[Cite as Waxman v. Link, 2020-Ohio-47.]




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

 WILLIAM WAXMAN, et al.                        :
                                               :
         Plaintiffs-Appellees                  :   Appellate Case No. 28415
                                               :
 v.                                            :   Trial Court Case No. 2017-CV-4578
                                               :
 DAVID S. LINK, et al.                         :   (Civil Appeal from
                                               :   Common Pleas Court)
         Defendants-Appellants                 :
                                               :

                                          ...........

                                          OPINION

                          Rendered on the 10th day of January, 2020.

                                          ...........

MICHAEL P. MCNAMEE, Atty. Reg. No. 0043861 and ALEXANDER W. CLOONAN, Atty.
Reg. No. 0095690, 2625 Commons Boulevard, Beavercreek, Ohio 45431
      Attorneys for Plaintiffs-Appellees

DAVID S. & CATHI L. LINK, 1561 Cambron Court, Vandalia, Ohio 45377
     Defendants-Appellants, Pro Se

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




WELBAUM, P.J.
                                                                                        -2-


      {¶ 1} Defendants/Appellants, David and Cathi Link, appeal from an order and entry

interpreting the terms of a settlement agreement that the Links entered into with

Plaintiffs/Appellees, William and Betsy Waxman. According to the Links, the trial court

erred in granting a judgment that was not supported by admissible evidence and was not

agreed upon by the parties. We conclude that a final appealable order does not exist.

Accordingly, this appeal will be dismissed for lack of a final appealable order, and the

case will be remanded for further proceedings.



                              I. Facts and Course of Proceeding

      {¶ 2} The parties in this case have been next-door neighbors since 1992, when the

Links purchased the property next door to the Waxmans. In 1994, the Links installed a

wooden fence separating the back yards of the two properties. There was apparently no

dispute about the fence until May 2014, when a dispute arose over the fact that part of

the fence was erected about 12-15 inches beyond the Links’ property line, into the

Waxmans’ yard, and the remaining part was erected 12-15 inches inside the Links’ own

property.   Over the next several years, the dispute escalated and involved various

interactions with the police, the Timberwind Homeowners Association (“HOA”), and the

City of Vandalia.

      {¶ 3} In August 2017, the Waxmans’ attorney sent a cease and desist letter to the

Links, demanding that they immediately cease and desist from the following actions:

              Attaching any items to the side of the fence facing the Waxmans’

      property, including, but not limited to flags, signs, lights, or ropes/strings;

              Aiming any spotlights in the general direction of the Waxman’s
                                                                                          -3-


       property;

              Removing any board from the fence that abuts the Waxmans’

       property;

              Filming or taking pictures of the Waxmans or their property;

              Moving or touching, in any way, whatsoever the Trumpet Vine plant

       which is located on the Waxmans’ property;

              Violating any of the Timberwind Homeowners Association protective

       covenants and restrictions; and

              Conducting any other activities that hinder the Waxmans’ quiet

       enjoyment of their property.

(Emphasis sic.) Doc. #1, Verified Complaint, ¶ 54 and Ex. N attached to the Verified

Complaint, p. 1.

       {¶ 4} The letter further instructed the Links to immediately: (1) remove various

items from the property line, like signs, tiki torches, plastic poles and tarps, fence posts,

and drainage pipes; (2) close the gate to the Waxmans’ property and keep it closed; and

(3) fill in completely all trenches, ditches, and the like that had been dug on or near the

Waxmans’ property line. Ex. N, p. 1-2.

       {¶ 5} The Waxmans filed their complaint on October 2, 2017. In the complaint,

the Waxmans included five causes of action, including: (1) private nuisance – absolute;

(2) trespass; (3) breach of the HOA covenants; (4) a request for a permanent injunction;

and (5) a request for a declaratory judgment on adverse possession. The Waxmans

asked for the following relief: damages in excess of $25,000 for the first three claims; an

injunction; and a declaration that the Waxmans had acquired a legal interest in the
                                                                                          -4-


property north of the fence through adverse possession or, alternatively, as a prescriptive

easement. They also asked for costs, interest, attorney fees, and punitive damages.

        {¶ 6} After David Link filed a pro se answer, the case was referred to mediation,

which unsuccessfully terminated on March 5, 2018. The case was then referred to a

magistrate on May 21, 2018. This rather simple dispute then devolved into a docket with

142 entries and a case with massive amounts of paper, primarily due to the repetitive

filings by pro se litigant, David Link. The Links filed a motion for partial summary judgment

on April 16, 2018, and the Waxmans filed a motion for summary judgment on May 15,

2018.

        {¶ 7} Initially, trial was set for December 5, 2018. However, on October 26, 2018,

the magistrate overruled the Links’ motion for summary judgment and concluded that the

Waxmans were entitled to summary judgment as to counts 1, 3, and 4 of their complaint.

Since the trespass claim was the only claim left, the magistrate stated that this claim

would be scheduled for trial. 1    Subsequently, on November 6, 2018, the Waxmans

dismissed the trespass cause of action without prejudice.

        {¶ 8} After the Links filed objections to the magistrate’s decision, the trial court

issued a decision and entry returning the case to the magistrate without ruling on the

objections. The court then referred the matter to the magistrate for a damages hearing

to be held on January 19, 2019. See Doc. #106. Prior to the damages hearing, the trial

court filed an order granting a permanent injunction against the Links, based on the

October 26, 2018 magistrate’s decision.



1The Waxmans had already dismissed their claim for declaratory judgment on adverse
possession, without prejudice, in April 2018.
                                                                                       -5-


      {¶ 9} When the parties appeared for the damages hearing on January 19, 2019,

they told the magistrate they had reached an agreement to settle the case. At that time,

the parties placed the settlement terms into the record, and both David and Cathi Link

specifically told the magistrate that they understood and agreed to the terms. Transcript

of Proceedings, Settlement Agreement, pp. 5-6.

      {¶ 10} According to the statement of the Waxmans’ counsel during this hearing,

the gist of the agreement was that the Links would pay the Waxmans, through counsel,

a total sum of $20,000 over the course of 16 months, with payments of $1,250 to begin

on February 17, 2019, and the final payment being due on May 17, 2020. Id. at p. 4.

In addition, the Links agreed to erect a new fence on or near the property line separating

the parties’ properties.   They also agreed to pay for all aspects of the new fence,

including a survey to make sure the fence was erected in a proper location, and to

construct it in accordance with the City of Vandalia’s codified ordinances and the HOA

covenants and restrictions. Id. The agreement further provided that the Links would

“not engage in any conduct which is clearly designed at harassing, annoying, or

aggravating the Waxmans,” and specified that “[t]his conduct was delineated in the entry

and order granting final permanent injunction.” Id. at pp. 4-5. Furthermore, if an issue

did arise, the Waxmans’ attorney was to act as a mediator. Id. at p. 5.

      {¶ 11} Under the agreement as stated in court, in exchange for the above

provisions, the Waxmans were to ask the court to terminate the entry and order granting

final permanent injunction and would represent to the court that the matter was resolved

and that any damages hearings were unnecessary at the time. The Waxmans also

requested that the court retain jurisdiction to enforce the agreement. Id.
                                                                                              -6-


       {¶ 12} After the settlement agreement was placed on the record, the magistrate

obtained statements from both sides indicating that they agreed with the settlement. The

magistrate then set the matter out for 30 days and asked the Waxmans’ counsel to

circulate an entry. Id. at p. 6. However, attempts to produce a written order were

unsuccessful, and the Waxmans filed a motion asking the court to enforce the settlement

agreement. They also asked for a hearing, which was set for April 1, 2019.

       {¶ 13} During the hearing, the magistrate tried to determine what the Links’

objections were, starting with the second paragraph on page one of the proposed order

that the Waxmans had enclosed with their motion to enforce the settlement. Transcript

of Proceedings, Hearing on Motion to Enforce, p. 7. However, David Link stated that the

Links had “an issue with the entire settlement” because it was a settlement agreement

that was not in the record. Id. at p. 10.       Link further said, “It’s about our mediation

discussions with Mr. Cloonan, which are privileged information, which includes the

settlement agreement and we object to any discussion of a settlement agreement as part

of privileged information and put in as any type of exhibit in this hearing.” Id. at p. 11.

       {¶ 14} When the magistrate attempted to return to the agreement to ascertain what

the Links’ objections were, David Link again stated that he was “not at liberty to discuss

this because it’s privileged information from a mediation.” Id.          He even refused to

confirm his mailing address because it was “privileged information from the mediation.”

Id. at p. 12. After further discussion during which Link continued to raise privilege, the

magistrate asked Link, “Did you want to go through this agreement or you do not?” Id.

at 20. In response, Link said, “It’s privileged information * * * and the answer is no * * *

it’s privileged. If I bring it into the machinery, it makes it – and I’m not going to do that.”
                                                                                        -7-


Id.

      {¶ 15} At that point, the magistrate said she would issue a ruling based on the

motion to enforce and the subsequent filings, which included the Links’ “combined memo

contra to motion to enforce settlement agreement, motion in limine and motion to

dismiss,” and the Links’ “amended combined memo contra to motion to enforce

settlement agreement, motion in limine and motion to dismiss.” Docs. #123 and 124.

      {¶ 16} On April 24, 2019, the trial court referred the case to the magistrate, nunc

pro tunc as of March 15, 2019, for trial and a decision “including findings of fact and

conclusions of law on all issues of fact and law as prescribed by Ohio Civil Procedure

Rule 53.” Doc. #129, p. 1. This order further stated that “[a]ll case orders and entries

subsequent to and during the pendency of this referral shall be signed only by the

Magistrate unless otherwise ordered by the Court. This reference shall include action

on all motions filed pursuant to R.C. 2323.51, including motions filed after judgment.” Id.

      {¶ 17} Subsequently, the magistrate filed an order and entry, noting that both

defendants had acknowledged at the January 19, 2019 hearing that they agreed to the

terms read into the record. The magistrate then imposed generally similar terms in the

order and entry as the Waxmans had outlined in their motion to enforce the settlement

agreement, together with a few terms that were not discussed during the January 19,

2019 hearing. Doc. #130. After the trial court signed the order, the Links filed a notice

of appeal to our court on May 24, 2019.



                         II. Alleged Abuse of Discretion in Judgment

      {¶ 18} The Links’ sole assignment of error states that:
                                                                                            -8-


              The Trial Court Abused Its Discretion by Entering a Judgment in the

       Action on the Claims and Granting Relief That Was Not Supported by

       Admissible Evidence, Not Agreed Upon by All Parties as a Consent Order,

       Not Pursuant to the Terms of the Settlement Agreement, and Not

       Dismissing the Case.

       {¶ 19} Before addressing the merits of the assignment of error, we must consider

whether the order from which the Links have appealed is a final appealable order. This

is a matter we can raise on our own initiative. Guehl v. Carillon House Assn., Inc., 2d

Dist. Montgomery No. 27438, 2017-Ohio-5491, ¶ 14.

       {¶ 20} Under Ohio Constitution, Article IV, Section 3(B)(2), we have appellate

jurisdiction only over final and appealable orders. “When a trial court refers a matter to

a magistrate for a decision, the magistrate's decision is not a final appealable order. * * *

The trial court's resolution of a referred matter, upon review of the magistrate's decision,

must satisfy several requirements to be considered a final appealable order.” Keeney v.

Keeney, 2d Dist. Clark No. 19-CA-0037, 2019-Ohio-4098, ¶ 3. “First, the trial court's

judgment entry must contain the trial court's own judgment and order on the underlying

matter; it is insufficient for the trial court to simply adopt the magistrate's decision as its

own order.” Id. at ¶ 4, citing State ex rel. Boddie v. Franklin Cty. 911 Admr., 135 Ohio

St.3d 248, 2013-Ohio-401, 985 N.E.2d 1263, ¶ 2, Harkai v. Scherba Industries, Inc., 136

Ohio App.3d 211, 218, 736 N.E.2d 101 (9th Dist.2000), and Civ.R. 53(D)(4)(e).

       {¶ 21} In addition, “[t]he trial court’s entry must sufficiently address the pending

issues ‘so that the parties may know of their rights and obligations by referring only to that

document known as the judgment entry,’ ” the court must rule on pending objections if
                                                                                        -9-


they have been made, and “the judgment entry must ‘be a document separate from the

magistrate’s decision.’ ” Kenney at ¶ 7, quoting Kendall v. Kendall, 6th Dist. Ottawa No.

OT-13-019, 2014-Ohio-4730, ¶ 15.        (Other citations omitted.)   See also Bennett v.

Bennett, 2012-Ohio-501, 969 N.E.2d 344, ¶ 20 (“ ‘Civil Rule 54(A) provides that “[a]

judgment entry shall not contain a recital of pleadings, the magistrate's decision in a

referred matter, or the record of prior proceedings.” A trial court must render its own

separate judgment and may not simply state that it approves, adopts, or incorporates a

magistrate's decision.’ ”).

       {¶ 22} With respect to the requirement of separate documents for a magistrate’s

decision and a judgment entry, both Kenney and Bennett relied on the provision in Civ.R.

54(A) that “ ‘[a] judgment shall not contain * * * the magistrate’s decision in a referred

matter.’ ” Kenny at ¶ 7; Bennett at ¶ 20. However, Civ.R. 54(A) was amended, effective

July 1, 2019, to eliminate that language. After the amendment, the rule states only that

“ ‘Judgment’ as used in these rules means a written entry ordering or declining to order a

form of relief, signed by a judge, and journalized on the docket of the court.”

       {¶ 23} In light of the amendment, we conclude that where a trial court has entered

judgment in the same document as the magistrate’s decision, and where, as here, no

objections are filed to that document, this court will have jurisdiction to review it if it

otherwise meets the standards for a final order discussed above.             However, the

amendment does not apply to the case before us, because the notice of appeal was filed

on May 24, 2019, before Civ.R. 54(A) was amended.

       {¶ 24} Although Civ.R. 86(SS) provides that the amendments to various civil rules,

including Civ.R. 54, that took effect on July 1, 2019, “govern all proceedings in actions
                                                                                          -10-


brought after they take effect and also all further proceedings in actions then pending,”

the rule is qualified. Specifically, the July 1, 2019 amendments apply “except to the

extent that their application in a particular action pending when the amendments take

effect would not be feasible or would work injustice, in which event the former procedure

applies.”

         {¶ 25} Application of the amendment would not be feasible or would work injustice

in the case before us for several reasons.         In the first place, the document being

appealed is labeled as an “order” and is not designated as a magistrate's decision.

However, the matter was referred to a magistrate, who held a hearing, and then drafted

and signed the “order.” The document, therefore, was not an order; it was a magistrate’s

decision.2 Less than one-half hour later, the trial court electronically signed the order.

Due to the way the document was labeled, the Links would not have been alerted to the

fact that objections could be filed, as opposed to taking an immediate appeal from the

order.

         {¶ 26} Recently, the Third District Court of Appeals noted “its growing concern over

trial court magistrates and their understanding of their role in the judicial system.”

Huntington Natl. Bank v. Greer, 3d Dist. Union No. 14-15-01, 2015-Ohio-3403, ¶ 9. The

court stressed that “[e]very member of the judicial system must understand and act

accordingly with their position in the system. This includes magistrates. ‘To presume a

higher authority, or even to convey an appearance of more authority, than that which is


2  Under Civ.R. 53, there is a distinction between decisions and orders. Civ.R.
53(D)(2)(a)(i) provides that “a magistrate may enter orders without judicial approval if
necessary to regulate the proceedings and if not dispositive of a claim or defense of a
party.” In contrast, rules for magistrates’ decisions are found in Civ.R. 53(D)(3)(a), and
involve substantive matters.
                                                                                           -11-


authorized by law and the Civil Rules causes participants in the legal system to question

the role of the trial judge.’ ” Id. at ¶ 11, quoting Roychoudhury v. Roychoudhury, 3d Dist.

Union No. 14-1419, 2015-Ohio-2213, at ¶ 25-26 (Rogers, P.J., concurring).

       {¶ 27} We have also remarked that “[a]lthough magistrates ‘truly do the “ ‘heavy

lifting,” ’ * * * ‘[m]agistrates are neither constitutional nor statutory courts. Magistrates

and their powers are wholly creatures of rules of practice and procedure promulgated by

the Supreme Court.        Therefore, magistrates do not constitute a judicial tribunal

independent of the court that appoints them.           Instead, they are adjuncts of their

appointing courts, which remain responsible to critically review and verify the work of the

magistrates they appoint. * * * The magistrate is a subordinate officer of the trial court, not

an independent officer performing a separate function.’ ” Carpenter v. Johnson, 196

Ohio App.3d 106, 2011-Ohio-4867, 962 N.E.2d 377, ¶ 8 (2d Dist.), quoting Francis v.

McDermott, 2d Dist. Darke No. 1744, 2008-Ohio-6723, ¶ 12. (Other citation omitted.)

       {¶ 28} The “order” was also defective because it failed to comply with Civ.R.

53(D)(3)(a)(iii), which requires that “[a] magistrate's decision shall indicate conspicuously

that a party shall not assign as error on appeal the court's adoption of any factual finding

or legal conclusion, whether or not specifically designated as a finding of fact or

conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically

objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).” In a

similar situation, we have reversed the case and remanded it so objections could be filed.

Gerken v. Barber, 2d Dist. Clark No. 2018-CA-65, 2019-Ohio-641, ¶ 16 (reversing and

remanding the case to allow objections to be filed).

       {¶ 29} In view of the above facts, it would be not be feasible and would be
                                                                                        -12-


inequitable to apply Civ.R. 54(A) retroactively. Accordingly, there is no final appealable

order, and we lack jurisdiction over the current appeal.



                                        III. Conclusion

       {¶ 30} Appellants’ appeal is dismissed for lack of a final appealable order, and the

case is remanded to the trial court for further proceedings.



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



FROELICH, J. and TUCKER, J., concur.



Copies sent to:

Michael P. McNamee
Alexander W. Cloonan
David S. & Cathi L. Link
Hon. Richard Skelton
