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LLC v. College Town Kent, LLC

Court of Appeals of Ohio, Eleventh District, Portage

June 25, 2018

BAR 145 FRANCHISING, LLC, Plaintiff-Appellee,
v.
COLLEGE TOWN KENT, LLC, Defendant-Appellant.

          Civil Appeal from the Portage County Court of Common Pleas. Case No. 2017 CV 00928.

          John A. Borell, Jr., Henry J. Geha, and Anthony Lawrence Hunter, Marshall & Melhorn, LLC, (For Plaintiff-Appellee).

          Jon J. Pinney, Justine L Konicki, and Andrew J. Wilber, Kohrman Jackson & Krantz LLP, For Defendant-Appellant).

          MEMORANDUM OPINION

          TIMOTHY P. CANNON, J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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 court.

         {¶4} 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.

         {¶5} College Town filed this appeal from both the November 20, 2017 magistrate's order and the December 22, 2017 judgment entry.

         {¶6} 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).

         {¶7} In analyzing whether these entries are final and appealable, we initially note the important distinctions between "magistrate's orders" and "magistrate's decisions."

         {¶8} "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." Civ.R. 53(D)(1)(a).

         {¶9} "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) & (D)(4)(a).

         {¶10} 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 ...


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