[Cite as Faraj v. Qasem, 2016-Ohio-3261.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 103374 

ALI FARAJ

PLAINTIFF-APPELLEE 

vs. 

HAMDI QASEM, ET AL.

 

DEFENDANT-APPELLEES 

[Appeal by Samir Mohammed 

Defendant-Appellant] 

JUDGMENT: 

DISMISSED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-12-794741

BEFORE: Stewart, J., E.T. Gallagher, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: June 2, 2016
ATTORNEY FOR APPELLANT

Monica E. Russell 

McFadden & Freeburg Co., L.P.A. 

6690 Beta Drive, Suite 320 

Mayfield Village, OH 44143 

 

ATTORNEYS FOR APPELLEES

For Ali Faraj

Jason D. Hochman 

Thomas A. Barni 

Dinn, Hochman & Potter, L.L.C. 

5910 Landerbrook Drive, Suite 200 

Mayfield Heights, OH 44124 

For Hamdi Qasem

Nicholas E. Longauer 

43 East Bridge Street, Suite 101 

Berea, OH 44107 

Also listed:

209 E. Bridge, L.L.C.

Statutory Agent 

3900 Woodland Avenue 

Cleveland, OH 44115 

3585 L.L.C.

WDW Agent Svcs Inc., Statutory Agent 

1220 West Sixth Street, Suite 660 

Cleveland, OH 44113
MELODY J. STEWART, J.: 

{¶1} Defendant-appellant Samir Mohammed appeals from the court’s refusal to 

grant him relief from a default judgment entered against him and in favor of 

plaintiff-appellee Ali Faraj. We lack a final order and must dismiss this appeal. 

{¶2} This case involves Faraj’s action against multiple defendants, including 

Mohammed, on a promissory note and a demand for foreclosure on property used as 

collateral on the note. A magistrate granted Faraj default judgment and money damages 

against Mohammed and other defendants who are not parties to this appeal. The 

magistrate’s decision certified that there is “no just reason for delay,” most likely because 

a claim made against the Cuyahoga County Fiscal Officer (denominated in the complaint 

as the “County Treasurer”) remained for adjudication. Mohammed objected to the 

magistrate’s decision. The court approved and adopted the magistrate’s decision, but 

without including the “no just reason for delay” language in its judgment entry. 

Mohammed filed a Civ.R. 60(B) motion for relief from judgment, but the court denied the 

motion. Faraj then filed a Civ.R. 41(A)(1) notice that he was voluntarily dismissing 

without prejudice “all defendants.” 
{¶3} After briefing had been completed, we asked the parties to file supplemental 

briefs on two issues: (1) whether the court’s failure to include the Civ.R. 54(B) “no just 

reason for delay” language in its order adopting the magistrate’s decision to grant default 

judgment meant that the default judgment was not final for purposes of Civ.R. 54(B); and 

(2) if the default judgment was not a final order, whether Faraj’s July 15, 2015 notice of 

voluntary dismissal of “all defendants” operated as a dismissal of the nonfinal default 

judgment entered against appellant Samir Mohammed. 

{¶4} As an appellate court, our jurisdiction applies only to “final” judgments or 

orders of lower courts. See Article IV, Section 3(B)(2) of the Ohio Constitution; Gen. 

Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). An 

order is considered “final” if it “affects a substantial right in an action that in effect 

determines the action and prevents a judgment.” R.C. 2505.02(B)(1). 

{¶5} As used in R.C. 2505.02(B)(1), the word “action” refers to all claims asserted 

against all parties. See Civ.R. 54(B) (“In the absence of a determination that there is no 

just reason for delay, any order or other form of decision, however designated, which 

adjudicates fewer than all the claims or the rights and liabilities of fewer than all the 

parties, shall not terminate the action as to any of the claims or parties * * *.”) The court 

may, however, make final what would otherwise be nonfinal by certifying that “there is 

no just reason for delay.” Id.; Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 

88, 541 N.E.2d 64 (1989). 
{¶6} The magistrate’s decision contained the Civ.R. 54(B) certification, but the 

court’s judgment entry approving the magistrate’s decision did not. This means that the 

default judgment entered against Mohammed was nonfinal. We addressed this same 

issue in Charter One Bank v. Tutin, 8th Dist. Cuyahoga No. 86556, 2006-Ohio-1361, 

where we held that a court’s judgment entry approving and adopting a magistrate’s 

decision without an express certification of no just reason for delay under Civ.R. 54(B) 

did not create a final order because not all of the claims against all of the parties had been 

adjudicated. Id. at ¶ 5. See also United Cos. Lending Corp. v. Robinson, 134 Ohio 

App.3d 96, 99, 730 N.E.2d 423 (8th Dist.1999) (court’s adoption of a magistrate’s 

decision finding no just reason for delay without incorporating the certification language 

into the judgment entry adopting the magistrate’s decision is “insufficient to comply with 

the judge’s duty under Civ.R. 54(B).”). 
{¶7} Although the default judgment was nonfinal, Mohammed asked the court to 

grant him relief from it under Civ.R. 60(B). The court had no authority to grant relief 

from a nonfinal judgment or order because Civ.R. 60(B), by its own terms, applies only to 

a “final judgment, order, or proceeding[.]” In Harper v. MetroHealth Med. Ctr., 8th 

Dist. Cuyahoga No. 81048, 2002-Ohio-5861, we considered a similar issue where the 

court granted summary judgment to less than all defendants in a case and failed to certify 

no just reason for delay. Instead of appealing, the aggrieved party filed a motion for 

relief from judgment. After the court refused to grant relief from judgment, an appeal 

followed. We held that the motion for summary judgment was not final (the court did 

certify that there was no just reason for delay), so the court could not grant relief from 

judgment. Id. at ¶ 5. See also Hadassah v. Schwartz, 1st Dist. Hamilton No. C-110699, 

2012-Ohio-3910, ¶ 10 (finding that trial court could not entertain a Civ.R. 60(B) motion 

for relief from judgment from a nonfinal default judgment). 

{¶8} The same applies here. Even though the court in this case purported to deny 

relief from the default judgment for substantive reasons, its ruling was nonetheless correct 

because the court had no authority under Civ.R. 60(B) to grant relief from a nonfinal 

default judgment. Fifth Third Bank v. Rose, 4th Dist. Gallia Nos. 07CA8 and 07CA9, 

2008-Ohio-3919, ¶ 12 (“Civ.R. 60(B) is not the proper procedural device a party should 

employ when seeking relief from a non-final order.”). 
{¶9} Having established that the default judgment was nonfinal, we have to 

consider this added wrinkle: after the court denied Mohammed relief from judgment, 

Faraj filed a notice of voluntary dismissal without prejudice against “all Defendants.” 

By stating that the dismissal was directed towards “all” defendants, that dismissal 

included Mohammed and all other defendants against whom interlocutory judgments had 

been entered. Hutchinson v. Beazer E., Inc., 8th Dist. Cuyahoga No. 86635, 

2006-Ohio-6761, ¶ 32 (“We have consistently followed [the] view that a voluntary 

dismissal of the entire case, pursuant to Civ.R. 41(A), dissolves all prior interlocutory 

orders made by the trial court in that action * * *.”); Charles Gruenspan Co., L.P.A. v. 

Thompson, 8th Dist. Cuyahoga No. 77276, 2000 Ohio App. LEXIS 4783 (Oct. 12, 2000) 

(recognizing that a voluntary dismissal, without prejudice, dissolves all interlocutory 

orders). 

{¶10} The notice of voluntary dismissal terminated the entire case, including the 

interlocutory default judgment against Mohammed. There is no case presently before us 

to consider on appeal. No matter how unintentional, it appears that Faraj threw the baby 

out with the bath water. 

{¶11} Appeal dismissed.

It is ordered that appellees recover of said appellant costs herein taxed. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

______________________________________________ 
MELODY J. STEWART, JUDGE 

EILEEN T. GALLAGHER, P.J., and 

MARY J. BOYLE, J., CONCUR