[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 Appellant

v. MY PILLOW, INC. and MIKE LINDELL (CEO) Appellees C.A. No. 29136

APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 18 CVI 00797

DECISION AND JOURNAL ENTRY Dated: August 5, 2020

SCHAFER, Judge. {¶1} Defendant-Appellant, Mark Figet akis appeals the decision of the Akron Municipal Court adopting the magistrate’s d ecision. For the reasons that follow, this Court dismisses the attempted appeal for l ack of jurisdiction.

I. {¶2} In January 2018, Mr. Figetakis f iled a complaint in the Small C laims Division of the Akron Municipal Court naming t wo defendants: Mike Lindell C .E.O., and My Pillow, Inc. In his complaint, Mr. Figetakis sought $6,000 in damages for an al leged 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 M y 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 s ubmitted evidence during the h earing.2

{¶4} The magistrate issued a decision on June 4, 2018, with findings of fact and conclusions of law. The magistrat e concluded that Mr. Figetaki s entered into an agreement with My Pillow, Inc. “to purchase a pillow and both parties performe d their duties under the agreement.” The magistrate further concluded that My Pillow, Inc. honored i ts warranty when it sent Mr. Figetakis a replacement pillow a nd then offered to give him ano ther replacement pillow. Finally, the magistrate concluded Mr. Figetakis was not entitled to a fu ll refund for the pillows. Consequently, the magistrate rec ommended that the trial court e nter judgment against Mr. Figetakis and in favor of the defendants. {¶5} Mr. Figetakis filed objections a sserting that “[t]here are many errors of law and fact” in the magistrate’s decision. On July 13, 2018, the tria l court issued a “ruling on the objection,” overruling Mr. Figeta kis’s objections and adopting the magistrate’s decision. Thereafter, Mr. Figetakis moved the trial court to reconsider i ts 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, prese nting three assignments of error for our review. Recognizing that the deci sion being appealed adopted the magistrate’s decision, this Court ordered the parties to file r esponses addressing the issue of

whether the trial court had inde pendently entered judgment. Mr . Figetakis submitted a perplexing response vaguely discussing issues of finality, but not directl y addressing whether the trial court independently entered judgment on the magistrate’s decision. T he response references the trial

court’s denial of the motion to r econsider that Mr. Figetakis f iled subsequent to the trial court’s ruling on his objections and adopting the magistrate’s decision . In his response, Mr. Figetakis3

requested that this Court not dismiss the appeal. My Pillow, I nc. and Mike Lindell C.E.O did not file a response. This Court provi sionally 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 t he determination as to a final appe alable order and jurisdiction, a final appealable order must comply wi th 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, M agistrate’s Appeal Court Walsh order dated August, 10, 2018, stated “ upon review of the initial fili ng this court requires additional information t o determine its jurisdiction t o consider this appeal. Specifically, it is unclear whether the trial court ha s 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 outc ome of the dispute a nd the remedy provide d. [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 meri ts 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 adjudicat e all claims and contends that the4

magistrate failed to include Civ.R. 54(B) language. Consequent ly, he argues, the trial court’s ruling on his objections to the ma gistrate’s decision were moot , rendering the trial court’s decision a non-final order. In his second assignment of error, Mr. Fige takis 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 appe ars 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 fin ality of the trial court’s order and this Court’s j urisdiction to hear his appeal. After reviewing the record this Court agrees that the decision appealed is not a final appealable ord er, 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 act ion by entering judgment.” Harkai v. Scherba Industries, Inc. , 136 Ohio App.3d 211, 218 (9th Dist.2000). “A magistrate’s decision is not eff ective unless adopted by the co urt.” 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 undert ake an independent review as to the objected matte rs to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d). “A court th at 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 j udgment will be[,]” while the a ctual 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 agr ees with the decision of the magistrate, the judge must still separately enter his or her ow n judgment setting forth the outcome of the dispute and the remedy provided.” Harkai at 218. “[A] trial cour t order stating only that it is adopting a magistrate’s decision does not disclose how the t rial 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, t he trial court must independently enter judgment setting forth the outcome of the dispute, indica ting the remedy provided, and fully determining the action. Thompson v. Thompson , 9th Dist. Medina No. 07CA0023-M, 2009-Ohio179, ¶ 9-10. {¶11} Where, as is the case here, the trial court states that the mag istrate’s decision is adopted, but “the court’s own j udgment [i]s not independently s et 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 magistrat e’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 th at the magistrate concluded Mr. Figetakis “was not entitled to a full refund” and that the magistrate rec ommended “that [Mr. Figetakis]’s complaint be denied.” However, in overruling Mr. Figetakis’s o bjections and adopting the magistrate’s decision, the tria l court did not independently ac t upon the magistrate’s recommendation by entering judgment against Mr. Figetakis and i n 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 tri al court most likely intended that this entry constitute the ‘judgment’ in the case[;]” “[i]t is the su bstance of the entry, however, that must

control.” Harkai at 220. Although the trial cour t stated it was adopting the m agistrate’s decision, the trial court did not separately enter a judgment setting for th the outcome of the dispute in a

manner that would make clear the r elief afforded to the parties

. III. {¶13} This Court lacks jurisdiction to consider this appeal because M r. Figetakis has not appealed from a final appealable order. Appeal dismissed.

Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT7

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.