[Cite as Schutte v. Strittmatter, 2018-Ohio-3472.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

ROBERT SCHUTTE, et al. 

 Appellants 

 v. 

DAVID W. STRITTMATTER, et al. 

 Appellees 

C.A. No. 28886 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CV-2015-04-2129 

DECISION AND JOURNAL ENTRY 

Dated: August 29, 2018 

 

SCHAFER, Presiding Judge. 

{¶1} Counterclaim Defendant-Appellant, Robert Schutte, appeals the judgment of the 

Summit County Court of Common Pleas.1 For the reasons that follow, we reverse and remand. 

I. 

{¶2} Schutte, along with his wife and daughter (“Schuttes”), filed a complaint 

involving a property dispute against the City of Green and several of the Schuttes’ neighbors, 

including Counterclaim Plaintiff-Appellee, Brian Fitzgibbon. The matter was referred to a 

magistrate. After a denial of Mr. Fitzgibbon’s motion to dismiss the Schuttes’ complaint, Mr. 

Fitzgibbon filed an answer and a compulsory counterclaim against Mr. Schutte arising out of the 

 1

 The notice of appeal in this matter was titled “Plaintiffs’ Notice of Appeal” and was 

filed on behalf of “Plaintiffs, Robert, Susan, and Sarah Schutte[.]” However, only Robert 

Schutte was named as a counterclaim defendant in this matter and judgment on the counterclaim 

was only rendered against Robert Schutte. Thus, Susan and Sarah Schutte are not parties to this 

appeal. 
2 

 

property dispute and alleging intentional interference with contractual relations and criminal acts 

against property pursuant to R.C. 2307.60. 

{¶3} The trial court eventually granted summary judgment to all of the defendants on 

each claim raised in the Schuttes’ complaint. In a subsequent order the magistrate noted that Mr. 

Fitzgibbon’s counterclaim remained outstanding and that the matter was scheduled for a bench 

trial. Mr. Schutte thereafter filed a “motion for clarification” asserting that although the 

magistrate had scheduled a bench trial in the matter, Mr. Fitzgibbon had filed a jury demand in 

his answer and counterclaim. Upon review of Mr. Fitzgibbon’s answer and counterclaim, the 

magistrate found that no request or demand for trial by jury existed and denied Mr. Schutte’s 

“motion for clarification” in a magistrate’s order filed October 19, 2016. On October 24, 2016, 

Mr. Schutte filed an “objection to denial of right to jury trial.” 

{¶4} The matter then proceeded to a bench trial before the magistrate. In a decision 

filed December 19, 2016, the magistrate determined that judgment should be granted to Mr. 

Fitzgibbon on the claims of intentional interference with a contract and criminal acts against 

property. On December 27, 2016, Mr. Schutte filed an objection to the magistrate’s decision. 

Following a damages hearing, the magistrate filed a second magistrate’s decision on April 18, 

2017, awarding Mr. Fitzgibbon damages in the amount of $24,738.92. Both Mr. Schutte and Mr. 

Fitzgibbon filed objections to the April 18, 2017 magistrate’s decision. 

{¶5} The trial court ultimately overruled both Mr. Schutte’s and Mr. Fitzgibbon’s 

objections and adopted the magistrate’s decision in its entirety on July 27, 2017. 

{¶6} Mr. Schutte filed this timely appeal, raising two assignments of error for our 

review. 
3 

 

II. 

Assignment of Error I 

The trial court violated Civ.R. 38(C) and denied [Mr. Schutte’s] 

fundamental Constitutional rights, by refusing to honor [his] demand for a 

trial by jury[.] 

{¶7} In his first assignment of error, Mr. Schutte contends that the trial court erred by 

denying his “Objection to Denial of Right to Jury Trial.” As a review of the record in this case 

shows that Mr. Schutte demanded a trial by jury for all triable issues in his original complaint 

and did not thereafter waive that right, we agree. 

{¶8} Both Article I, Section 5 of the Ohio Constitution and Civ.R. 38(A) provide that 

the right to a trial by jury is inviolate. Pursuant to Civ.R. 38(B), “[a]ny party may demand a trial 

by jury on any issue triable of right by a jury by serving upon the other parties a demand 

therefore at any time after the commencement of the action and not later than fourteen days after 

the service of the last pleading directed to such issue.” Civ.R. 38(C) states, “[i]n his demand a 

party may specify the issues which he wishes so tried; otherwise he shall be deemed to have 

demanded trial by jury for all the issues so triable.” A demand for a trial by jury made pursuant 

to the rule “may not be withdrawn without the consent of the parties.” Civ.R.38(D). 

Additionally, “[t]he Ohio Supreme Court explicitly adopted [this Court’s reasoning] that ‘once a 

general jury demand is made pursuant to Civ.R. 38, the only ways to waive such right are found 

in Civ.R. 39(A).’” Jovanovski v. Kotefski, 9th Dist. Lorain Nos. 07CA009230, 07CA009223, 

2008-Ohio-4773, ¶ 15, quoting Soler v. Evans, St. Clair, & Kelsey, 94 Ohio St.3d 432, 438 

(2002). Civ.R. 39(A) provides: 

When trial by jury has been demanded as provided in [Civ.R. 38], the action shall 

be designated upon the docket as a jury action. The trial of all issues so 

demanded shall be by jury, unless (1) the parties or their attorneys of record, by 

written stipulation filed with the court or by an oral stipulation made in open court 
4 

 

and entered in the record, consent to trial by the court sitting without a jury or (2) 

the court upon motion or of its own initiative finds that a right of trial by jury of 

some or all of those issues does not exist. 

{¶9} In this case, after the trial court granted summary judgment to the defendants on 

all of the claims in the Schuttes’ complaint, the magistrate issued an order on October 4, 2016, 

stating that Mr. Fitzgibbon’s counterclaim remained outstanding and that the matter was 

scheduled for a bench trial. Mr. Schutte filed a “motion for clarification” asserting that he was 

entitled to a jury trial because Mr. Fitzgibbon had filed a jury demand in his answer and 

counterclaim. However, in an order filed October 19, 2016, the magistrate denied Mr. Schutte’s 

“motion for clarification” since no request or demand for trial by jury existed in Mr. Fitzgibbon’s 

answer or counterclaim. Subsequently, on October 24, 2016, Mr. Schutte filed an “objection to 

denial of right to jury trial” in reference to the magistrate’s order filed October 19, 2016, wherein 

Mr. Schutte “re-assert[ed his] right to a jury trial on all issues of facts, under the jury demand 

contained in [the Schuttes’] complaint.” 

{¶10} Although Mr. Schutte filed an objection to the magistrate’s order denying his 

“motion for clarification,” the trial court treated Mr. Schutte’s “objection to denial of right to 

jury trial” as a motion to set aside the October 19, 2016 magistrate’s order pursuant to Civ.R. 

53(D)(2).2 The trial court ultimately denied Mr. Schutte’s motion after a bench trial was held 

before the magistrate because (1) the “‘objection’, construed as a motion, fail[ed] to provide any 

support or authority for his assertion” that [he was] entitled to a jury trial; (2) the magistrate had 

 2

 Although Mr. Fitzgibbon argues in his merit brief that Mr. Schutte’s “objection to 

denial of right to jury trial” was untimely because it was filed October 24, 2016, but challenged 

the magistrate’s order filed twenty days earlier on October 4, 2016, we note that the trial court 

specifically treated the “objection” as a motion to set aside the magistrate’s order filed October 

19, 2016, and not the magistrate’s order filed October 4, 2016. See Civ.R. 53(D)(2)(b) (stating 

that a motion to set aside a magistrate’s order must be filed within ten days of the magistrate’s 

order).
5 

 

no reason to address the contention that [he was] entitled to a jury trial based on the jury demand 

contained in his own complaint since it “was not raised until after the [m]agistrate’s [o]rder 

issued;” and (3) the jury demand contained in the Schuttes’ complaint “was rendered moot” 

when “all issues of fact and law as it concerned [the Schuttes’] original complaint were disposed 

of by [the trial court]’s” grant of summary judgment to all the defendants in a final and 

appealable order on September 20, 2016.

{¶11} “We review a trial court’s decision to deny a motion to set aside a magistrate’s 

order for abuse of discretion.” Freeman v. Freeman, 9th Dist. Wayne No. 07CA0036, 2007-

Ohio-6400, ¶ 43, citing Baire v. Baire, 102 Ohio App.3d 50, 53 (9th Dist.1995). “The term 

‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court’s 

attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 

217, 219 (1983). 

{¶12} In this case, the trial court based its decision to deny Mr. Schutte’s “objection” 

first, on the finding that Mr. Schutte violated Loc.R. 7.14(A) by failing to provide any support or 

authority for his assertion that he was entitled to a jury trial. Loc.R. 7.14 states, in pertinent part, 

“[e]very motion filed shall be accompanied by a brief stating the grounds upon which it is based, 

and a citation of authorities relied upon to support the motion. * * * Every motion so filed * * * 

shall be determined upon the written statements of reasons in support or opposition, as well as 

the citation of authorities.” Nonetheless, failure to comply with a local rule is not mentioned in 

Civ.R. 39 as a possible method to waive the right to a jury trial. Moreover, although Mr. 

Schutte’s “objection” was not accompanied by a brief, the “objection” specifically stated the he 

was asserting his right to a jury trial based on the jury demand contained in his complaint. 
6 

 

{¶13} The trial court’s second basis for denying Mr. Schutte’s “objection” was that the 

magistrate had no reason to address Mr. Schutte’s contention that he was entitled to a jury trial 

based on the jury demand contained in the Schuttes’ original complaint since Mr. Schutte never 

raised the issue before the magistrate. Indeed, a review of Mr. Schutte’s “motion for 

clarification” shows that in support of his assertion to the magistrate that he was entitled to a jury 

trial, Mr. Schutte specifically pointed the magistrate to a jury demand allegedly contained within 

Mr. Fitzgibbon’s answer and counterclaim. However, Mr. Schutte thereafter filed his “objection 

to denial of right to jury trial” on October 24, 2016, eight weeks prior to the bench trial in this 

matter, specifically re-asserting his right to a jury trial based on the jury demand in the Schuttes’ 

original complaint. Additionally, a review of the excerpt transcript of the bench trial shows that 

during opening statements, Mr. Schutte’s trial counsel again asserted Mr. Schutte’s objection to 

not having a jury trial in this matter. Moreover, pursuant to Civ.R. 39(A), the matter should have 

previously been designated upon the docket as a jury action when the Schuttes filed their original 

complaint. 

{¶14} Finally, we disagree with the trial court’s determination that Mr. Schutte’s jury 

demand was rendered moot by the trial court’s grant of summary judgment to all defendants on 

all claims in the Schuttes’ complaint. A review of the Schuttes’ verified complaint shows that 

Mr. Schutte made a general jury demand by specifically “demand[ing] a trial by jury to all the 

claims to which they are entitled under the law.” In Soler, 94 Ohio St.3d at 438, the Supreme 

Court of Ohio specifically recognized that “[t]he dismissal of the pleading containing the jury 

request is not mentioned as a possible method to waive the right to a jury trial.” Thus, “if a 

general jury demand is made without specifying particular issues, it will be interpreted as a 

demand for a jury trial on all issues triable by a jury” and “a second demand need not be made 
7 

 

after the filing of a counterclaim to assure a jury trial on issues raised in the counterclaim or 

reply.” Id. at 437, citing Horwitz v. Alloy Automotive Co., 677 F. Supp. 564, 566 (N.D.Ill.1988). 

{¶15} “Since none of the waiver methods mentioned in Civ.R. 39 was utilized in this 

case, [Mr. Schutte]’s right to a jury trial remained intact.” Id. at 439. Therefore, we conclude 

that the trial court abused its discretion by denying Mr. Schutte’s “objection to denial of right to 

jury trial.” 

{¶16} Mr. Schutte’s first assignment of error is sustained and this matter is remanded for 

further proceedings consistent with this decision. 

Assignment of Error II 

The trial court erred, as a matter of law, in affirming the magistrate’s 

determination that disclosures of accurate information to a prospective home 

buyer can support a claim for tortious interference with contract[.] 

{¶17} In his second assignment of error, Mr. Schutte contends that the trial court erred 

by adopting the magistrate’s determination that disclosures of accurate information to a 

prospective buyer can support a claim for tortious interference with a contract. Mr. Schutte also 

contends that the trial court erred by adopting the magistrate’s decision that Mr. Schutte was 

liable for tortious interference with a contract where the contract was enforceable but Mr. 

Fitzgibbon consented to its cancellation. However, our resolution of Mr. Schutte’s first 

assignment of error renders his second assignment of error moot and we decline to address it. 

See App.R. 12(A)(1)(c). 

III. 

{¶18} Mr. Schutte’s first assignment of error is sustained and his second assignment of 

error is moot. Therefore, the judgment of the Summit County Court of Common Pleas is 

reversed and this matter is remanded for further proceedings consistent with this decision. 
8 

 

Judgment reversed 

and cause remanded. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 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 Appellees. 

 

 JULIE A. SCHAFER 

 FOR THE COURT 

CARR, J. 

CALLAHAN, J. 

CONCUR. 

APPEARANCES: 

PAUL W. FLOWERS, Attorney at Law, for Appellants. 

BRYAN P. O’MALLEY and DEAN M. VALORE, Attorneys at Law, for Appellees.