Bunting v. Weaver

2018 Ohio 1465

• Court: Ohio Court of Appeals
• Decided: April 12, 2018
• Docket: 2017AP120035
• Status: Published

Opinion

[Cite as Bunting v. Weaver, 2018-Ohio-1465.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

PAUL BUNTING JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellant Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2017 AP 12 0035 THOMAS WEAVER

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2017 CV 04 0270

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: April 12, 2018

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

PAUL BUNTING, PRO SE RICHARD A. NICODEMO ID #395279 124 15th St. NW C/O Belmont Correctional Institution Canton, Ohio 44703 68518 Bannock Road, PO Box 540 St. Clairsville, Ohio 43950-9736 Tuscarawas County, Case No. 2017 AP 12 0035 2

Hoffman, P.J.

{¶1} Plaintiff-appellant Paul Edward Bunting appeals the November 22, 2017

Judgment Entry entered by the Tuscarawas County Court of Common Pleas, which

granted defendant-appellant Thomas A. Weaver’s Motion for Relief from Judgment.

STATEMENT OF THE FACTS AND CASE1

{¶2} On August 4, 2000, Appellant pled no contest to one count of rape, in

violation of R.C. 2907.02, and six counts of sexual battery, in violation of R.C. 2907.03.

Via judgment entry filed August 9, 2000, the trial court found Appellant guilty and

sentenced him to a total aggregate term of eighteen years in prison. Prior to his

incarceration in the state penal system, Appellant entered into an agreement with

Appellee to store a “1977 Chevrolet half-ton custom 4 by 4 black-on-black panel van” and

“a 1977 Honda CB350cc full-custom chopper motorcycle” on Appellee's farm until

Appellant’s release from prison. The agreement was actually between Appellant's mother

and Appellee.

{¶3} After Appellant's mother died, Appellee sought the removal of the van from

his property with the assistance of Chief Deputy Orvis Campbell of the Tuscarawas

County Sheriff’s Department. The motorcycle had been destroyed in a fire a number of

years earlier. On May 13, 2013, Chief Deputy Campbell forwarded a letter to Appellant

requesting the removal of the van by Monday, June 24, 2013, or the vehicle would be

towed. Because Appellant did not make arrangements to have the vehicle moved, the

1 Some of the facts set forth herein are taken from previous Appeals involving Appellant. See, State v. Bunting, 5th Dist. Stark No.2006CA00330, 2007–Ohio–2184, and State ex. rel. Bunting v. Styer, Tuscarawas App. No. 2014 AP 12 0054, 2015-Ohio-3662. Tuscarawas County, Case No. 2017 AP 12 0035 3

van was towed as abandoned and was disposed of in accordance with the abandoned

and junk motor vehicle laws of Ohio.

{¶4} On April 18, 2017, Appellant filed a pro se complaint for conversion and

breach of agreement in the Tuscarawas County Court of Common Pleas. Over the years,

Appellant has attempted to have Appellee prosecuted for the theft of the vehicles, and

has filed at least one other complaint against Appellee for conversion and breach of

contract.2 In a correspondence dated May 31, 2017, to the Tuscarawas County Clerk of

Court, Barbara Weaver Scott, Appellee’s power of attorney, explained Appellee is her 88

year old uncle and is currently a resident in a nursing home. Scott indicated a similar

complaint filed by Appellant in Belmont County in 2016, had been dismissed based upon

Chief Deputy Campbell’s May 13, 3013, letter, which is discussed supra.

{¶5} On August 7, 2017, Appellant filed a motion requesting the trial court strike

Scott’s May 31, 2017 communication. Scott sent a letter dated August 16, 2017, directly

to the trial court. Therein, she reiterated the information set forth in her May 31, 2017

correspondence to the Clerk of Court and noted Appellee was in hospice care. Via

Judgment Entry filed August 22, 2017, the trial court granted Appellant’s motion to strike

the May 31, 2017 communication.

{¶6} Appellant filed a motion for default judgment on August 24, 2017. Via

Judgment Entry filed September 5, 2017, the trial court granted default judgment in favor

of Appellant on the issue of liability only, and scheduled the matter for evidentiary hearing

on the issue of damages.

2See, State ex. rel. Bunting, supra, fn 1; Bunting v. Weaver, 7th Dist. Belmont App. No. 16 BE 0044, 2017-Ohio-7017. Tuscarawas County, Case No. 2017 AP 12 0035 4

{¶7} On September 7, 2017, Appellee filed a reply to Appellant’s motion for

default judgment and motion for leave to plead. On September 11, 2017, the trial court

granted Appellee’s request for an enlargement of time within which to answer, move, or

otherwise plead to the complaint. Appellee filed an answer, denying the allegations and

setting forth affirmative defenses, on September 26, 2017.

{¶8} Appellant filed a Civ. R. 60(B) motion for relief from judgment to vacate the

trial court’s September 11, 2017 Judgment Entry. On October 13, 2017, Appellee filed a

motion for relief from judgment pursuant to Civ. R. 55(B) and 60(B)(1) and (5). Appellant

filed a number of briefs in opposition to Appellee’s motion, including a motion to strike

and a motion for leave to reply to Appellee’s answer. The trial court established a briefing

schedule. Appellee filed replies to Appellant’s motions.

{¶9} Via Judgment Entry filed November 22, 2017, the trial court granted

Appellee’s motion for relief from judgment, and vacated the September 5, 2017 Judgment

Entry, granting default judgment in favor of Appellant.

{¶10} It is from this judgment entry Appellant appeals, raising as his sole

assignment of error:

TRIAL COURT ABUSED ITS DISCRETION AND PREJUDICIALLY

ERRED IN GRANTING APPELLEE’S CIVIL RULE 60(B) MOTION FOR

RELIEF FROM THE SEPTEMBER 5, 2017, DEFAULT JUDGMENT

ENTERED BY THE COURT. Tuscarawas County, Case No. 2017 AP 12 0035 5

{¶11} This case comes to us on the accelerated calendar. App.R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

{¶12} (E) Determination and judgment on appeal.

{¶13} The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.

{¶14} The decision may be by judgment entry in which case it will not be published

in any form.

{¶15} This appeal shall be considered in accordance with the aforementioned

rule.

I

{¶16} For the following reasons, we will not address Appellant’s assignment of

error as we dismiss the appeal for want of jurisdiction.

{¶17} A court of appeals only has jurisdiction over orders that are both final under

Civ.R. 54(B) and appealable under R.C. 2505.02. Grogan v. Grogan Co. Inc. (2001), 143

Ohio App.3d 548. This court, as well as other Ohio courts, have determined that an order

directed to only a portion of the claims or motions pending in a case is not a final

appealable order. Such an order is distinguishable from ones which adjudicate all pending

claims and motions in the proceeding. See Barth v. Barth, Cuyahoga App. No. 83063,

2003-Ohio-5661. A judgment that leaves issues unresolved and contemplates further

action is not a final appealable order. Circelli v. Keenan Constr., 165 Ohio App.3d 494,

500, 2006-Ohio-949. Tuscarawas County, Case No. 2017 AP 12 0035 6

{¶18} Generally, the granting of Civil Rule 60(B) motion for relief from judgment

which vacates a default judgment is a final order. GTE Automatic Elec. Co. v. ARC Indus.,

Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph one of the syllabus. However,

a default judgment which determines the issue of liability, but continues the matter for a

determination of damages is not a final judgment. See, Prather v. American Medical

Response, Inc., 2002 Ohio 5261 at ¶ 10; Wolford v. Newark City School Dist. Bd. of Educ.

(1991), 73 Ohio App.3d 218, 596 N.E.2d 1085; Arledge v. Brown, 5th Dist. No.2006-CA-

11, 2007-Ohio-57, ¶ 4.

{¶19} Because the trial court granted default judgment only on the issue of liability,

we find the judgment entry granting Appellee’s motion for relief from that interlocutory

order is not a final appealable order. Accordingly, we lack jurisdiction over this matter.

{¶20} For the foregoing reasons, the appeal is dismissed.

By: Hoffman, P.J.

Delaney, J. and

Wise, Earle, Jr., J. concur