[Cite as Figetakis v. My Pillow, Inc., 2020-Ohio-3949.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
MARK FIGETAKIS C.A. No. 29136
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE MY PILLOW, INC. and AKRON MUNICIPAL COURT MIKE LINDELL (CEO) COUNTY OF SUMMIT, OHIO CASE No. 18 CVI 00797 Appellees
DECISION AND JOURNAL ENTRY
Dated: August 5, 2020
SCHAFER, Judge.
{¶1} Defendant-Appellant, Mark Figetakis appeals the decision of the Akron Municipal
Court adopting the magistrate’s decision. For the reasons that follow, this Court dismisses the
attempted appeal for lack of jurisdiction.
I.
{¶2} In January 2018, Mr. Figetakis filed a complaint in the Small Claims Division of
the Akron Municipal Court naming two defendants: Mike Lindell C.E.O., and My Pillow, Inc. In
his complaint, Mr. Figetakis sought $6,000 in damages for an alleged failure to honor a guarantee
and alleged false advertisement.
{¶3} The matter proceeded to a hearing before a magistrate in April 2018. Mr. Figetakis
appeared at the hearing without counsel. A representative of My Pillow, Inc. appeared, without
counsel, on behalf of the company, but Mike Lindell C.E.O. did not appear at the hearing. The
parties presented testimony and submitted evidence during the hearing. 2
{¶4} The magistrate issued a decision on June 4, 2018, with findings of fact and
conclusions of law. The magistrate concluded that Mr. Figetakis entered into an agreement with
My Pillow, Inc. “to purchase a pillow and both parties performed their duties under the agreement.”
The magistrate further concluded that My Pillow, Inc. honored its warranty when it sent Mr.
Figetakis a replacement pillow and then offered to give him another replacement pillow. Finally,
the magistrate concluded Mr. Figetakis was not entitled to a full refund for the pillows.
Consequently, the magistrate recommended that the trial court enter judgment against Mr.
Figetakis and in favor of the defendants.
{¶5} Mr. Figetakis filed objections asserting that “[t]here are many errors of law and
fact” in the magistrate’s decision. On July 13, 2018, the trial court issued a “ruling on the
objection,” overruling Mr. Figetakis’s objections and adopting the magistrate’s decision.
Thereafter, Mr. Figetakis moved the trial court to reconsider its decision. However, the trial court
overruled his motion, stating that final orders are not subject to reconsideration, that a motion filed
after final judgment is a nullity, and that the trial court’s “July 1[3], 2018 [o]rder is a final
judgment” entry.
{¶6} Mr. Figetakis timely appealed the trial court’s decision, presenting three
assignments of error for our review. Recognizing that the decision being appealed adopted the
magistrate’s decision, this Court ordered the parties to file responses addressing the issue of
whether the trial court had independently entered judgment. Mr. Figetakis submitted a perplexing
response vaguely discussing issues of finality, but not directly addressing whether the trial court
independently entered judgment on the magistrate’s decision. The response references the trial
court’s denial of the motion to reconsider that Mr. Figetakis filed subsequent to the trial court’s
ruling on his objections and adopting the magistrate’s decision. In his response, Mr. Figetakis 3
requested that this Court not dismiss the appeal. My Pillow, Inc. and Mike Lindell C.E.O did not
file a response. This Court provisionally determined that the matter could proceed, but indicated
that the issue of jurisdiction may be revisited upon review of the record during the final disposition
of the appeal.
II.
Assignment of Error I
The Court of Appeals lacks subject matter jurisdiction over the appeal because the order entered by the trial court did not adjudicate all of the pending claims.
Assignment of Error II
The Akron Municipal Court decision by Judge Ca[b]le dated July 13, 2018, in case 18CVI 00797 ruling on objections fails to comply with Ohio Supreme Court Case: Chef Italiano Corporation v. Kent State University ET.AL. Citation 44 Ohio St 3d86 Ohio 1989:541 NE 2d64. This case is the determination as to a final appealable order and jurisdiction, a final appealable order must comply with both Civ.R. 54(B) and express determination is made that “There is no just reason for delay.” Also R.C. 2505.02 must be met and is included. [Sic.]
Assignment of Error III
Furthermore, in Case No. 29136, Magistrate’s Appeal Court Walsh order dated August, 10, 2018, stated “upon review of the initial filing this court requires additional information to determine its jurisdiction to consider this appeal. Specifically, it is unclear whether the trial court has independently entered judgment on the Magistrate’s decision because the order appealed only ruled on objections. When a case is heard by a Magistrate, the trial court must still enter its judgment on all claims before it. Matters initially heard by a magistrate are not final until a judge separately enters his or her judgment setting forth the outcome of the dispute and the remedy provided. [Sic.]
{¶7} To the extent Mr. Figetakis raises cognizable arguments in his three assignments of
error, the focus of those arguments does not relate to the merits of the trial court’s decision. In his
first assignment of error, Mr. Figetakis argues that this Court lacks jurisdiction over the appeal
because the magistrate’s June 4, 2018 order failed to adjudicate all claims and contends that the 4
magistrate failed to include Civ.R. 54(B) language. Consequently, he argues, the trial court’s
ruling on his objections to the magistrate’s decision were moot, rendering the trial court’s decision
a non-final order. In his second assignment of error, Mr. Figetakis argues the trial court’s decision
is not final or appealable because it failed to comply with Civ.R. 54(B) and R.C. 2505.02, and
because he alleges there are claims and unspecified issues that have not been decided. It is difficult
to decipher any argument in the third assignment of error, but Mr. Figetakis appears to challenge
the magistrate’s order—issued in the present appeal—questioning this Court’s jurisdiction to
consider this appeal.
{¶8} The collective focus of Mr. Figetakis’s arguments is on the finality of the trial
court’s order and this Court’s jurisdiction to hear his appeal. After reviewing the record this Court
agrees that the decision appealed is not a final appealable order, but for reasons other than those
asserted in Mr. Figetakis’s brief.
{¶9} “[O]nly a judge, not a magistrate, may terminate a claim or action by entering
judgment.” Harkai v. Scherba Industries, Inc., 136 Ohio App.3d 211, 218 (9th Dist.2000). “A
magistrate’s decision is not effective unless adopted by the court.” Civ.R. 53(D)(4)(a). “Whether
or not objections are timely filed, a court may adopt or reject a magistrate’s decision in whole or
in part, with or without modification.” Civ.R. 53(D)(4)(b). “If one or more objections to a
magistrate’s decision are timely filed, the court shall rule on those objections. In ruling on
objections, the court shall undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and appropriately applied the law.”
Civ.R. 53(D)(4)(d). “A court that adopts, rejects, or modifies a magistrate’s decision shall also
enter a judgment * * *.” Civ.R. 53(D)(4)(e). 5
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[Cite as Figetakis v. My Pillow, Inc., 2020-Ohio-3949.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
MARK FIGETAKIS C.A. No. 29136
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE MY PILLOW, INC. and AKRON MUNICIPAL COURT MIKE LINDELL (CEO) COUNTY OF SUMMIT, OHIO CASE No. 18 CVI 00797 Appellees
DECISION AND JOURNAL ENTRY
Dated: August 5, 2020
SCHAFER, Judge.
{¶1} Defendant-Appellant, Mark Figetakis appeals the decision of the Akron Municipal
Court adopting the magistrate’s decision. For the reasons that follow, this Court dismisses the
attempted appeal for lack of jurisdiction.
I.
{¶2} In January 2018, Mr. Figetakis filed a complaint in the Small Claims Division of
the Akron Municipal Court naming two defendants: Mike Lindell C.E.O., and My Pillow, Inc. In
his complaint, Mr. Figetakis sought $6,000 in damages for an alleged failure to honor a guarantee
and alleged false advertisement.
{¶3} The matter proceeded to a hearing before a magistrate in April 2018. Mr. Figetakis
appeared at the hearing without counsel. A representative of My Pillow, Inc. appeared, without
counsel, on behalf of the company, but Mike Lindell C.E.O. did not appear at the hearing. The
parties presented testimony and submitted evidence during the hearing. 2
{¶4} The magistrate issued a decision on June 4, 2018, with findings of fact and
conclusions of law. The magistrate concluded that Mr. Figetakis entered into an agreement with
My Pillow, Inc. “to purchase a pillow and both parties performed their duties under the agreement.”
The magistrate further concluded that My Pillow, Inc. honored its warranty when it sent Mr.
Figetakis a replacement pillow and then offered to give him another replacement pillow. Finally,
the magistrate concluded Mr. Figetakis was not entitled to a full refund for the pillows.
Consequently, the magistrate recommended that the trial court enter judgment against Mr.
Figetakis and in favor of the defendants.
{¶5} Mr. Figetakis filed objections asserting that “[t]here are many errors of law and
fact” in the magistrate’s decision. On July 13, 2018, the trial court issued a “ruling on the
objection,” overruling Mr. Figetakis’s objections and adopting the magistrate’s decision.
Thereafter, Mr. Figetakis moved the trial court to reconsider its decision. However, the trial court
overruled his motion, stating that final orders are not subject to reconsideration, that a motion filed
after final judgment is a nullity, and that the trial court’s “July 1[3], 2018 [o]rder is a final
judgment” entry.
{¶6} Mr. Figetakis timely appealed the trial court’s decision, presenting three
assignments of error for our review. Recognizing that the decision being appealed adopted the
magistrate’s decision, this Court ordered the parties to file responses addressing the issue of
whether the trial court had independently entered judgment. Mr. Figetakis submitted a perplexing
response vaguely discussing issues of finality, but not directly addressing whether the trial court
independently entered judgment on the magistrate’s decision. The response references the trial
court’s denial of the motion to reconsider that Mr. Figetakis filed subsequent to the trial court’s
ruling on his objections and adopting the magistrate’s decision. In his response, Mr. Figetakis 3
requested that this Court not dismiss the appeal. My Pillow, Inc. and Mike Lindell C.E.O did not
file a response. This Court provisionally determined that the matter could proceed, but indicated
that the issue of jurisdiction may be revisited upon review of the record during the final disposition
of the appeal.
II.
Assignment of Error I
The Court of Appeals lacks subject matter jurisdiction over the appeal because the order entered by the trial court did not adjudicate all of the pending claims.
Assignment of Error II
The Akron Municipal Court decision by Judge Ca[b]le dated July 13, 2018, in case 18CVI 00797 ruling on objections fails to comply with Ohio Supreme Court Case: Chef Italiano Corporation v. Kent State University ET.AL. Citation 44 Ohio St 3d86 Ohio 1989:541 NE 2d64. This case is the determination as to a final appealable order and jurisdiction, a final appealable order must comply with both Civ.R. 54(B) and express determination is made that “There is no just reason for delay.” Also R.C. 2505.02 must be met and is included. [Sic.]
Assignment of Error III
Furthermore, in Case No. 29136, Magistrate’s Appeal Court Walsh order dated August, 10, 2018, stated “upon review of the initial filing this court requires additional information to determine its jurisdiction to consider this appeal. Specifically, it is unclear whether the trial court has independently entered judgment on the Magistrate’s decision because the order appealed only ruled on objections. When a case is heard by a Magistrate, the trial court must still enter its judgment on all claims before it. Matters initially heard by a magistrate are not final until a judge separately enters his or her judgment setting forth the outcome of the dispute and the remedy provided. [Sic.]
{¶7} To the extent Mr. Figetakis raises cognizable arguments in his three assignments of
error, the focus of those arguments does not relate to the merits of the trial court’s decision. In his
first assignment of error, Mr. Figetakis argues that this Court lacks jurisdiction over the appeal
because the magistrate’s June 4, 2018 order failed to adjudicate all claims and contends that the 4
magistrate failed to include Civ.R. 54(B) language. Consequently, he argues, the trial court’s
ruling on his objections to the magistrate’s decision were moot, rendering the trial court’s decision
a non-final order. In his second assignment of error, Mr. Figetakis argues the trial court’s decision
is not final or appealable because it failed to comply with Civ.R. 54(B) and R.C. 2505.02, and
because he alleges there are claims and unspecified issues that have not been decided. It is difficult
to decipher any argument in the third assignment of error, but Mr. Figetakis appears to challenge
the magistrate’s order—issued in the present appeal—questioning this Court’s jurisdiction to
consider this appeal.
{¶8} The collective focus of Mr. Figetakis’s arguments is on the finality of the trial
court’s order and this Court’s jurisdiction to hear his appeal. After reviewing the record this Court
agrees that the decision appealed is not a final appealable order, but for reasons other than those
asserted in Mr. Figetakis’s brief.
{¶9} “[O]nly a judge, not a magistrate, may terminate a claim or action by entering
judgment.” Harkai v. Scherba Industries, Inc., 136 Ohio App.3d 211, 218 (9th Dist.2000). “A
magistrate’s decision is not effective unless adopted by the court.” Civ.R. 53(D)(4)(a). “Whether
or not objections are timely filed, a court may adopt or reject a magistrate’s decision in whole or
in part, with or without modification.” Civ.R. 53(D)(4)(b). “If one or more objections to a
magistrate’s decision are timely filed, the court shall rule on those objections. In ruling on
objections, the court shall undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and appropriately applied the law.”
Civ.R. 53(D)(4)(d). “A court that adopts, rejects, or modifies a magistrate’s decision shall also
enter a judgment * * *.” Civ.R. 53(D)(4)(e). 5
{¶10} “A decision announces what the judgment will be[,]” while the actual entry of
judgment “unequivocally orders the relief.” Harkai at 216, citing St. Vincent Charity Hosp. v.
Mintz, 33 Ohio St.3d 121, 123 (1987). Even if a “judge entirely agrees with the decision of the
magistrate, the judge must still separately enter his or her own judgment setting forth the outcome
of the dispute and the remedy provided.” Harkai at 218. “[A] trial court order stating only that it
is adopting a magistrate’s decision does not disclose how the trial court is resolving the issues
submitted to it, and, therefore, is not final.” (Emphasis sic.) Id. at 221. Thus, for a trial court’s
ruling on a magistrate’s decision to be final and appealable, the trial court must independently
enter judgment setting forth the outcome of the dispute, indicating the remedy provided, and fully
determining the action. Thompson v. Thompson, 9th Dist. Medina No. 07CA0023-M, 2009-Ohio-
179, ¶ 9-10.
{¶11} Where, as is the case here, the trial court states that the magistrate’s decision is
adopted, but “the court’s own judgment [i]s not independently set forth[,]” the order is not final.
Bergin v. Berezansky, 9th Dist. Summit No. 21451, 2003-Ohio-4266, ¶ 6-7. The trial court’s ruling
on the objection to the magistrate’s decision reflects that the court considered the objections,
reviewed the transcripts of the hearing before the magistrate, and undertook a review of the
magistrate’s decision. In its ruling, the trial court noted that the magistrate concluded Mr. Figetakis
“was not entitled to a full refund” and that the magistrate recommended “that [Mr. Figetakis]’s
complaint be denied.” However, in overruling Mr. Figetakis’s objections and adopting the
magistrate’s decision, the trial court did not independently act upon the magistrate’s
recommendation by entering judgment against Mr. Figetakis and in favor of defendants My Pillow,
Inc. and Mike Lindell, C.E.O. 6
{¶12} The July 13, 2018 ruling Mr. Figetakis has attempted to appeal fails to
independently set forth the court’s judgment. While “[t]he trial court most likely intended that this
entry constitute the ‘judgment’ in the case[;]” “[i]t is the substance of the entry, however, that must
control.” Harkai at 220. Although the trial court stated it was adopting the magistrate’s decision,
the trial court did not separately enter a judgment setting forth the outcome of the dispute in a
manner that would make clear the relief afforded to the parties.
III.
{¶13} This Court lacks jurisdiction to consider this appeal because Mr. Figetakis has not
appealed from a final appealable order.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER FOR THE COURT 7
CARR, P. J. HENSAL, J. CONCUR.
APPEARANCES:
MARK FIGETAKIS, pro se, Appellant.
RONALD D. HOLMAN, II, and MICHAEL J. ZBIEGIENM, JR., Attorneys at Law, for Appellees.