[Cite as Figetakis v. My Pillow, Inc., 2020-Ohio-3949.]


STATE OF OHIO                     )                            IN THE COURT OF APPEALS
                                  )ss:                         NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

MARK FIGETAKIS                                                 C.A. No.   29136

        Appellant

        v.                                                     APPEAL FROM JUDGMENT
                                                               ENTERED IN THE
MY PILLOW, INC. and                                            AKRON MUNICIPAL COURT
MIKE LINDELL (CEO)                                             COUNTY OF SUMMIT, OHIO
                                                               CASE No.   18 CVI 00797
        Appellees

                                  DECISION AND JOURNAL ENTRY

Dated: August 5, 2020



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Mark Figetakis appeals the decision of the Akron Municipal

Court adopting the magistrate’s decision. For the reasons that follow, this Court dismisses the

attempted appeal for lack of jurisdiction.

                                                          I.

        {¶2}     In January 2018, Mr. Figetakis filed a complaint in the Small Claims Division of

the Akron Municipal Court naming two defendants: Mike Lindell C.E.O., and My Pillow, Inc. In

his complaint, Mr. Figetakis sought $6,000 in damages for an alleged failure to honor a guarantee

and alleged false advertisement.

        {¶3}     The matter proceeded to a hearing before a magistrate in April 2018. Mr. Figetakis

appeared at the hearing without counsel. A representative of My Pillow, Inc. appeared, without

counsel, on behalf of the company, but Mike Lindell C.E.O. did not appear at the hearing. The

parties presented testimony and submitted evidence during the hearing.
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       {¶4}    The magistrate issued a decision on June 4, 2018, with findings of fact and

conclusions of law. The magistrate concluded that Mr. Figetakis entered into an agreement with

My Pillow, Inc. “to purchase a pillow and both parties performed their duties under the agreement.”

The magistrate further concluded that My Pillow, Inc. honored its warranty when it sent Mr.

Figetakis a replacement pillow and then offered to give him another replacement pillow. Finally,

the magistrate concluded Mr. Figetakis was not entitled to a full refund for the pillows.

Consequently, the magistrate recommended that the trial court enter judgment against Mr.

Figetakis and in favor of the defendants.

       {¶5}    Mr. Figetakis filed objections asserting that “[t]here are many errors of law and

fact” in the magistrate’s decision. On July 13, 2018, the trial court issued a “ruling on the

objection,” overruling Mr. Figetakis’s objections and adopting the magistrate’s decision.

Thereafter, Mr. Figetakis moved the trial court to reconsider its decision. However, the trial court

overruled his motion, stating that final orders are not subject to reconsideration, that a motion filed

after final judgment is a nullity, and that the trial court’s “July 1[3], 2018 [o]rder is a final

judgment” entry.

       {¶6}    Mr. Figetakis timely appealed the trial court’s decision, presenting three

assignments of error for our review. Recognizing that the decision being appealed adopted the

magistrate’s decision, this Court ordered the parties to file responses addressing the issue of

whether the trial court had independently entered judgment. Mr. Figetakis submitted a perplexing

response vaguely discussing issues of finality, but not directly addressing whether the trial court

independently entered judgment on the magistrate’s decision. The response references the trial

court’s denial of the motion to reconsider that Mr. Figetakis filed subsequent to the trial court’s

ruling on his objections and adopting the magistrate’s decision. In his response, Mr. Figetakis
                                                  3


requested that this Court not dismiss the appeal. My Pillow, Inc. and Mike Lindell C.E.O did not

file a response. This Court provisionally determined that the matter could proceed, but indicated

that the issue of jurisdiction may be revisited upon review of the record during the final disposition

of the appeal.

                                                  II.

                                       Assignment of Error I

       The Court of Appeals lacks subject matter jurisdiction over the appeal
       because the order entered by the trial court did not adjudicate all of the
       pending claims.

                                      Assignment of Error II

       The Akron Municipal Court decision by Judge Ca[b]le dated July 13, 2018, in
       case 18CVI 00797 ruling on objections fails to comply with Ohio Supreme
       Court Case: Chef Italiano Corporation v. Kent State University ET.AL.
       Citation 44 Ohio St 3d86 Ohio 1989:541 NE 2d64. This case is the
       determination as to a final appealable order and jurisdiction, a final
       appealable order must comply with both Civ.R. 54(B) and express
       determination is made that “There is no just reason for delay.” Also R.C.
       2505.02 must be met and is included. [Sic.]

                                      Assignment of Error III

       Furthermore, in Case No. 29136, Magistrate’s Appeal Court Walsh order
       dated August, 10, 2018, stated “upon review of the initial filing this court
       requires additional information to determine its jurisdiction to consider this
       appeal. Specifically, it is unclear whether the trial court has independently
       entered judgment on the Magistrate’s decision because the order appealed
       only ruled on objections. When a case is heard by a Magistrate, the trial court
       must still enter its judgment on all claims before it. Matters initially heard by
       a magistrate are not final until a judge separately enters his or her judgment
       setting forth the outcome of the dispute and the remedy provided. [Sic.]

       {¶7}      To the extent Mr. Figetakis raises cognizable arguments in his three assignments of

error, the focus of those arguments does not relate to the merits of the trial court’s decision. In his

first assignment of error, Mr. Figetakis argues that this Court lacks jurisdiction over the appeal

because the magistrate’s June 4, 2018 order failed to adjudicate all claims and contends that the
                                                  4


magistrate failed to include Civ.R. 54(B) language. Consequently, he argues, the trial court’s

ruling on his objections to the magistrate’s decision were moot, rendering the trial court’s decision

a non-final order. In his second assignment of error, Mr. Figetakis argues the trial court’s decision

is not final or appealable because it failed to comply with Civ.R. 54(B) and R.C. 2505.02, and

because he alleges there are claims and unspecified issues that have not been decided. It is difficult

to decipher any argument in the third assignment of error, but Mr. Figetakis appears to challenge

the magistrate’s order—issued in the present appeal—questioning this Court’s jurisdiction to

consider this appeal.

       {¶8}    The collective focus of Mr. Figetakis’s arguments is on the finality of the trial

court’s order and this Court’s jurisdiction to hear his appeal. After reviewing the record this Court

agrees that the decision appealed is not a final appealable order, but for reasons other than those

asserted in Mr. Figetakis’s brief.

       {¶9}    “[O]nly a judge, not a magistrate, may terminate a claim or action by entering

judgment.” Harkai v. Scherba Industries, Inc., 136 Ohio App.3d 211, 218 (9th Dist.2000). “A

magistrate’s decision is not effective unless adopted by the court.” Civ.R. 53(D)(4)(a). “Whether

or not objections are timely filed, a court may adopt or reject a magistrate’s decision in whole or

in part, with or without modification.” Civ.R. 53(D)(4)(b). “If one or more objections to a

magistrate’s decision are timely filed, the court shall rule on those objections. In ruling on

objections, the court shall undertake an independent review as to the objected matters to ascertain

that the magistrate has properly determined the factual issues and appropriately applied the law.”

Civ.R. 53(D)(4)(d). “A court that adopts, rejects, or modifies a magistrate’s decision shall also

enter a judgment * * *.” Civ.R. 53(D)(4)(e).
                                                  5


       {¶10} “A decision announces what the judgment will be[,]” while the actual entry of

judgment “unequivocally orders the relief.” Harkai at 216, citing St. Vincent Charity Hosp. v.

Mintz, 33 Ohio St.3d 121, 123 (1987). Even if a “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.” Harkai at 218. “[A] trial court order stating only that it

is adopting a magistrate’s decision does not disclose how the trial court is resolving the issues

submitted to it, and, therefore, is not final.” (Emphasis sic.) Id. at 221. Thus, for a trial court’s

ruling on a magistrate’s decision to be final and appealable, the trial court must independently

enter judgment setting forth the outcome of the dispute, indicating the remedy provided, and fully

determining the action. Thompson v. Thompson, 9th Dist. Medina No. 07CA0023-M, 2009-Ohio-

179, ¶ 9-10.

       {¶11} Where, as is the case here, the trial court states that the magistrate’s decision is

adopted, but “the court’s own judgment [i]s not independently set forth[,]” the order is not final.

Bergin v. Berezansky, 9th Dist. Summit No. 21451, 2003-Ohio-4266, ¶ 6-7. The trial court’s ruling

on the objection to the magistrate’s decision reflects that the court considered the objections,

reviewed the transcripts of the hearing before the magistrate, and undertook a review of the

magistrate’s decision. In its ruling, the trial court noted that the magistrate concluded Mr. Figetakis

“was not entitled to a full refund” and that the magistrate recommended “that [Mr. Figetakis]’s

complaint be denied.” However, in overruling Mr. Figetakis’s objections and adopting the

magistrate’s decision, the trial court did not independently act upon the magistrate’s

recommendation by entering judgment against Mr. Figetakis and in favor of defendants My Pillow,

Inc. and Mike Lindell, C.E.O.
                                                  6


       {¶12} The July 13, 2018 ruling Mr. Figetakis has attempted to appeal fails to

independently set forth the court’s judgment. While “[t]he trial court most likely intended that this

entry constitute the ‘judgment’ in the case[;]” “[i]t is the substance of the entry, however, that must

control.” Harkai at 220. Although the trial court stated it was adopting the magistrate’s decision,

the trial court did not separately enter a judgment setting forth the outcome of the dispute in a

manner that would make clear the relief afforded to the parties.

                                                 III.

       {¶13} This Court lacks jurisdiction to consider this appeal because Mr. Figetakis has not

appealed from a final appealable order.

                                                                                   Appeal dismissed.




       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                        JULIE A. SCHAFER
                                                        FOR THE COURT
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CARR, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

MARK FIGETAKIS, pro se, Appellant.

RONALD D. HOLMAN, II, and MICHAEL J. ZBIEGIENM, JR., Attorneys at Law, for
Appellees.
