Court of Appeals of Ohio, Eleventh District, Portage
Appeal from the Portage County Court of Common Pleas. Case
No. 2017 CV 00928.
A. Borell, Jr., Henry J. Geha, and Anthony Lawrence Hunter,
Marshall & Melhorn, LLC, (For Plaintiff-Appellee).
Pinney, Justine L Konicki, and Andrew J. Wilber, Kohrman
Jackson & Krantz LLP, For Defendant-Appellant).
TIMOTHY P. CANNON, J.
On December 29, 2017, appellant, College Town Kent, LLC,
filed an appeal from two different entries issued in the
Portage County Court of Common Pleas.
Appellee, Bar 145 Franchising, LLC, commenced this action on
October 23, 2017, alleging breach of a written lease
agreement between the parties. Bar 145 sought monetary
damages, declaratory judgment, and specific performance. Bar
145 also moved the trial court for a temporary restraining
order and a preliminary injunction.
The trial court issued a temporary restraining order, and a
hearing was held before the magistrate on the motion for
preliminary injunction. On November 20, 2017, an order was
issued by the magistrate granting the motion for preliminary
injunction. That order was also signed by the trial court
judge. On December 1, 2017, College Town moved to set aside
the order. That motion has yet to be ruled on by the trial
On December 5, 2017, Bar 145 filed an emergency motion to
show cause arguing that College Town should be found in
contempt for violating the preliminary injunction order and
that sanctions should be imposed. On December 22, 2017, after
an evidentiary hearing, the magistrate issued an order
granting Bar 145's motion to show cause and found College
Town in contempt for violating the preliminary injunction
order. That same day, the trial court issued a judgment entry
adopting the magistrate's order.
College Town filed this appeal from both the November 20,
2017 magistrate's order and the December 22, 2017
Under Section 3(B)(2), Article IV of the Ohio Constitution, a
judgment of a trial court can be immediately reviewed on
appeal only if it constitutes a "final order" in
the action. Germ v. Fuerst, 11th Dist. Lake No.
2003-L-116, 2003-Ohio-6241, ¶3. If a lower court's
order is not final, then an appellate court has no
jurisdiction to review it, and the matter must be dismissed.
Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio
St.3d 17, 20 (1989).
In analyzing whether these entries are final and appealable,
we initially note the important distinctions between
"magistrate's orders" and
"A court of record may, for one or more of the purposes
described in Civ.R. 53(C)(1), refer a particular case or
matter or a category of cases or matters to a magistrate by a
specific or general order of reference or by rule."
"Subject to the terms of the relevant reference, a
magistrate shall prepare a magistrate's decision
respecting any matter referred under Civ.R. 53(D)(1)."
Civ.R. 53(D)(3)(a)(i) (emphasis added). "A party may
file written objections to a magistrate's decision,"
but the "magistrate's decision is not effective
unless adopted by the court." Civ.R. 53(D)(3)(b)(i)
On the other hand, "[s]ubject 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) (emphasis added).
"Any party may file a motion with the court to set aside
a magistrate's order," but the "pendency of a
motion to set aside does not stay the effectiveness of the
magistrate's order, though the ...