Court of Appeals of Ohio, Eleventh District, Geauga
Appeal from the Chardon Municipal Court, Case No. 2017 CVF
00108. Judgment: Appeal dismissed.
Mullen and David A. Head, Weltman, Weinber & Reis Co.,
LPA, 965 Keynote Circle, Brooklyn Heights, OH 44131 (For
Timothy J. Duff and Andrew S. Pollis, Milton A. Kramer Law
Clinic Center, Case Western Reserve, School of Law, 11075
East Boulevard, Cleveland, OH 44106 (For
CYNTHIA WESTCOTT RICE, P.J.
Appellant, Joy L. Bennington, appeals from the trial
court's June 8, 2017 judgment entry. In that entry, the
trial court denied appellant's motion to set aside the
May 19, 2017 magistrate's order. Appellant indicates on
her Docketing Statement that there is a right to an immediate
appeal from the June 8th judgment under R.C. 2711.02(C). More
specifically, appellant claims that the appeal is immediately
appealable under R.C. 2711.02(C), because under the statute
an order denying a stay pending arbitration is a final order.
Upon an initial jurisdictional review of the appeal, this
court found that there may not be a final appealable order
because the trial court's order did not grant or deny a
motion to stay pending arbitration. On July 27, 2017, an
order was issued by this court instructing appellant to show
cause as to why the appeal should not be dismissed for lack
of a final appealable order.
Appellant responded to the show cause order on August 8,
2017, indicating that the trial court did not
"explicitly deny her motion" [for stay] but over
her objections "proceeded to impose tight deadlines for
completing discovery, filing dispositive motions and
preparing for trial." In taking these steps, appellant
posits that the trial court "effectively denied"
her motion for stay pending arbitration.
The record shows that on February 10, 2017, appellee,
Discover Bank, initiated an action to collect a credit card
debt against appellant in the amount of $12, 642.01 plus
On March 31, 2017, appellant filed a motion to stay
proceedings pending arbitration. On May 19, 2017, a
magistrate's order was issued, which indicated that the
parties agreed to a certain time table for the disposition of
the action. The order set forth those deadlines and scheduled
the case for trial for December 14, 2017, at 1:30 p.m.
Appellant filed a motion to set aside the May 19th
magistrate's order on May 30, 2017, and on June 8, 2017,
the trial court issued the appealed judgment denying the
motion to set aside. In that entry, the court stated
"the setting of the time- table for disposition does not
equate to waiving [a] right to arbitration. The Court is
required to set dates for disposition as time limits are set
by the Supreme Court Rules of Superintendence."
We must determine if the entry appealed from is a final
appealable order. According to Section 3(B)(2), Article IV of
the Ohio Constitution, a judgment of a trial court can only
be immediately reviewed by an appellate court if it
constitutes a "final order" in the action.
Estate of Biddlestone, 11th Dist. Trumbull No.
2010-T-0131, 2011-Ohio-1299, ¶ 3. If a lower court's
order is not final, an appellate court has no jurisdiction to
review the matter and the matter must be dismissed. Gen.
Acc. Ins. Co. v. Ins. of N. Am., 44 Ohio St.3d 17, 20
(1989). For a judgment to be final and appealable, it must
satisfy the requirements of R.C. 2505.02 and, if applicable,
Pursuant to R.C. 2505.02(B), there are seven categories of a
"final order, " and if the trial court's
judgment satisfies any of them, it will be deemed a
"final order and can be immediately appealed and
reviewed by a court of appeals.
R.C. 2505.02(B) states that:
"An order is a final order that may be reviewed,
affirmed, modified, or reversed, with or without ...