000 to remedy

the problem and to remediate the mold. Brown subsequently sued the Burnetts for failing

to disclose the water-related problems on a residential property disclosure form they

completed prior to the sale. The parties consented to a jury trial before a magistrate. Prior

to trial, however, the magistrate sustained in part and overruled in part a motion in limine

filed by the Burnetts. The magistrate substantially limited the testimony of three of Brown’s

expert witnesses with regard to the mold. The magistrate concluded that Brown’s fourth

expert was qualified to testify more extensively on the subject and overruled the motion

with regard to that expert.

       {¶ 3} The case proceeded to trial in January 2017. The primary issue was whether

the Burnetts had knowledge of the water and mold problem when they sold the home.

Brown attempted to question her experts about the age of the mold in the home and when

it appeared in various locations. The Burnetts objected based on the magistrate’s liminal

ruling. The magistrate again precluded three of Brown’s experts from opining on the

subject while granting a fourth expert more leeway. After hearing the evidence presented,

the jury rendered a verdict for the Burnetts. The verdict was memorialized in a January
                                                                                            -3-


24, 2017 filing styled as a “Judgment” signed by the magistrate and by the trial court

judge. (Doc. # 61). Brown filed objections on February 3, 2017 and, later, supplemental

objections to the magistrate’s “Decision.” (Doc. #63, 72). In her objections, Brown claimed

the magistrate had erred in (1) limiting her experts’ testimony about the mold and (2)

allowing the Burnetts’ son-in-law to testify that a particular water spot “looked fresh.”

       {¶ 4} On September 29, 2017, the trial court filed the entry from which Brown has

appealed. It is captioned as an “Entry Adopting the Magistrate’s Decision” and includes

the words “Final Judgment” in the caption. (Doc. #76). In the body of the filing, the trial

court accepts the magistrate’s “findings of fact and conclusions of law,” overrules Brown’s

objections, and adopts the magistrate’s “Decision” as the trial court’s final, appealable

order. (Id. at 1-2).

       {¶ 5} On January 8, 2018, this court filed a show-cause order, directing Brown to

show cause why her appeal should not be dismissed for lack of jurisdiction. Specifically,

this court explained:

               Here, the September 29 Entry resolves objections to and adopts the

       magistrate’s decision. It does not, however, contain the trial court’s own

       order entering judgment and resolving the matter before the court. Because

       the Entry does not contain the trial court’s own judgment, the parties must

       refer to and compare two separate documents to understand their rights

       and obligations. To avoid this confusing situation, this court and others have

       required trial courts reviewing a magistrate’s decision to state their

       judgments in such a way that the parties need not refer to any other

       documents to understand their rights and responsibilities. [Citations
                                                                                           -4-


       omitted.]. An order that does not satisfy these standards is generally not a

       final appealable order.

       {¶ 6} In a one-paragraph response to the show-cause order, Brown stated:

              Now comes the Appellant, Patricia A. Brown by and through counsel

       [and] responds to the Court’s Show Cause Order. Appellant, Patricia A.

       Brown understands the Court has deemed the Trial Court’s Entry filed

       September 29, 2017 to not be a final Appealable Order because certain

       language has not been placed in said Order. Appellant, Patricia A. Brown

       requests this Court to provide instructions to the Trial Court regarding the

       specific language that is sought so that the matter may proceed forward.

       {¶ 7} For their part, the Burnetts argued that the appealable judgment was the

January 24, 2017 entry on the jury verdict signed by the magistrate and the trial court

judge. The Burnetts asserted that “[t]here was no magistrate decision to be objected to

since the decision was a verdict of a jury.” The Burnetts argued that Brown should have

filed objections from the magistrate’s tentative pretrial liminal ruling, not from the January

24, 2017 entry of judgment on the jury verdict. After reviewing the parties’ responses, this

court filed a March 14, 2018 decision and entry advising that it would take up the

jurisdictional issue with the merits of the case.

       {¶ 8} In her amended appellate brief, Brown now addresses the jurisdictional issue

as follows:

              This Court has jurisdiction based on the Final Judgment filed by the

       Trial Court on September 29, 2017. The Judgment adopts the ruling of the

       Magistrate and further the parties fully understand the outcome of the case.
                                                                                             -5-


       The Trial Court went on to equally split the court costs involved so as to

       resolve all issues therein. Therefore, the Final Judgment was adequate

       enough to permit jurisdiction for this Court.

              If the Court finds that the Judgment of January 24, 2017 was

       appropriate as an adoption of the jury verdict and not a Decision of the

       Magistrate then the Final Judgment filed September 29, 2017 allows for this

       Court to have jurisdiction because the proper language was presented in

       the Trial Court’s Final Judgment and the appeal herein was timely filed.

       {¶ 9} Upon review, we conclude that the January 24, 2017 filing styled as a

“Judgment” that memorialized the jury verdict was, in substance if not in form, a

magistrate’s decision. Even when parties consent to a jury trial before a magistrate, they

may file objections to the proceedings and the trial court retains ultimate authority over

the magistrate’s rulings. Hartt v. Munobe, 67 Ohio St. 3d 3, 5-6, 615 N.E.2d 617 (1993).

“When a jury serves as the trier of fact, however, its findings will not be subject to attack

as are a [magistrate’s] findings. Nevertheless, a party may still object to the [magistrate’s

decision] or proposed entry on the basis of errors such as evidentiary rulings or jury

instructions. If the court finds that such error occurred, it may reject or modify the

[decision], return the [decision] to the [magistrate] with instructions or hear the matter

itself. * * * Thus, even where a jury is the factfinder, the trial court remains as the ultimate

determiner of alleged error by a [magistrate].”1 (Emphasis added.) Id. at 6; see also Dixon



1 Although Hartt involved the former version of Civ.R. 53 that referred to “referees” and
“reports,” the Ohio Supreme Court’s reasoning is equally applicable to magistrates and
decisions under the current version of the rule.
                                                                                            -6-

v. O’Brien, 7th Dist. Mahoning No. 09 MA 123, 2011-Ohio-3399, ¶ 28-29 (“Magistrates

are required to prepare a magistrate’s decision with respect to any matter referred under

Civ.R. 53(D)(1), which includes after presiding over a jury trial by consent of the parties[.]

* * * Here, the magistrate failed to issue a decision after the jury trial. Instead, several

days after trial, both the magistrate and the trial court simultaneously entered judgment

on the jury verdict. This error deprived the parties of an opportunity to object to issues

arising at trial, in contravention of Civ.R. 53.”); Gilson v. Am. Inst. of Alternative Med.,

2016-Ohio-1324, 62 N.E.3d 754, ¶ 75-76 (10th Dist.) (citing Dixon for the proposition that

a magistrate must file a magistrate’s decision even after a jury trial).

       {¶ 10} In light of the foregoing authority, we conclude that the January 24, 2017

“Judgment” on the jury verdict signed by the magistrate effectively was a magistrate’s

decision from which Brown could, and did, file timely objections to challenge the

magistrate’s evidentiary rulings. The trial court overruled those objections and adopted

the magistrate’s decision on September 29, 2017. As this court noted in its January 8,

2018 show-cause order, however, the trial court’s filing lacks its own order entering

judgment and resolving the matter before it. In particular, the trial court’s September 29,

2017 filing lacks the sort of language found in the January 24, 2017 magistrate’s decision

that tentatively disposed of the case (subject to objections and further review by the trial

court) by stating: “In conformity with the verdict of the jury, it is ordered and adjudged that

the Plaintiff take nothing, that the action be dismissed on the merits and that all court

costs be paid by the Plaintiff.” (Doc. #61).

       {¶ 11} Nowhere in the trial court’s September 29, 2017 filing do we find similar

language entering judgment for the Burnetts on the jury verdict. Nor does the trial court’s
                                                                                          -7-


filing address the issue of court costs for the entire case. It simply orders the parties to

split the costs associated with Brown’s objections. As this court explained in its show-

cause order, the trial court’s filing improperly requires the parties to refer to and compare

two separate documents to understand their rights and obligations. Therefore, we

conclude, based on precedent from this court and elsewhere, that the September 29,

2017 entry from which Brown has appealed is not an appealable order. See, e.g., Bennett

v. Bennett, 2012-Ohio-501, 969 N.E.2d 344, ¶ 21 (2d Dist.) (“The ‘Entry’ the court filed on

June 28, 2011, from which this appeal is taken, fails to contain an order or orders that

state the relief the court granted the parties concerning the matters in the magistrate’s

decision to which George filed his two objections, in order that the parties could determine

and be aware of their rights and obligations solely from the court’s judgment, separate

from the magistrate’s decision to which the judgment also makes reference. * * * We

therefore lack jurisdiction to review the error assigned.”); Harkai v. Scherba Indus., Inc.,

136 Ohio App. 3d 211, 218, 736 N.E.2d 101 (9th Dist. 2000) (“Although the judge entirely

agrees with the decision of the magistrate, the judge must still separately enter his or her

own judgment setting forth the outcome of the dispute and the remedy provided.”).

       {¶ 12} Because no appealable order exists, we lack jurisdiction to review the merits

of Brown’s appeal.2 Accordingly, the appeal is dismissed.

                                      .............



DONOVAN, J. and FROELICH, J., concur.


2 Although the author of this opinion dissented in the Bennett case referenced above,
the issue in Bennett now has been decided and stare decisis requires adherence to that
precedent.
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Copies mailed to:

Joseph P. Moore
Brian Huelsman
Paul J. Kavanagh
Hon. Richard J. O’Neill
