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Semple v. 2201 Inc.

Court of Appeals of Ohio, Eleventh District

September 30, 2013

NEIL SEMPLE, et al., Plaintiffs-Appellees,
v.
2201, INC., et al., Defendants-Appellants.

Civil Appeal from the Portage County Court of Common Pleas. Case No. 2011 CV 00922. Judgment: Appeal dismissed.

Ellen Marie McCarthy and Brenda M Johnson, Nurenberg, Paris, Heller & McCarthy Co., LPA, (For Plaintiffs-Appellees).

Joshua D. Nolan, Buckingham, Doolittle & Burroughs, L.L.P., E. John Brzytwa and James L McCrystal, Jr, Brzytwa, Quick & McCrystal, L.L.C., (For Defendants-Appellants).

MEMORANDUM OPINION

TIMOTHY P. CANNON, P.J.

(1} This cause came to be heard on appellees' motion to dismiss the within appeal for lack of a final, appealable order; appellants' brief in opposition; and appellees' reply brief. Also before the court are appellants' motions to consolidate and to strike.

(2} Section 3(B)(2), Article IV of the Ohio Constitution provides that this court has such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of inferior courts within our district. The laws enacted by the general assembly pertinent to this appeal are R.C. 2505.02 and R.C. 2715.46. If neither of these sections establishes that the order appealed from is final, this court is without jurisdiction to hear the within appeal.

(¶3} The order appealed from, as indicated by appellants, is an order issued by the trial court, dated March 21, 2013. That order is very limited in scope. It merely determined who would hold funds that were previously made the subject of a prejudgment attachment by the magistrate's decision, dated January 29, 2013. At the time of the court's March 21, 2013 order, objections to that magistrate's decision were pending. Following a hearing, the trial court overruled the objections and adopted the magistrate's decision in an order dated July 25, 2013. That order is now the subject of a second appeal, 11th Dist. No. 2013-P-0068, which is also pending in this court. Appellants have filed a motion to consolidate the within case with this new appeal and a motion to strike information contained in appellees' reply brief concerning their motion to dismiss. However, if this court is without jurisdiction to hear the within appeal, it must be dismissed, rendering appellants' motion to consolidate and motion to strike moot.

(¶4} In addition to the trial court's March 21, 2013 order, appellants contend they are appealing the magistrate's decisions of March 8, 2012, and January 29, 2013; however, those decisions are the subject of objections and the trial court's order of July 25, 2013, and thus are not final and appealable.

(¶5} First, appellants argue that the March 21, 2013 order is final and appealable because it affects a substantial right and was made in a special proceeding. R.C. 2505.02(B) provides:

An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
(2) An order that affects a substantial right made in a special proceeding * * *

(¶6} Further, R.C. 2505.02(A)(1) provides: "'Substantial right' means a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect."

(¶7} In addition, R.C. 2505.02(A)(2) provides: "'Special proceeding' means an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity."

(¶8} Thus, the issue presented is whether the trial court's March 21, 2013 order was final and appealable pursuant to R.C. 2505.02(B)(2), i.e., an order that affects a substantial right made in a special proceeding. Under this definition, this court must first determine whether the order was entered in a special proceeding. It has been held that an "attachment is a special proceeding ancillary to the action, but so independent of it that an order in the attachment proceeding may, when final, be the subject of [an appeal] during the pendency of the action." Hamilton v. ...


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