Johnson v. Michael

2018 Ohio 234

• Court: Ohio Court of Appeals
• Decided: January 22, 2018
• Docket: 2017CA00205
• Status: Published

Opinion

[Cite as Johnson v. Michael, 2018-Ohio-234.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

DUANE JOHNSON : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellant : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : KATHRYN MICHAEL : Case No. 2017CA00205 : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2017CV01799

JUDGMENT: Dismissed

DATE OF JUDGMENT: January 22, 2018

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

DUANE JOHNSON, Pro Se MICHAEL J. DEFIBAUGH 825 Diagonal Road JOHN CHRISTOPHER REECE Akron, OH 44320 161 South High Street Suite 202 Akron, OH 44308 Stark County, Case No. 2017CA00205 2

Wise, Earle, J.

{¶ 1} Plaintiff-Appellant, Duane Johnson, appeals the October 26, 2017 judgment

entry of the Court of Common Pleas of Stark County, Ohio, transferring venue to the Court

of Common Pleas of Summit County, Ohio. Defendant-Appellee is Kathryn Michael.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On September 1, 2017, appellant filed a pro se complaint against appellee

in the Court of Common Pleas of Stark County, Ohio. Appellant alleged bare claims for

trespass and dereliction of duty, without including any facts regarding the nature of the

allegations.

{¶ 3} On October 5, 2017, appellee filed a motion to transfer venue to Summit

County, Ohio. Appellee explained appellant's claims for relief centered on his arrest by

the Akron Police Department for making false alarms and his subsequent prosecution

and conviction in the Akron Municipal Court (Case No. 14CRB4243). Appellee was the

presiding judge in his case.

{¶ 4} On October 12, 2017, appellant filed a response, objecting to the motion for

change of venue, but not disputing the explanation given by appellee. By judgment entry

filed October 26, 2017, the trial court granted the motion and transferred the case to

Summit County.

{¶ 5} Appellant filed an appeal. Appellee filed a motion to dismiss for lack of a

final appealable order. This matter is now before this court for consideration. As appellant

failed to list any assignment of error pursuant to App.R. 16(A)(3), we glean the following

assignment from the state of the record: Stark County, Case No. 2017CA00205 3

I

{¶ 6} THE TRIAL COURT ERRED IN GRANTING THE MOTION TO TRANSFER

VENUE TO SUMMIT COUNTY.

{¶ 7} Preliminarily, we note this case is before this court on the accelerated

calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment

on appeal, provides in pertinent part: "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."

{¶ 8} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th

Dist.1983).

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

rules.

{¶ 10} Appellant claims the trial court erred in granting the motion to transfer venue

to Summit County. Appellee argues the appeal should be dismissed because an order

transferring a case for lack of venue is not a final appealable order. We agree with

appellee.

{¶ 11} To be final and appealable, an order must comply with R.C. 2505.02.

Subsection (B) provides the following in pertinent part: Stark County, Case No. 2017CA00205 4

(B) An order is a final order that may be reviewed, affirmed,

modified, or reversed, with or without retrial, when it is one of the following:

(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

(2) An order that affects a substantial right made in a special

proceeding or upon a summary application in an action after judgment;

(3) An order that vacates or sets aside a judgment or grants a new

trial;

(4) An order that grants or denies a provisional remedy and to which

both of the following apply:

(a) The order in effect determines the action with respect to the

provisional remedy and prevents a judgment in the action in favor of the

appealing party with respect to the provisional remedy.

(b) The appealing party would not be afforded a meaningful or

effective remedy by an appeal following final judgment as to all

proceedings, issues, claims, and parties in the action.

{¶ 12} As explained by this court in Mansfield Family Restaurant v. CGS

Worldwide, Inc. 5th Dist. Richland No. 00-CA-3, 2000 WL 1886226, *2 (Dec. 28, 2000):

The only possible applicable paragraph is paragraph 4, regarding

provisional remedies. " 'Provisional remedy' means a proceeding ancillary

to an action, including, but not limited to, a proceeding for a preliminary Stark County, Case No. 2017CA00205 5

injunction, attachment, discovery of privileged matter, or suppression of

evidence." R.C. 2505.02(A)(3). The statutory definition does not

specifically refer to proceedings to transfer venue nor are any of the listed

proceedings akin to a transfer of venue. See Duryee [v. Rogers, 8th Dist.

Cuyahoga No. 74963, 1999 WL 1204875 (Dec. 16, 1999)], supra. The

basic purpose of R.C. 2505.02(A)(3) in categorizing certain types of

preliminary decisions of a trial court as final, appealable orders is the

protection of one party against irreparable harm by another party during the

pendency of the litigation. Id. We find that a decision by a trial court to deny

a request for change of venue does not involve the same degree of risk of

irreparable harm to a party as the decisions made in the types of actions

listed under 2505.02(A)(3). The types of provisional remedies listed under

2505.02(A)(3) include decisions that, made preliminarily, could decide all or

part of an action or make an ultimate decision on the merits meaningless or

cause other irreparable harm. For instance, a preliminary injunction could

be issued against a high school football player preventing him from playing

football his senior year based on recruiting violations. The trial court could

grant the attachment of property for which the owner has a ready buyer.

Discovery of privileged material could force a person to divulge highly

personal and sensitive information. If evidence critical to the prosecution of

a criminal case is suppressed, the state could lose any meaningful chance

at successful prosecution of a criminal. The decision to deny a change of

venue does not result in any of the types of irreparable harm just listed. Stark County, Case No. 2017CA00205 6

There is an adequate legal remedy from a decision denying a change of

venue, after final judgment. In other words, it may be expensive to get the

cat back in the bag, if a trial court errs when it denies a change of venue,

but it can be done. Whereas, when the types of decisions listed in

2505.02(A)(3) are made, the cat is let out of the bag and can never be put

back in. Therefore, denial of a request to change venue is not a final,

appealable order.

{¶ 13} The case sub judice involves not the denial, but the granting of a change

of venue. As noted by this court in Jackson v. Friedlander, 5th Dist. Stark No.

2016CA00053, 2016-Ohio-7503, ¶ 9:

This Court and the Ohio Supreme Court have previously held that

the denial or granting of a motion to change venue is not a final, appealable

order. Gray v. Lloyd Ward, P.C., 5th Dist. Fairfield No. 13 CA 42, 2014-

Ohio-190; State of Ohio ex rel. Edwards v. Tompkins, 5th Dist. Muskingum

No. CT2010-0035, 2011-Ohio-32; State ex rel. Lyons v. Zaleski, 75 Ohio

St.3d 623, 665 N.E.2d 212 (1996).

{¶ 14} Based upon the foregoing, we find the judgment appealed from is not a final

appealable order. Appellee's motion to dismiss is granted. Stark County, Case No. 2017CA00205 7

{¶ 15} This appeal is dismissed.

By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.

EEW/db 18