[Cite as Downard v. Gilliland, 2011-Ohio-1783.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT JACKSON COUNTY
SHERI DOWNARD, :
Plaintiff-Appellee, : Case No. 10CA2
vs. :
DANNY GILLILAND, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Marie Moraleja Hoover and R. Tracy Hoover, 621 7th Street, Portsmouth, Ohio 45662
COUNSEL FOR APPELLEE: William S. Cole, 227 East Main Street, Jackson, Ohio 45640 _________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 3-30-11
ABELE, J.
{¶ 1} This is an appeal from a Jackson County Common Pleas Court “judgment” that
(1) ordered Danny Gilliland, defendant below and appellant herein, to convey a one-half interest
in certain real estate to Sheri Downard, plaintiff below and appellee herein; and (2) ordered
appellant to pay appellee the amount of money she contributed towards the purchase of a vehicle.
{¶ 2} Appellant raises the following assignments of error for review: JACKSON, 10CA2 2
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING THAT THE REAL PROPERTY THAT WAS OWNED BY DEED BY THE APPELLANT WAS BEING HELD BY APPELLANT IN CONSTRUCTIVE TRUST FOR THE BENEFIT OF APPELLEE; AND SAID DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THAT THERE WAS NO EVIDENCE OF FRAUD, WRONGDOING, DURESS, ETC.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING THAT THE VEHICLE WAS PURCHASED WITH JOINT FUNDS AND THAT APPELLANT PAY TO THE APPELLEE THE SUM CONTRIBUTED BY APPELLEE WHEN NO EVIDENCE WAS INTRODUCED REGARDING ANY ACTUAL AMOUNTS CONTRIBUTED BY APPELLEE.”
{¶ 3} Appellant and appellee lived together, but never married. During their
cohabitation, the parties purchased property that is the subject of the instant dispute. The first
property involves real estate purchased from appellee’s aunt and uncle. The deed contains both
appellee’s and appellant’s names, but shortly after the parties acquired the property, appellee
quit-claimed her one-half interest to appellant. The second dispute involves a vehicle that the
parties acquired for appellee’s son.
{¶ 4} After the parties’ relationship soured, disputes arose as to the division of property.
Thus, on September 5, 2008, appellee filed a complaint and alleged that she and appellant
acquired the real estate “as joint owners with the right of survivorship, and jointly paid and
contributed equally to the purchase price of Eight Thousand Dollars ($8000.00).” Appellee
averred that appellant persuaded her “to transfer her interest in the premises to him in trust so
that he could arrange financing for construction in his name only.” Appellee alleged that (1) JACKSON, 10CA2 3
appellant fraudulently misrepresented his intentions regarding the transfer of her real estate
interest and that he has been unjustly enriched; (2) appellant holds the property under a
constructive trust; and (3) she and appellant purchased the vehicle for her son with joint funds
and that each owns a one-half interest.
{¶ 5} Appellant filed an answer through counsel. On August 5, 2009, the trial court
permitted counsel to withdraw because appellant discharged his counsel. Appellant did not
retain new counsel.
{¶ 6} On December 30, 2009, the court conducted a bench trial. Appellee testified that
in June 2002, she and appellant purchased real estate from her aunt and uncle. She stated that
she later executed a quit-claim deed that assigned her interest to appellant for no consideration,
but did not intend to relinquish her right to the real estate. Rather, appellee claimed that
appellant advised her that if they put the deed in his name only “the property taxes would be
cheaper.” Appellee stated that she and her son resided on the property with appellant for
approximately three years.
{¶ 7} Appellee further testified that in June 2006, she and appellant used joint funds to
purchase a vehicle. Appellee testified that she believes that she owns a one-half interest in
vehicle. She stated that the parties placed the title in appellant’s name to obtain a lower
insurance rate.
{¶ 8} On February 9, 2010, the trial court issued a “Decision and Order” that
summarized the procedural history of the case and the evidence appellee presented at trial:
“Upon review of the evidence, the Court finds that [appellee] has established that [appellant] holds title to the real estate in a constructive trust for the benefit of both parties and that both parties own a one-half un-divided interest JACKSON, 10CA2 4
in the real estate. As to the motor vehicle the Court finds that the vehicle was purchased with joint funds of the parties for the benefit of [appellee’s] son. It is hereby ordered that [appellant] convey to [appellee] his deed for the one-half un-divided interest in the real property. Said interest shall be subject to the mortgage currently on the real property. It is further ordered that [appellant] pay to [appellee] the sum contributed by [appellee] for the purchase of the pick-up truck. The Court further orders that [appellant] pay the costs herein.”
This appeal followed.
{¶ 9} Initially, we must address a threshold issue. Ohio appellate courts have
jurisdiction to review the final orders of inferior courts within their district. Section 3(B)(2),
Article IV, Ohio Constitution; R.C. 2501.02. A final, appealable order is one that affects a
substantial right and determines the action. R.C. 2505.02(B)(1). If a judgment is not final and
appealable, an appellate court does not have jurisdiction to review the judgment and the appeal
must be dismissed. See, e.g., Mtge. Electronic Registrations Sys. v. Mullins, 161 Ohio App.3d
12, 2005-Ohio-2303, 829 N.E.2d 326, at ¶ 17. In the event that the parties involved with the
appeal do not raise a jurisdictional issue, then the appellate court must raise it sua sponte. Chef
Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64, syllabus;
Whitaker-Merrell v. Geupel Co. (1972), 29 Ohio St.2d 184, 186, 58 O.O.2d 399, 280 N.E.2d
922.
{¶ 10} “[T]he primary function of a final order or judgment is the termination of a case or
controversy that the parties have submitted to the trial court for resolution.” Harkai v. Scherba
Industries, Inc. (2000), 136 Ohio App.3d 211, 215, 736 N.E.2d 101; Burns v. Morgan, 165 Ohio
App.3d 694, 2006-Ohio-1213, 847 N.E.2d 1288, ¶8. “One fundamental principle in the
interpretation of judgments is that, to terminate the matter, the order must contain a statement of
the relief that is being afforded the parties.” Harkai at 215, 736 N.E.2d 101; Burns at ¶8; see, JACKSON, 10CA2 5
also, White v. White, Gallia App. No. 01CA12, 2002-Ohio-6304, at ¶15; Yahraus v. Circleville
(Dec. 15, 2000), Pickaway App. No. 00CA04. Thus, a purported judgment that does not specify
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[Cite as Downard v. Gilliland, 2011-Ohio-1783.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT JACKSON COUNTY
SHERI DOWNARD, :
Plaintiff-Appellee, : Case No. 10CA2
vs. :
DANNY GILLILAND, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Marie Moraleja Hoover and R. Tracy Hoover, 621 7th Street, Portsmouth, Ohio 45662
COUNSEL FOR APPELLEE: William S. Cole, 227 East Main Street, Jackson, Ohio 45640 _________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 3-30-11
ABELE, J.
{¶ 1} This is an appeal from a Jackson County Common Pleas Court “judgment” that
(1) ordered Danny Gilliland, defendant below and appellant herein, to convey a one-half interest
in certain real estate to Sheri Downard, plaintiff below and appellee herein; and (2) ordered
appellant to pay appellee the amount of money she contributed towards the purchase of a vehicle.
{¶ 2} Appellant raises the following assignments of error for review: JACKSON, 10CA2 2
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING THAT THE REAL PROPERTY THAT WAS OWNED BY DEED BY THE APPELLANT WAS BEING HELD BY APPELLANT IN CONSTRUCTIVE TRUST FOR THE BENEFIT OF APPELLEE; AND SAID DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THAT THERE WAS NO EVIDENCE OF FRAUD, WRONGDOING, DURESS, ETC.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING THAT THE VEHICLE WAS PURCHASED WITH JOINT FUNDS AND THAT APPELLANT PAY TO THE APPELLEE THE SUM CONTRIBUTED BY APPELLEE WHEN NO EVIDENCE WAS INTRODUCED REGARDING ANY ACTUAL AMOUNTS CONTRIBUTED BY APPELLEE.”
{¶ 3} Appellant and appellee lived together, but never married. During their
cohabitation, the parties purchased property that is the subject of the instant dispute. The first
property involves real estate purchased from appellee’s aunt and uncle. The deed contains both
appellee’s and appellant’s names, but shortly after the parties acquired the property, appellee
quit-claimed her one-half interest to appellant. The second dispute involves a vehicle that the
parties acquired for appellee’s son.
{¶ 4} After the parties’ relationship soured, disputes arose as to the division of property.
Thus, on September 5, 2008, appellee filed a complaint and alleged that she and appellant
acquired the real estate “as joint owners with the right of survivorship, and jointly paid and
contributed equally to the purchase price of Eight Thousand Dollars ($8000.00).” Appellee
averred that appellant persuaded her “to transfer her interest in the premises to him in trust so
that he could arrange financing for construction in his name only.” Appellee alleged that (1) JACKSON, 10CA2 3
appellant fraudulently misrepresented his intentions regarding the transfer of her real estate
interest and that he has been unjustly enriched; (2) appellant holds the property under a
constructive trust; and (3) she and appellant purchased the vehicle for her son with joint funds
and that each owns a one-half interest.
{¶ 5} Appellant filed an answer through counsel. On August 5, 2009, the trial court
permitted counsel to withdraw because appellant discharged his counsel. Appellant did not
retain new counsel.
{¶ 6} On December 30, 2009, the court conducted a bench trial. Appellee testified that
in June 2002, she and appellant purchased real estate from her aunt and uncle. She stated that
she later executed a quit-claim deed that assigned her interest to appellant for no consideration,
but did not intend to relinquish her right to the real estate. Rather, appellee claimed that
appellant advised her that if they put the deed in his name only “the property taxes would be
cheaper.” Appellee stated that she and her son resided on the property with appellant for
approximately three years.
{¶ 7} Appellee further testified that in June 2006, she and appellant used joint funds to
purchase a vehicle. Appellee testified that she believes that she owns a one-half interest in
vehicle. She stated that the parties placed the title in appellant’s name to obtain a lower
insurance rate.
{¶ 8} On February 9, 2010, the trial court issued a “Decision and Order” that
summarized the procedural history of the case and the evidence appellee presented at trial:
“Upon review of the evidence, the Court finds that [appellee] has established that [appellant] holds title to the real estate in a constructive trust for the benefit of both parties and that both parties own a one-half un-divided interest JACKSON, 10CA2 4
in the real estate. As to the motor vehicle the Court finds that the vehicle was purchased with joint funds of the parties for the benefit of [appellee’s] son. It is hereby ordered that [appellant] convey to [appellee] his deed for the one-half un-divided interest in the real property. Said interest shall be subject to the mortgage currently on the real property. It is further ordered that [appellant] pay to [appellee] the sum contributed by [appellee] for the purchase of the pick-up truck. The Court further orders that [appellant] pay the costs herein.”
This appeal followed.
{¶ 9} Initially, we must address a threshold issue. Ohio appellate courts have
jurisdiction to review the final orders of inferior courts within their district. Section 3(B)(2),
Article IV, Ohio Constitution; R.C. 2501.02. A final, appealable order is one that affects a
substantial right and determines the action. R.C. 2505.02(B)(1). If a judgment is not final and
appealable, an appellate court does not have jurisdiction to review the judgment and the appeal
must be dismissed. See, e.g., Mtge. Electronic Registrations Sys. v. Mullins, 161 Ohio App.3d
12, 2005-Ohio-2303, 829 N.E.2d 326, at ¶ 17. In the event that the parties involved with the
appeal do not raise a jurisdictional issue, then the appellate court must raise it sua sponte. Chef
Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64, syllabus;
Whitaker-Merrell v. Geupel Co. (1972), 29 Ohio St.2d 184, 186, 58 O.O.2d 399, 280 N.E.2d
922.
{¶ 10} “[T]he primary function of a final order or judgment is the termination of a case or
controversy that the parties have submitted to the trial court for resolution.” Harkai v. Scherba
Industries, Inc. (2000), 136 Ohio App.3d 211, 215, 736 N.E.2d 101; Burns v. Morgan, 165 Ohio
App.3d 694, 2006-Ohio-1213, 847 N.E.2d 1288, ¶8. “One fundamental principle in the
interpretation of judgments is that, to terminate the matter, the order must contain a statement of
the relief that is being afforded the parties.” Harkai at 215, 736 N.E.2d 101; Burns at ¶8; see, JACKSON, 10CA2 5
also, White v. White, Gallia App. No. 01CA12, 2002-Ohio-6304, at ¶15; Yahraus v. Circleville
(Dec. 15, 2000), Pickaway App. No. 00CA04. Thus, a purported judgment that does not specify
the relief granted does not terminate the action and does not constitute a final appealable order.
See Harkai, 136 Ohio App.3d at 221; Wellborn v. K-Beck Furn. Mart, Inc. (1977), 54 Ohio
App.2d 65, 66, 375 N.E.2d 61; King v. Kelly, Lawrence App. No. 01CA33, 2002-Ohio-4647, at
¶12.
{¶ 11} A trial court, however, need not issue an “encyclopedic” judgment entry, but the
judgment entry must contain clear language to provide basic notice of rights, duties, and
obligations. Lavelle v. Cox (Mar. 15, 1991), Trumbull App. No. 90-T-4396 (Ford, J.,
concurring). A judgment entry must be worded in such a way that the parties do not need to
refer to any other document to determine how the judgment affects their rights. As the Harkai
court explained:
“‘[T]he content of the judgment must be definite enough to be susceptible to further enforcement and provide sufficient information to enable the parties to understand the outcome of the case. If the judgment fails to speak to an area which was disputed, uses ambiguous or confusing language, or is otherwise indefinite, the parties and subsequent courts will be unable to determine how the parties’ rights and obligations were fixed by the trial court.’”
Id. at 216, quoting Walker v. Walker (Aug. 5, 1987), Summit App. No. 12978. Moreover, a
“judgment” must be distinguished from a “decision.” See Sup.R. 7(A); Civ.R. 58(A); William
Cherry Trust v. Hofmann (1985), 22 Ohio App.3d 100, 104, 22 OBR 288, 292, 489 N.E.2d 832,
835. Indeed, pursuant to Civ.R. 54(A), a judgment “shall not contain a recital of pleadings, the
magistrate’s decision in a referred matter, or the record of prior proceedings.” These matters are
properly placed in the “decision.” A decision announces what the judgment will be. The JACKSON, 10CA2 6
judgment entry unequivocally orders the relief. See St. Vincent Charity Hosp. v. Mintz (1987),
33 Ohio St.3d 121, 123, 515 N.E.2d 917, 919.
{¶ 12} In the case sub judice, the trial court’s “Decision and Order” does not contain a
clear pronouncement of the court’s judgment such that the parties may understand all of their
rights and obligations. Here, the court ordered appellant to transfer a one-half interest in the real
estate to appellee, but the court did not address appellee’s claim for monetary damages and did
not assign a value to appellee’s one-half interest in the real estate. Further, the court’s entry
does not specify the amount of money appellant should pay to appellee to compensate her for the
vehicle that the parties jointly purchased. Thus, although the court announced a decision, it did
not set forth a judgment. Moreover, it appears that the trial court may not have issued a final
appealable order, or, in other words, a judgment that explicitly disposed of all claims for relief.
"A final order * * * is one disposing of the whole case or some separate and distinct branch
thereof." Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio St.2d 303, 306. "An order which
adjudicates one or more but fewer than all the claims presented in an action also must meet the
requirements of Civ.R. 54(B) in order to be final and appealable." Oakley v. Citizens Bank of
Logan, Athens App. No. 04CA25, 2004-Ohio-6824, at ¶9, citing Noble v. Colwell (1989), 44
Ohio St.3d 92, syllabus. Civ.R. 54(B) provides that "[w]hen more than one claim for relief is
presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and
whether arising out of the same or separate transactions, or when multiple parties are involved,
the court may enter final judgment as to one or more but fewer than all of the claims or parties
only upon an express determination that there is no just reason for delay.
{¶ 13} Furthermore, it appears that the trial court may have determined liability, but not JACKSON, 10CA2 7
the precise amount of monetary damages. "Judgments that determine liability, but defer the
issue of damages for later adjudication, are neither final nor appealable because damages are part
of a claim rather than a separate claim in and of themselves." Evans v. Rock Hill Local School
Dist. Bd. Edn., Lawrence App. No. 04CA39, 2005-Ohio-5318, at ¶15. Additionally, a judgment
that only partially resolves a claim is not a final appealable order even if the trial court has
included a finding of no just cause for delay under Civ.R. 54(B). Id. at ¶16-17.
{¶ 14} Accordingly, based upon the foregoing reasons, we hereby dismiss this appeal.
APPEAL DISMISSED.
JUDGMENT ENTRY
It is ordered that the appeal be dismissed and that appellee recover of appellant costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Jackson County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, P.J. & McFarland, J.: Concur in Judgment & Opinion
For the Court JACKSON, 10CA2 8
BY: Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.