[Cite as Semple v. 2201, Inc., 2013-Ohio-4311.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
NEIL SEMPLE, et al., : MEMORANDUM OPINION
Plaintiffs-Appellees, : CASE NO. 2013-P-0023 - vs - :
2201, INC., et al., :
Defendants-Appellants. :
Civil Appeal from the Portage County Court of Common Pleas. Case No. 2011 CV 00922.
Judgment: Appeal dismissed.
Ellen Marie McCarthy and Brenda M. Johnson, Nurenberg, Paris, Heller & McCarthy Co., LPA, 1370 Ontario Street, Suite 100, Cleveland, OH 44113-1708 (For Plaintiffs- Appellees).
Joshua D. Nolan, Buckingham, Doolittle & Burroughs, L.L.P., 3800 Embassy Parkway, Suite 300, Akron, OH 44333-8332; E. John Brzytwa and James L. McCrystal, Jr., Brzytwa, Quick & McCrystal, L.L.C., 1660 W. 2nd Street, Suite 900, Cleveland, OH 44113 (For Defendants-Appellants).
TIMOTHY P. CANNON, P.J.
{¶1} This cause came to be heard on appellees’ motion to dismiss the within
appeal for lack of a final, appealable order; appellants’ brief in opposition; and appellees’
reply brief. Also before the court are appellants’ motions to consolidate and to strike.
{¶2} Section 3(B)(2), Article IV of the Ohio Constitution provides that this court
has such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of inferior courts within our district. The laws enacted by the
general assembly pertinent to this appeal are R.C. 2505.02 and R.C. 2715.46. If neither
of these sections establishes that the order appealed from is final, this court is without
jurisdiction to hear the within appeal.
{¶3} The order appealed from, as indicated by appellants, is an order issued by
the trial court, dated March 21, 2013. That order is very limited in scope. It merely
determined who would hold funds that were previously made the subject of a
prejudgment attachment by the magistrate’s decision, dated January 29, 2013. At the
time of the court’s March 21, 2013 order, objections to that magistrate’s decision were
pending. Following a hearing, the trial court overruled the objections and adopted the
magistrate’s decision in an order dated July 25, 2013. That order is now the subject of
a second appeal, 11th Dist. No. 2013-P-0068, which is also pending in this court.
Appellants have filed a motion to consolidate the within case with this new appeal and a
motion to strike information contained in appellees’ reply brief concerning their motion to
dismiss. However, if this court is without jurisdiction to hear the within appeal, it must
be dismissed, rendering appellants’ motion to consolidate and motion to strike moot.
{¶4} In addition to the trial court’s March 21, 2013 order, appellants contend
they are appealing the magistrate’s decisions of March 8, 2012, and January 29, 2013;
however, those decisions are the subject of objections and the trial court’s order of July
25, 2013, and thus are not final and appealable.
{¶5} First, appellants argue that the March 21, 2013 order is final and
appealable because it affects a substantial right and was made in a special proceeding.
R.C. 2505.02(B) provides:
2 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:
***
(2) An order that affects a substantial right made in a special proceeding * * *.
{¶6} Further, R.C. 2505.02(A)(1) provides: “‘Substantial right’ means a right
that the United States Constitution, the Ohio Constitution, a statute, the common law, or
a rule of procedure entitles a person to enforce or protect.”
{¶7} In addition, R.C. 2505.02(A)(2) provides: “‘Special proceeding’ means an
action or proceeding that is specially created by statute and that prior to 1853 was not
denoted as an action at law or a suit in equity.”
{¶8} Thus, the issue presented is whether the trial court’s March 21, 2013 order
was final and appealable pursuant to R.C. 2505.02(B)(2), i.e., an order that affects a
substantial right made in a special proceeding. Under this definition, this court must first
determine whether the order was entered in a special proceeding. It has been held that
an “attachment is a special proceeding ancillary to the action, but so independent of it
that an order in the attachment proceeding may, when final, be the subject of [an
appeal] during the pendency of the action.” Hamilton v. Temple, 60 Ohio App. 94, 97
(1st Dist.1938). Thus, the trial court’s March 21, 2013 order was entered in a special
proceeding.
{¶9} However, even if the special-proceeding requirement was satisfied, the
March 21, 2013 order must also affect a substantial right to be a final order. In
determining whether an order affected a substantial right for purposes of R.C.
2505.02(B)(2), the Tenth District in Kelm v. Kelm, 93 Ohio App.3d 686 (10th Dist.1994)
stated, “[a]n order affects a substantial right [in a special proceeding] only if, in the
3 absence of an immediate appeal, it forecloses appropriate relief in the future * * * or
prejudices one of the parties involved.” Id. at 691.
{¶10} In Kelm, the appellate court stated that, because the order appealed
concerned only temporary spousal and child support, any alleged errors in the
underlying proceedings could be remedied without prejudice to the plaintiff when a final
support award was rendered. Id. Likewise here, the trial court’s order was temporary in
nature, and any alleged errors committed by the magistrate in entering his decision
regarding the attachment could be remedied without prejudice to appellants when the
trial court ruled on appellants’ objections to the magistrate’s decision. Thus, the court’s
March 21, 2013 order is not a final order under R.C. 2505.02(B)(2).
{¶11} Further, R.C. 2505.02(A)(3) includes attachment as a “provisional remedy”
for purposes of R.C. 2505.02(B)(4)(a), which provides that an order is a final order when
it grants or denies a provisional remedy and the order determines the action with
respect to the provisional remedy and prevents a judgment in the action in favor of the
appellant with respect to the provisional remedy. However, even if the attachment
proceedings here are considered a provisional remedy, the court’s March 21, 2013
order did not grant or deny the attachment. Nor did the order determine the action with
respect to the attachment and prevent a judgment in favor of appellants with respect to
the attachment. Thus, the March 21, 2013 order would not be a final order under R.C.
2505.02(B)(4)(a).
{¶12} Here, the trial court’s March 21, 2013 order merely established who would
hold the funds that were subject to attachment pending the trial court’s ruling on
appellants’ objections. Clearly, the court was concerned whether the law firm, which
had previously held the funds, improperly withdrew a portion thereof. The court’s order
4 directed that part of the funds, which were already the subject of the magistrate’s
January 29, 2013 decision, were to be held by the clerk of courts, instead of the law
firm, until the trial court resolved appellants’ objections to the magistrate’s decision. The
court’s judgment was therefore intended merely to preserve the status quo pending the
court’s final decision on the attachment. The judgment was thus intended to be
temporary and interlocutory. Consequently, all issues raised in this appeal can be
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[Cite as Semple v. 2201, Inc., 2013-Ohio-4311.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
NEIL SEMPLE, et al., : MEMORANDUM OPINION
Plaintiffs-Appellees, : CASE NO. 2013-P-0023 - vs - :
2201, INC., et al., :
Defendants-Appellants. :
Civil Appeal from the Portage County Court of Common Pleas. Case No. 2011 CV 00922.
Judgment: Appeal dismissed.
Ellen Marie McCarthy and Brenda M. Johnson, Nurenberg, Paris, Heller & McCarthy Co., LPA, 1370 Ontario Street, Suite 100, Cleveland, OH 44113-1708 (For Plaintiffs- Appellees).
Joshua D. Nolan, Buckingham, Doolittle & Burroughs, L.L.P., 3800 Embassy Parkway, Suite 300, Akron, OH 44333-8332; E. John Brzytwa and James L. McCrystal, Jr., Brzytwa, Quick & McCrystal, L.L.C., 1660 W. 2nd Street, Suite 900, Cleveland, OH 44113 (For Defendants-Appellants).
TIMOTHY P. CANNON, P.J.
{¶1} This cause came to be heard on appellees’ motion to dismiss the within
appeal for lack of a final, appealable order; appellants’ brief in opposition; and appellees’
reply brief. Also before the court are appellants’ motions to consolidate and to strike.
{¶2} Section 3(B)(2), Article IV of the Ohio Constitution provides that this court
has such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of inferior courts within our district. The laws enacted by the
general assembly pertinent to this appeal are R.C. 2505.02 and R.C. 2715.46. If neither
of these sections establishes that the order appealed from is final, this court is without
jurisdiction to hear the within appeal.
{¶3} The order appealed from, as indicated by appellants, is an order issued by
the trial court, dated March 21, 2013. That order is very limited in scope. It merely
determined who would hold funds that were previously made the subject of a
prejudgment attachment by the magistrate’s decision, dated January 29, 2013. At the
time of the court’s March 21, 2013 order, objections to that magistrate’s decision were
pending. Following a hearing, the trial court overruled the objections and adopted the
magistrate’s decision in an order dated July 25, 2013. That order is now the subject of
a second appeal, 11th Dist. No. 2013-P-0068, which is also pending in this court.
Appellants have filed a motion to consolidate the within case with this new appeal and a
motion to strike information contained in appellees’ reply brief concerning their motion to
dismiss. However, if this court is without jurisdiction to hear the within appeal, it must
be dismissed, rendering appellants’ motion to consolidate and motion to strike moot.
{¶4} In addition to the trial court’s March 21, 2013 order, appellants contend
they are appealing the magistrate’s decisions of March 8, 2012, and January 29, 2013;
however, those decisions are the subject of objections and the trial court’s order of July
25, 2013, and thus are not final and appealable.
{¶5} First, appellants argue that the March 21, 2013 order is final and
appealable because it affects a substantial right and was made in a special proceeding.
R.C. 2505.02(B) provides:
2 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:
***
(2) An order that affects a substantial right made in a special proceeding * * *.
{¶6} Further, R.C. 2505.02(A)(1) provides: “‘Substantial right’ means a right
that the United States Constitution, the Ohio Constitution, a statute, the common law, or
a rule of procedure entitles a person to enforce or protect.”
{¶7} In addition, R.C. 2505.02(A)(2) provides: “‘Special proceeding’ means an
action or proceeding that is specially created by statute and that prior to 1853 was not
denoted as an action at law or a suit in equity.”
{¶8} Thus, the issue presented is whether the trial court’s March 21, 2013 order
was final and appealable pursuant to R.C. 2505.02(B)(2), i.e., an order that affects a
substantial right made in a special proceeding. Under this definition, this court must first
determine whether the order was entered in a special proceeding. It has been held that
an “attachment is a special proceeding ancillary to the action, but so independent of it
that an order in the attachment proceeding may, when final, be the subject of [an
appeal] during the pendency of the action.” Hamilton v. Temple, 60 Ohio App. 94, 97
(1st Dist.1938). Thus, the trial court’s March 21, 2013 order was entered in a special
proceeding.
{¶9} However, even if the special-proceeding requirement was satisfied, the
March 21, 2013 order must also affect a substantial right to be a final order. In
determining whether an order affected a substantial right for purposes of R.C.
2505.02(B)(2), the Tenth District in Kelm v. Kelm, 93 Ohio App.3d 686 (10th Dist.1994)
stated, “[a]n order affects a substantial right [in a special proceeding] only if, in the
3 absence of an immediate appeal, it forecloses appropriate relief in the future * * * or
prejudices one of the parties involved.” Id. at 691.
{¶10} In Kelm, the appellate court stated that, because the order appealed
concerned only temporary spousal and child support, any alleged errors in the
underlying proceedings could be remedied without prejudice to the plaintiff when a final
support award was rendered. Id. Likewise here, the trial court’s order was temporary in
nature, and any alleged errors committed by the magistrate in entering his decision
regarding the attachment could be remedied without prejudice to appellants when the
trial court ruled on appellants’ objections to the magistrate’s decision. Thus, the court’s
March 21, 2013 order is not a final order under R.C. 2505.02(B)(2).
{¶11} Further, R.C. 2505.02(A)(3) includes attachment as a “provisional remedy”
for purposes of R.C. 2505.02(B)(4)(a), which provides that an order is a final order when
it grants or denies a provisional remedy and the order determines the action with
respect to the provisional remedy and prevents a judgment in the action in favor of the
appellant with respect to the provisional remedy. However, even if the attachment
proceedings here are considered a provisional remedy, the court’s March 21, 2013
order did not grant or deny the attachment. Nor did the order determine the action with
respect to the attachment and prevent a judgment in favor of appellants with respect to
the attachment. Thus, the March 21, 2013 order would not be a final order under R.C.
2505.02(B)(4)(a).
{¶12} Here, the trial court’s March 21, 2013 order merely established who would
hold the funds that were subject to attachment pending the trial court’s ruling on
appellants’ objections. Clearly, the court was concerned whether the law firm, which
had previously held the funds, improperly withdrew a portion thereof. The court’s order
4 directed that part of the funds, which were already the subject of the magistrate’s
January 29, 2013 decision, were to be held by the clerk of courts, instead of the law
firm, until the trial court resolved appellants’ objections to the magistrate’s decision. The
court’s judgment was therefore intended merely to preserve the status quo pending the
court’s final decision on the attachment. The judgment was thus intended to be
temporary and interlocutory. Consequently, all issues raised in this appeal can be
asserted in the subsequent appeal, i.e., 11th Dist. No. 2013-P-0068, without prejudice
to appellants’ rights.
{¶13} In nearly identical circumstances, in John H. Spencer, Inc. v. Baker &
Hostetler, 38 Ohio App.3d 117 (1st Dist.1987), the trial court entered an order directing
that the proceeds of a letter of credit be deposited in the defendant bank until further
order of the court. The appellant argued the order constituted a prejudgment
attachment. However, the First District found the order to be different from an order of
attachment, which is issued by the court and delivered to a sheriff directing him to
attach the property of a defendant. Id. at 118. The court stated the order did not
determine the parties’ respective rights to the funds, and no prejudice resulted from
requiring that the funds be held by one party rather than another. Id. Moreover, the
court held the proceeds were subject to the further orders of the court, and thus the
action had not been determined. Id.
{¶14} In addition, appellants argue that the order is final and appealable based
on R.C. 2715.46. That section provides:
{¶15} “A party to a suit affected by an order discharging or refusing to discharge
an order of attachment may appeal on questions of law to reverse, vacate, or modify it
5 as in other cases; and the original action shall proceed to trial and judgment as though
no appeal had been taken.”
{¶16} While objections to the magistrate’s decision were pending as of March
21, 2013, there were no court orders providing for the attachment of the subject funds.
On March 21, 2013, the trial court issued an order, which required the deposit of
$169,045.70 with the Portage County Clerk of Courts until further order of the court.
This left a balance of $30,954.70 in the law firm’s IOLTA account. The court’s order
was, therefore, not an order that “discharged or refused to discharge” an order of
attachment. It simply ordered that the funds be held. Further, there was no request by
either party for the funds to be discharged. While the law firm had motions pending for
the discharge of a portion of the money held, the order of March 21, 2013, did not
authorize release of any of the balance. To the contrary, it merely ordered the law firm
to hold and sequester the remaining funds in the law firm’s IOLTA account. Thus, the
trial court’s March 21, 2013 judgment was not a final and appealable order pursuant to
R.C. 2715.46.
{¶17} Based on the foregoing analysis, the trial court’s March 21, 2013 judgment
entry was not a final, appealable order, and the instant appeal is dismissed for want of
such an order.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.