[Cite as Monro Muffler Brake, Inc. v. Dudek, 2011-Ohio-3210.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


                                                    :      JUDGES:
MONRO MUFFLER BRAKE, INC.,                          :      W. Scott Gwin, P.J.
                                                    :      William B. Hoffman, J.
                        Plaintiff-Appellant         :      Julie A. Edwards, J.
                                                    :
-vs-                                                :      Case No. 2010CA00300
                                                    :
                                                    :
TODD DUDEK                                          :      OPINION

                     Defendant-Appellee




CHARACTER OF PROCEEDING:                                        Civil Appeal from Canton Municipal
                                                                Court Case No. 2010-CVF-3658

JUDGMENT:                                                       Dismissed

DATE OF JUDGMENT ENTRY:                                         June 28, 2011

APPEARANCES:

For Plaintiff-Appellant                                         For Defendant-Appellee

JAY E. KRASEVEC, ESQ.                                           DANIEL J. FUNK
Schottenstein, Zox &                                            Baker, Dublikar, Beck,
Dunn Co., LPA                                                   Wiley & Mathews
Fifth Third Center, 10th Floor                                  400 South Main Street
600 Superior Ave., East                                         North Canton, Ohio 44720
Cleveland, Ohio 44114
[Cite as Monro Muffler Brake, Inc. v. Dudek, 2011-Ohio-3210.]


Edwards, J.

        {¶1}    Plaintiff-appellant, Monroe Muffler Brake, Inc., appeals from the

September 24, 2010, Judgment Entry of the Canton Municipal Court.

                               STATEMENT OF THE FACTS AND CASE

        {¶2}    On June 1, 2010, appellee Todd Dudek filed a complaint against appellant

Monroe Muffler Brake, Inc. in the Canton Municipal Court. In his complaint, he alleged

that he was employed by appellant during 2009, and that appellant breached its

agreement with him by failing to pay him a bonus. Appellant was served with a copy of

the summons and complaint by certified mail on June 4, 2010.

        {¶3}    On July 15, 2010, appellee filed a Motion for Default Judgment against

appellant. As memorialized in a Judgment Entry filed on July 19, 2010, the trial court

granted such motion and scheduled a hearing on damages for August 10, 2010, at 8:45

a.m.

        {¶4}    Thereafter, on August 5, 2010, appellant filed a Motion for Relief from

Judgment pursuant to Civ.R. 60(B). Attached to such motion was an affidavit from

Robert Mullen, appellant’s Vice President of Human Resources. Mullen, in his affidavit,

stated, in relevant part, as follows:

        {¶5}    “2. Monro Muffler’s internal procedure is to forward all legal documents to

its legal department for review. In that regard, Todd Dudek’s summons and Complaint

should have been forwarded to the legal department.

        {¶6}    “3. However, on or about June 4, 2010, Donald Sisson, Human Resources

Generalist, received a summons and complaint in the above-captioned matter.

Because the Human Resources Department generally does not receive documents
Stark County App. Case No. 2010CA00300                                                   3


related to formal legal proceedings, I was unaware that the documents were evidence

that a lawsuit was being initiated by Mr. Dudek against Monro Muffler.

      {¶7}   “4. In order to comply with what appeared to be Mr. Dudek’s and/or the

Court’s request for information, I assisted Mr. Sisson in drafting a response to the

allegations contained within Mr. Dudek’s Complaint. A true and accurate copy of that

Response is attached hereto as Exhibit A.

      {¶8}   “5. The Response was sent to Mr. Dudek’s attorney on or about July 2,

2010. I assisted Mr. Sisson in drafting this Response in good faith and was under the

belief that the reply fulfilled any requirements Monro Muffler had in responding to

Plaintiff’s complaint. Therefore, I did not instruct Mr. Sisson to forward the Complaint to

Monro Muffler’s legal department.

      {¶9}   “6. On or about July 28, 2010, Monro Muffler received a copy of the

Judgment Entry against it issued by the Court in connection with Mr. Dudek’s

Complaint. I forwarded this Judgment Entry to Monro Muffler’s legal department for

review.

      {¶10} “7. Had I known that the summons and complaint that Mr. Sisson received

on or about June 4, 2010 required Monro Muffler to respond by way of filing a formal

Answer, I would have instructed Mr. Sisson to forward the same to our legal

department. At first glance, however, the summons and complaint appeared to be

general employee complaint in the investigatory process that we have addressed in the

past by way of informal correspondence, document production and negotiations.”
Stark County App. Case No. 2010CA00300                                                 4


       {¶11} The “response” referred to in paragraph 4 (Exhibit A) was a letter dated

July 2, 2010, from Donald Sisson, appellant’s Human Resource Specialist, to appellee’s

counsel.

       {¶12} Pursuant to a Judgment Entry filed on August 6, 2010, the trial court

scheduled a hearing on appellant’s Motion for Relief from Judgment for August 10, 2010

at 8:45 a.m.

       {¶13} A hearing before a Magistrate was held on August 10, 2010. Pursuant to a

Magistrate’s Report filed on August 11, 2010, the Magistrate recommended that

judgment be rendered in favor of appellee and against appellant in the amount of

$14,250.00 plus interest and that appellant’s Motion for Relief from Judgment be

denied. The Magistrate, in his report, noted that appellant had presented no witnesses

or evidence on behalf of appellant at the hearing.

       {¶14} Appellant, on August 25, 2010, filed objections to the Magistrate’s Report.

Appellant, in its objections, argued that the Magistrate erred in hearing evidence and/or

addressing damages because the August 6, 2010 Judgment Entry stated that only

appellant’s Motion for Relief from Judgment was set for hearing on August 10, 2010.

Appellant also argued that the Magistrate erred in finding that appellant did not

demonstrate that its failure to file an answer was the result of mistake, inadvertence or

excusable neglect.

       {¶15} A hearing on the objections to the Magistrate’s Report was held on

September 22, 2010. Pursuant to a Judgment Entry filed on September 24, 2010, the

trial court denied the objections to the Magistrate’s Report.

       {¶16} Appellant now raises the following assignments of error on appeal:
Stark County App. Case No. 2010CA00300                                                    5


        {¶17} “I. THE TRIAL COURT ERRED IN HEARING EVIDENCE AND/OR

ADDRESSING DAMAGES AT THE AUGUST 10, 2010 HEARING, AS THE COURT’S

SUBSEQUENT JUDGMENT ENTRY STATES THAT ONLY MONRO MUFFLER’S

MOTION FOR RELIEF FROM JUDGMENT WAS SET FOR HEARING ON THAT

DATE.

        {¶18} “II. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN

FINDING MONRO MUFFLER DID NOT DEMONSTRATE THAT ITS FAILURE TO FILE

A FORMAL ANSWER WAS THE RESULT OF MISTAKE, INADVERTENCE OR

EXCUSABLE NEGLECT.”

        {¶19} However, before addressing the merits of appellant’s arguments, we raise,

sua sponte, our concern as to whether this Court has jurisdiction to hear this appeal.

        {¶20} Ohio Civ. R. 53(D) reads:

        {¶21} “(4) Action of court on magistrate's decision and on any objections to

magistrate's decision; entry of judgment or interim order by court.

        {¶22} “(a) Action of court required. A magistrate's decision is not effective unless

adopted by the court.

        {¶23} “ * * *

        {¶24} “(e) Entry of judgment or interim order by court. A court that adopts,

rejects, or modifies a magistrate's decision shall also enter a judgment or interim order.”

        {¶25} The trial court's September 24, 2010, Judgment Entry states as follows:

“Defendant’s Objection to the Magistrate's Decision filed August 25, 2010 is not well-

taken; Wherefore, Defendant’s Objection to the Magistrate’s Decision is DENIED.”
Stark County App. Case No. 2010CA00300                                                    6


         {¶26} The trial court failed to recite that it was approving and adopting the

Magistrate's Decision. While we recognize this was in all likelihood merely an oversight,

we, nevertheless, find that such omission fails to comply with the mandate of Civ. R.

53(D). Accordingly, we find this Court lacks jurisdiction because no final appealable

order exists. See Cropley v. Cappell-Bovee, Stark Appeal No. 2007CA00266, 2008-

Ohio-6800, and Yoho v. Turcott, Richland App. No. 08CA30, 2009-Ohio-178.

         {¶27} Appellant’s appeal is, therefore, dismissed for a want of a final, appealable

order.




By: Edwards, J.

Gwin, P.J. and

Hoffman, J. concur

                                                     ______________________________



                                                     ______________________________



                                                     ______________________________

                                                                  JUDGES

JAE/d0601
[Cite as Monro Muffler Brake, Inc. v. Dudek, 2011-Ohio-3210.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


MONRO MUFFLER BRAKE, INC.,                           :
                                                     :
                           Plaintiff-Appellant       :
                                                     :
                                                     :
-vs-                                                 :          JUDGMENT ENTRY
                                                     :
TODD DUDEK                                           :
                                                     :
                        Defendant-Appellee           :          CASE NO. 2010CA00300




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

appeal of the Canton Municipal Court is dismissed. Costs assessed to appellant.




                                                         _________________________________


                                                         _________________________________


                                                         _________________________________

                                                                        JUDGES
