[Cite as Huntington Natl. Bank v. Greer, 2015-Ohio-3403.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               UNION COUNTY


THE HUNTINGTON NATIONAL BANK,

        PLAINTIFF-APPELLANT/
        CROSS-APPELLEE,                                     CASE NO. 14-15-01

        v.

SHAWN M. GREER,

        DEFENDANT-APPELLEE/
        CROSS-APPELLANT,
        -and-

KELLY C. GREER, ET AL.,                                     OPINION

        DEFENDANTS-APPELLEES/
        CROSS-APPELLEES.



                  Appeal from Union County Common Pleas Court
                            Trial Court No. 13-CV-0118

                          Appeal and Cross-Appeal Dismissed

                           Date of Decision: August 24, 2015




APPEARANCES:

        Kerin Lynn Kaminski and Rachael L. Israel for
                Appellant/Cross-Appellee

        Samir B. Dahman for Appellee/Cross-Appellant
Case No. 14-15-01



ROGERS, P.J.

        {¶1} Plaintiff-Appellant/Cross-Appellee, The Huntington National Bank

(“Huntington”), appeals the judgment of the Court of Common Pleas of Union

County. On appeal, Huntington argues that the court erred by: (1) finding that

Defendant-Appellee/Cross-Appellant, Shaun Greer, substantially performed under

the terms of the settlement agreement; (2) finding that Huntington breached the

settlement agreement; (3) awarding Greer attorney fees; (4) and failing to grant

Huntington’s claims for breach of the promissory note and for foreclosure. On his

cross-appeal, Greer argues that the trial court erred by not awarding him lost

profits he claims were a direct result of the foreclosure filing. For the reasons that

follow, we dismiss the appeal and cross-appeal for lack of a final appealable order.

        {¶2} Huntington filed a complaint for money and foreclosure on April 19,

2013.    In the complaint, Huntington alleged that Greer had failed to make

payments under a promissory note, secured by a piece of real property, held by

Huntington. Further, Huntington alleged that Greer had breached a settlement

agreement that was reached between the parties in a previous foreclosure action

involving the same promissory note. Greer filed his answer on August 7, 2013.

Greer was later permitted to file an amended answer to file a counterclaim, which

was filed on October 10, 2013. In his counterclaim, Greer alleged, among other



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claims, that Huntington had breached the settlement agreement reached in the first

foreclosure action.

       {¶3} The magistrate issued its decision on June 23, 2014. The magistrate

recommended that judgment be entered in favor of Greer on all of Huntington’s

claims based on the finding that Huntington, and not Greer, had breached the

settlement agreement. Further, the magistrate recommended that judgment be

entered in favor of Greer on his counterclaim for breach of the settlement

agreement, but that judgment be entered in favor of Huntington on Greer’s other

claims. Both parties filed objections to the magistrate’s decision, and the trial

court filed its decision on August 18, 2014. The court ordered a hearing on

attorney fees, but did not issue an order on the remaining claims. The court

awarded Greer attorney fees in the amount of $119,186.50 on December 22, 2014.

       {¶4} Huntington and Greer filed these timely appeals, presenting the

following assignments of error for our review.

             Appellant/Cross-Appellee’s Assignment of Error No. I

       THE TRIAL COURT ERRED IN FINDING GREER
       SUBSTANTIALLY    PERFORMED      UNDER    THE
       SETTLEMENT    AGREEMENT;     ABSENT   GREER’S
       SUBSTANTIAL   PERFORMANCE,    HUNTINGTON   IS
       ENTITLED TO JUDGMENT IN ITS FAVOR THAT GREER
       BREACHED THE SETTLEMENT AGREEMENT.




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Case No. 14-15-01


             Appellant/Cross-Appellee’s Assignment of Error No. II

       THE TRIAL COURT ERRED IN FINDING THAT
       HUNTINGTON  BREACHED  THE   SETTLEMENT
       AGREEMENT.

            Appellant/Cross-Appellee’s Assignment of Error No. III

       THE TRIAL COURT ERRED IN AWARDING ATTORNEY
       FEES TO GREER WHERE THE SETTLEMENT
       AGREEMENT ITSELF DID NOT PROVIDE FOR THE
       PAYMENT OF FEES.

            Appellant/Cross-Appellee’s Assignment of Error No. IV

       THE TRIAL COURT ERRED IN NOT GRANTING
       HUNTINGTON JUDGMENT ON ITS CLAIMS FOR BREACH
       OF THE PROMISSORY NOTE AND FOR FORECLOSURE.

             Appellee/Cross-Appellant’s Assignment of Error No. I

       THE TRIAL COURT ERRED IN NOT AWARDING LOST
       PROFITS TO MR. GREER BECAUSE MR. GREER
       ESTABLISHED HIS PERSONAL LOST PROFITS WITH
       REASONABLE CERTAINTY.

       {¶5} Before we can reach the merits of either party’s assignments of error,

we must preliminarily decide whether the trial court’s entry was a final, appealable

order. The Ohio Court of Appeals is only vested with appellate jurisdiction over

final and appealable orders. Ohio Constitution, Article IV, Section 3(B)(2). “If a

judgment appealed is not a final order, an appellate court has no jurisdiction to

consider it and the appeal must be dismissed.” State v. O’Black, 3d Dist. Allen

No. 1-09-46, 2010-Ohio-192, ¶ 4. Moreover, this court is “bound to raise any


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jurisdictional questions not raised by the parties.” Levinsky v. Boardman Twp.

Civ. Serv. Comm., 7th Dist. Mahoning No. 04 MA 36, 2004-Ohio-5931, ¶ 26.

       {¶6} This court has “interpreted Civ.R. 53 to require that when approving a

magistrate’s decision, the [trial] court must not only order that the findings of the

magistrate have been adopted, but it must go one step further and enter its own

judgment on the issues originally submitted to the court.” (Emphasis sic.)

Motycka v. Motycka, 3d Dist. Van Wert No. 15-2000-03, 2000 WL 1521205, *2

(Oct. 12, 2000), citing Reiter v. Reiter, 3d Dist. Hancock No. 5-98-32, 1999 WL

378354 (May 11, 1999). “Although the court need not ‘parrot the magistrate’s

findings,’ the court must, at the very least, address the issues and express the

outcome and remedy in the underlying action.” Id. “The content of the entry

‘must be definite enough to be susceptible to further enforcement and provide

sufficient information to enable the parties to understand the outcome of the case.’

” Id., quoting Walker v. Walker, 9th Dist. Summit No. 12978, 1987 WL 15591, *2

(Aug. 5, 1987).

       {¶7} Further, Civil Rule 54(A) provides: “ ‘Judgment’ as used in these

rules includes a decree and any order from which an appeal lies as provided in

section 2505.02 of the Revised Code. A judgment shall not contain a recital of

pleadings, the magistrate’s decision in a referred matter, or the record of the

proceedings.” (Emphasis added.)


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       {¶8} Here, the trial court ruled on both parties’ objections to the

magistrate’s decision, but the only “order” issued was to have a hearing on

attorney fees. Thus, the court failed to address the other claims before it in its

entry. “An order that leaves issues unresolved and contemplates further action is

not a final appealable order.” Brotherwood v. Gonzalez, 3d Dist. Mercer No. 10-

06-12, 2006-Ohio-4551, ¶ 6, citing State ex rel. Keith v. McMonagle, 103 Ohio

St.3d 430, 2004-Ohio-5580, ¶ 4, quoting Bell v. Horton, 142 Ohio App.3d 694,

696 (4th Dist.2001). Thus, we find that the trial court’s entry does not dispose of

all the claims against both Huntington and Greer.           Consequently, we lack

jurisdiction to decide the merits of this case.

       {¶9} Furthermore, this court notes its growing concern over trial court

magistrates and their understanding of their role in the judicial system.

       Pursuant to Civil Rule 53, a magistrate may be appointed by a court
       of record to ‘assist courts of record’ to the limited extent of the
       authorization contained in the order of reference. ‘Subject to the
       terms of the relevant reference, 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.’ Civ.R.
       53(D)(2)(a)(i). Magistrates’ orders are effective without further
       judicial action.

       However, the authority to issue a magistrate’s order must be
       distinguished from a magistrate’s decision, which ‘* * * is not
       effective unless adopted by the court.’ Civ.R. 53(D)(4)(A).

(Footnote omitted.) Roychoudhury v. Roychoudhury, 3d Dist. Union No. 14-14-

19, 2015-Ohio-2213, ¶ 25-26 (Rogers, P.J., concurring).

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       {¶10} “With increasing frequency this court has noticed magistrates’

decisions, which are articulated in terms of authority and decisiveness, and which

express an attitude of finality.” Id. at ¶ 27. In this case, the magistrate’s decision

states eight times, in bold print and capitalized letters either: “It is therefore

ORDERED, ADJUDGED, AND DECREED” or “It is further ORDERED,

ADJUDGED, AND DECREED.” (Emphasis sic.) (Docket No. 115, p. 11-12).

       {¶11} Every 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 authorized by law and the Civil Rules causes participants in the

legal system to question the role of the trial judge.”       Roychoudhury at ¶ 28

(Rogers, P.J., concurring). “The final responsibility lies with the trial judge, and

no conduct should be permitted which allows anyone to question that role.” Id.,

citing Vian v. Vian, 3d Dist. Mercer No. 10-13-05, 2013-Ohio-4560, ¶ 54 (Rogers,

J., concurring).

       {¶12} Accordingly, for the aforementioned reasons, the appeal and cross-

appeal are dismissed for lack of jurisdiction

                                                          Appeal and Cross-Appeal
                                                                    are Dismissed
PRESTON and WILLAMOWSKI, J.J., concur.

/jlr


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