[Cite as Daniel v. Walder, 2018-Ohio-3195.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
HARVEY DANIEL : : Plaintiff-Appellant : Appellate Case No. 27709 : v. : Trial Court Case No. 2017-CVI-1917 : RACHELE WALDER : (Civil Appeal from : Municipal Court) Defendant-Appellee : :
...........
OPINION
Rendered on the 10th day of August, 2018.
HARVEY DANIEL, 1211 Harvard Boulevard, Dayton, Ohio 45406 Plaintiff-Appellant, Pro Se
RACHELE WALDER, P.O. Box 231, Dayton, Ohio 45404 Defendant-Appellee, Pro Se
.............
FROELICH, J. -2-
{¶ 1} Harvey Daniel appeals from a judgment of the Dayton Municipal Court which
overruled, as untimely, his objections to a magistrate’s decision dismissing his small
claims action against Rachele Walder for breach of contract. For the following reasons,
Daniel’s appeal will be dismissed.
I. Procedural History
{¶ 2} On April 19, 2017, Daniel filed a breach of contract action against Walder
related to work performed at 2117 Stegman Avenue in Dayton pursuant to a contract
entered on June 9, 2016. The complaint sought $6,000 in damages. The clerk of court
attempted unsuccessfully to serve Walder with the complaint.
{¶ 3} On May 16, 2017, a magistrate, sua sponte, filed a decision dismissing the
action. The entry stated that the “subject matter [was] previously litigated under Case
No. 16 CVI 5221.” Attached to the magistrate’s decision was a copy of a small claims
complaint filed by Daniel against Walder on November 4, 2016, alleging breach of a
contract entered on June 9, 2016 for work done at the same Stegman Avenue address.
The 2016 complaint had sought $5,000 in damages.
{¶ 4} The next day, May 17, the magistrate held a hearing, informing Daniel of the
dismissal. (The record does not indicate how Daniel knew of the hearing, and there is
no indication that Walder had notice of the hearing or was present.) After greeting Daniel
and a witness, the following exchange occurred between the magistrate and Daniel:
THE COURT: It will be brief, so you don’t need to get comfortable.
I noted that this case was filed, I believe a couple weeks ago when it came
before me, where I got notice of it. I do note that this is the same subject -3-
matter that was previously litigated. In fact, I presided over that case. The
law does not allow matters to be re-litigated. As such, as a matter of law[,]
this case is barred. I do also note that the other case is currently still
pending. As such, based upon that, this case is hereby dismissed. I
actually did the entry yesterday, and you will be receiving it in the mail.
PLAINTIFF: Your Honor, this is a different contract than the other
contract.
THE COURT: The complaints were exactly the same. So, you can
feel free to resubmit a different complaint if you believe that is, in fact[,] the
case and at that point in time, we can look at it. But, I can tell you having
looked at your previous case, in addition to this case, the complaints are
exactly the same. The only thing that changed was the amounts. So, at
this juncture I hereby dismiss this case. Sir, you can feel free to refile it if
you desire, but keep in mind that if the complaint is exactly verbatim the
same as the previous complaint that in all likelihood anybody is going to
think it’s the same case. Alright, so that’s my decision, sir. Have a good
day.
{¶ 5} There is no filing in the record indicating that the magistrate’s ruling was
served on the parties within three days, as required by Civ.R. 53(D)(3)(a)(iii).
{¶ 6} On May 23, 2017, prior to service of the magistrate’s decision, the trial court
issued a judgment entry adopting the magistrate’s decision and stating that the action
was dismissed because the subject matter had previously been litigated in Case No. 16
CVI 5221. -4-
{¶ 7} According to the trial court’s docket, on May 31, 2017, the clerk of court
served the May 16 magistrate’s decision “on all required parties and counsel” by ordinary
mail. The same date, the clerk filed a “notice of final appealable order,” indicating that a
final appealable order had been filed on May 23, 2017. Certificates of mailing were also
filed on May 31; the docket suggests that these certificates referred to the mailing of the
trial court’s May 23 judgment entry.
{¶ 8} On June 14, 2017, Daniel filed an objection to the magistrate’s decision.
Daniel argued that, although the “cover sheets” (i.e., complaints) were identical, the two
actions – 16 CVI 5221 and 17 CVI 1917 -- addressed two different contracts signed by
the parties on the same date. Daniel attached copies of the contracts to his objections.
Daniel further indicated that, during the 2016 case, the magistrate told him in open court
that he could file a separate action regarding the second contract. Daniel argued that
the magistrate erred in dismissing the second action without reviewing the second
{¶ 9} On August 15, 2017, the trial court overruled Daniel’s objections to the
magistrate’s decision. The trial court found that Daniel’s objections were untimely,
because they were not filed within 14 days of the magistrate’s decision, which was filed
on May 16, 2017.
{¶ 10} Daniel appeals from the trial court’s August 15, 2017 judgment.
II. Timeliness of Appeal
{¶ 11} On appeal, Daniel claims that the trial court erred by failing to rule on the
merits of his objections and in concluding that the subject matter of this case had been
previously litigated. Daniel has attached to his appellate brief a page from a transcript in -5-
Case No. 2016 CVI 5221, which purports to show that Daniel had two contracts with
Walder relating to the same address and that the magistrate returned one contract to
Daniel because it was not at issue in that 2016 litigation. We do not reach the merits of
Daniel’s assignments of error, because we conclude that Daniel has not timely appealed
from the trial court’s final judgment.
{¶ 12} The Ohio Rules of Civil Procedure require a magistrate’s decision to be in
writing, signed by the magistrate, filed with the clerk, and served on the parties or their
attorneys within three days. Civ.R. 53(D)(3)(a)(iii). A party wishing to object to the
magistrate’s decision must file written objections within 14 days of the filing of the
magistrate’s decision. Civ.R. 53(D)(3)(b)(i). For good cause shown, the trial court shall
allow a reasonable extension of time for a party to file objections to a magistrate’s
decision. Civ.R. 53(D)(5). “Good cause” includes a failure by the clerk to timely serve
the magistrate’s decision on the party seeking the extension. Id.
{¶ 13} The trial court may enter judgment on a magistrate’s decision “either during
the fourteen days permitted * * * for the filing of objections to a magistrate’s decision or
after the fourteen days have expired.” Civ.R. 53(D)(4)(e)(i). If the court enters judgment
during the 14 days, the timely filing of objections operates as an automatic stay of
execution of the judgment until the court disposes of the objections. Id. In ruling on
timely objections, the court “shall undertake an independent review as to the objected
matters.” Civ.R. 53(D)(4)(d).
{¶ 14} When timely objections are not filed, the trial court may adopt a magistrate’s
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[Cite as Daniel v. Walder, 2018-Ohio-3195.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
HARVEY DANIEL : : Plaintiff-Appellant : Appellate Case No. 27709 : v. : Trial Court Case No. 2017-CVI-1917 : RACHELE WALDER : (Civil Appeal from : Municipal Court) Defendant-Appellee : :
...........
OPINION
Rendered on the 10th day of August, 2018.
HARVEY DANIEL, 1211 Harvard Boulevard, Dayton, Ohio 45406 Plaintiff-Appellant, Pro Se
RACHELE WALDER, P.O. Box 231, Dayton, Ohio 45404 Defendant-Appellee, Pro Se
.............
FROELICH, J. -2-
{¶ 1} Harvey Daniel appeals from a judgment of the Dayton Municipal Court which
overruled, as untimely, his objections to a magistrate’s decision dismissing his small
claims action against Rachele Walder for breach of contract. For the following reasons,
Daniel’s appeal will be dismissed.
I. Procedural History
{¶ 2} On April 19, 2017, Daniel filed a breach of contract action against Walder
related to work performed at 2117 Stegman Avenue in Dayton pursuant to a contract
entered on June 9, 2016. The complaint sought $6,000 in damages. The clerk of court
attempted unsuccessfully to serve Walder with the complaint.
{¶ 3} On May 16, 2017, a magistrate, sua sponte, filed a decision dismissing the
action. The entry stated that the “subject matter [was] previously litigated under Case
No. 16 CVI 5221.” Attached to the magistrate’s decision was a copy of a small claims
complaint filed by Daniel against Walder on November 4, 2016, alleging breach of a
contract entered on June 9, 2016 for work done at the same Stegman Avenue address.
The 2016 complaint had sought $5,000 in damages.
{¶ 4} The next day, May 17, the magistrate held a hearing, informing Daniel of the
dismissal. (The record does not indicate how Daniel knew of the hearing, and there is
no indication that Walder had notice of the hearing or was present.) After greeting Daniel
and a witness, the following exchange occurred between the magistrate and Daniel:
THE COURT: It will be brief, so you don’t need to get comfortable.
I noted that this case was filed, I believe a couple weeks ago when it came
before me, where I got notice of it. I do note that this is the same subject -3-
matter that was previously litigated. In fact, I presided over that case. The
law does not allow matters to be re-litigated. As such, as a matter of law[,]
this case is barred. I do also note that the other case is currently still
pending. As such, based upon that, this case is hereby dismissed. I
actually did the entry yesterday, and you will be receiving it in the mail.
PLAINTIFF: Your Honor, this is a different contract than the other
contract.
THE COURT: The complaints were exactly the same. So, you can
feel free to resubmit a different complaint if you believe that is, in fact[,] the
case and at that point in time, we can look at it. But, I can tell you having
looked at your previous case, in addition to this case, the complaints are
exactly the same. The only thing that changed was the amounts. So, at
this juncture I hereby dismiss this case. Sir, you can feel free to refile it if
you desire, but keep in mind that if the complaint is exactly verbatim the
same as the previous complaint that in all likelihood anybody is going to
think it’s the same case. Alright, so that’s my decision, sir. Have a good
day.
{¶ 5} There is no filing in the record indicating that the magistrate’s ruling was
served on the parties within three days, as required by Civ.R. 53(D)(3)(a)(iii).
{¶ 6} On May 23, 2017, prior to service of the magistrate’s decision, the trial court
issued a judgment entry adopting the magistrate’s decision and stating that the action
was dismissed because the subject matter had previously been litigated in Case No. 16
CVI 5221. -4-
{¶ 7} According to the trial court’s docket, on May 31, 2017, the clerk of court
served the May 16 magistrate’s decision “on all required parties and counsel” by ordinary
mail. The same date, the clerk filed a “notice of final appealable order,” indicating that a
final appealable order had been filed on May 23, 2017. Certificates of mailing were also
filed on May 31; the docket suggests that these certificates referred to the mailing of the
trial court’s May 23 judgment entry.
{¶ 8} On June 14, 2017, Daniel filed an objection to the magistrate’s decision.
Daniel argued that, although the “cover sheets” (i.e., complaints) were identical, the two
actions – 16 CVI 5221 and 17 CVI 1917 -- addressed two different contracts signed by
the parties on the same date. Daniel attached copies of the contracts to his objections.
Daniel further indicated that, during the 2016 case, the magistrate told him in open court
that he could file a separate action regarding the second contract. Daniel argued that
the magistrate erred in dismissing the second action without reviewing the second
{¶ 9} On August 15, 2017, the trial court overruled Daniel’s objections to the
magistrate’s decision. The trial court found that Daniel’s objections were untimely,
because they were not filed within 14 days of the magistrate’s decision, which was filed
on May 16, 2017.
{¶ 10} Daniel appeals from the trial court’s August 15, 2017 judgment.
II. Timeliness of Appeal
{¶ 11} On appeal, Daniel claims that the trial court erred by failing to rule on the
merits of his objections and in concluding that the subject matter of this case had been
previously litigated. Daniel has attached to his appellate brief a page from a transcript in -5-
Case No. 2016 CVI 5221, which purports to show that Daniel had two contracts with
Walder relating to the same address and that the magistrate returned one contract to
Daniel because it was not at issue in that 2016 litigation. We do not reach the merits of
Daniel’s assignments of error, because we conclude that Daniel has not timely appealed
from the trial court’s final judgment.
{¶ 12} The Ohio Rules of Civil Procedure require a magistrate’s decision to be in
writing, signed by the magistrate, filed with the clerk, and served on the parties or their
attorneys within three days. Civ.R. 53(D)(3)(a)(iii). A party wishing to object to the
magistrate’s decision must file written objections within 14 days of the filing of the
magistrate’s decision. Civ.R. 53(D)(3)(b)(i). For good cause shown, the trial court shall
allow a reasonable extension of time for a party to file objections to a magistrate’s
decision. Civ.R. 53(D)(5). “Good cause” includes a failure by the clerk to timely serve
the magistrate’s decision on the party seeking the extension. Id.
{¶ 13} The trial court may enter judgment on a magistrate’s decision “either during
the fourteen days permitted * * * for the filing of objections to a magistrate’s decision or
after the fourteen days have expired.” Civ.R. 53(D)(4)(e)(i). If the court enters judgment
during the 14 days, the timely filing of objections operates as an automatic stay of
execution of the judgment until the court disposes of the objections. Id. In ruling on
timely objections, the court “shall undertake an independent review as to the objected
matters.” Civ.R. 53(D)(4)(d).
{¶ 14} When timely objections are not filed, the trial court may adopt a magistrate’s
decision unless it determines that there is an error of law or other defect evident on the
face of the magistrate’s decision. Civ.R. 53(D)(4)(c). In the absence of timely -6-
objections, any appeal from the trial court’s judgment must be filed in accordance with
App.R. 4. The party may not assign as error on appeal the trial court’s adoption of any
factual finding or legal conclusion unless the party has objected to that finding or
conclusion. Civ.R. 53(D)(3)(b)(iv).
{¶ 15} In this case, the magistrate’s decision was filed on May 16, 2017. Under
the 14-day period allowed by Civ.R. 53(D)(3)(b)(i), Daniel was required to file any
objections by May 30, 2017. Daniel did not do so, although it appears that Daniel had
not yet been served with the magistrate’s decision when the deadline expired.
{¶ 16} The trial court’s judgment adopting the magistrate’s decision and dismissing
the action was filed on May 23, 2017, and Daniel was (untimely) served with notice of that
final appealable order on May 31, 2017. See Civ.R. 58(B) (requiring the clerk to serve
the parties and note the service in the appearance docket within 3 days of the trial court’s
entering the judgment on the journal).
{¶ 17} Daniel filed untimely objections to the magistrate’s decision on June 14,
2017. A court may consider untimely objections but only “so long as the trial court has
not entered a final judgment.” (Emphasis sic.) Learning Tree Academy, Ltd. v.
Holeyfield, 12th Dist. Butler No. CA2013-10-194, 2014-Ohio-2006, ¶ 15, fn. 2; see also
Thompson v. Thompson, 2d Dist. Montgomery No. 27394, 2017-Ohio-8192, ¶ 9. After a
trial court has entered a final judgment, the court cannot consider objections. See
Murray v. Goldfinger, Inc., 2d Dist. Montgomery No. 19433, 2003-Ohio-459, ¶ 5, citing
Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 379, 423 N.E.2d 1105 (1981). Because
the trial court had already entered judgment when Daniel filed his untimely objections, the
trial court did not err in failing to consider the merits of those objections. -7-
{¶ 18} Moreover, because Daniel’s objections were untimely, the objections did
not operate to stay the trial court’s judgment, and Daniel had 30 days from the date when
the clerk (untimely) completed service of the May 23, 2017 judgment to appeal. See
App.R. 4(A)(3). Alternatively, Daniel was required seek relief from the final judgment
through a motion for relief from judgment under Civ.R. 60(B). Id. at ¶ 5; Learning Tree
at ¶ 16.
{¶ 19} We recognize that, according to the trial court’s docket, the clerk did not
mail the magistrate’s decision to Daniel until May 31, 2017, after the time for filing
objections had expired. Had Daniel been served with the magistrate’s decision within
the 14-day period for filing objections, he could have requested an extension of time to
file his objections. See Civ.R. 53(D)(5). However, the clerk’s service of the magistrate’s
decision both after the 14-day period and after the trial court had entered a final judgment
precluded Daniel from being able to file timely objections and from seeking an extension
of time to file objections. On June 14, 2017 (when Daniel filed his untimely objections),
Daniel’s only options were to file a timely appeal from the May 23, 2017 judgment or to
seek relief from that judgment, pursuant to Civ.R. 60(B).
{¶ 20} Daniel has appealed from the trial court’s August 15, 2017 judgment
overruling his untimely objections. However, the trial court lacked jurisdiction to enter
the judgment from which Daniel now appeals. Murray at ¶ 5. “[U]ntimely objections
filed after entry of a final judgment are tantamount to a motion for reconsideration, which
is a nullity.” Id.; see also, e.g., In re L.J.G., 11th Dist. Trumbull No. 2012-T-0014, 2012-
Ohio-5228, ¶ 11-12; Levy v. Ivie, 10th Dist. Franklin No. 10AP-1185, 2011-Ohio-4055, ¶
15; In re J.A.M., 12th Dist. Butler No. CA2010-07-174, 2011-Ohio-668, ¶ 15-16. -8-
Consequently, the trial court’s August 15, 2017 judgment overruling those objections was
also a nullity. See, e.g., Murray at ¶ 6; see also State ex rel. White v. Richard, 2018-
Ohio-2696, ___ N.E.3d ___, ¶ 7 (application for reconsideration was a nullity, as was the
court’s judgment denying that application).
{¶ 21} In summary, without timely objections to the magistrate’s decision, the trial
court’s May 23, 2017 judgment remained the final appealable order. Daniel did not
timely appeal from the trial court’s May 23, 2017 final judgment, and the August 15, 2017
judgment from which he did appeal was a legal nullity. Accordingly, Daniel’s appeal must
be dismissed. We note, however, that nothing in this Opinion precludes Daniel from filing
a Civ.R. 60(B) motion with the trial court, seeking relief from the May 23, 2017 judgment
and requesting an extension of time to object to the magistrate’s decision.
III. Conclusion
{¶ 22} Daniel’s appeal from the August 15, 2017 judgment will be dismissed.
HALL, J. and TUCKER, J., concur.
Copies mailed to:
Harvey Daniel Rachele Walder Hon. Christopher D. Roberts