[Cite as Middleton v. Luna's Restaurant & Deli, L.L.C.,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

DAVID B. MIDDLETON

Plaintiff-Appellee

-vs-

LUNA'S RESTAURANT AND DELI, LLC, ET AL

Defendant-Appellees

JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. : : : Case No. 2011-CA-00181 : : : OPINION

MIKE TABBAA

Defendant-Appellant

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2010 CV003251

JUDGMENT: Vacated

DATE OF JUDGMENT ENTRY: January 30, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DAVID B. SPALDING MIKE TABBAA PRO SE 157 Wilbur Drive N.E. 8405 Cherry Hill Lane North Canton, OH 44720 Broadview Heights, OH 44147 Gwin, P.J.

{1} Defendant-appellant Mike Tabbaa appeals a judgment of the Court of

Common Pleas of Stark County, Ohio, which affirmed the decision of a magistrate

overruling appellant’s motion for relief from judgment. Plaintiff-appellee is David B.

Middleton. Appellant assigns four errors to the trial court:

{2} “I. THE TRIAL COURT ERRED IN PROCEEDING WITH THE CASE

ONCE THE NOTICE OF APPEAL WAS FILED ON JANUARY 7, 2011. THUS, ALL

JUDGMENTS RENDERED AFTER THIS DATE, MOST NAMELY THE DEFAULT

JUDGMENT AGAINST MR. TABBAA ARE VOID AND MUST BE VACATED.

{3} “II. EVEN THOUGH THE TRIAL COURT WAS WITHOUT JURISDICTION

TO PROCEED ON MR. TABBAA’S MOTION FOR RELIEF FROM JUDGMENT, ITS

DENIAL OF SAID MOTION IS IN ERR (sic) AS A MATTER OF LAW.

{4} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN RULING ON

APPELLEE’S SUPPLEMENTAL PLEADINGS BECAUSE APPELLEE NEVER

SOUGHT LEAVE NOR WAS GRANTED LEAVE TO FILE SUCH PLEADINGS.

{5} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN RULING ON THE

SECOND AMENDED AND SUPPLEMENTAL COMPLAINT AND GRANTING

DEFAULT JUDGMENT AGAINST MR. TABBAA BECAUSE HE WAS NOT A NAMED

PARTY DEFENDANT IN THIS PLEADING.”

{6} For the reasons that follow, we vacate the judgment of the trial court.

{7} A review of the docket demonstrates the original personal injury complaint

in this matter was filed September 7, 2010. On October 15, 2010, the court granted a

default judgment in favor of Middleton as to liability only. On October 29, 2010, a magistrate entered judgment in favor of Middleton in the amount of $242,240.49 plus

costs. On November 10, 2010, counsel for defendant entered an appearance and on

November 15, 2010, objected to the magistrate’s decision of October 29. On December

21, 2010, appellant moved to vacate the default judgment and also to file an answer

instanter. The court overruled both branches of the motion, and on January 7, 2011,

appellant filed a notice of appeal. It appears that appellant did not deposit a supersedes

bond, and the court overruled his motion for stay. Middleton then began to take steps to

execute his judgment while the matter was pending before us.

{8} On February 11, 2011, Middleton filed a document headed “Supplemental

Complaint”, in which he added two defendants and additional claims. On March 22,

2011, Middleton filed a motion for default judgment on the Supplemental Complaint. On

March 25, 2011, Middleton filed a document captioned “Amended and Second

Supplemental Complaint”, adding yet had another defendant. The court granted a

default judgment on the first Supplemental Complaint on March 28, 2011. On May 26,

2011, the court granted a default judgment on the second Supplemental Amended

Complaint.

{9} On August 29, 2011, this court journalized its decision affirming the trial

court’s original judgment. Middleton v. Luna’s Restaurant & Deli, LLC, Fifth District App.

No. S2011-CA-00004,

, 2011WL3847184.

{10} In this second appeal, appellant argues the trial court lacked jurisdiction to

proceed on the amended and supplemental complaints because the underlying

judgment was pending before this court. Appellee replies a trial court has jurisdiction to

proceed on issues entirely distinct from those raised on appeal. {11} With few exceptions, a trial court loses jurisdiction over a case once a

notice of appeal is filed. A court may proceed in matters which aid the pending appeal.

In Re: S. J.,

,

,

. A court has

jurisdiction to take action to enforce a judgment which is pending on appeal if there is no

stay. Sparks v. Sparks, Twelfth App. No. CA2010-10-096,

,

20011WL5353081 at footnote 1. A court may consider collateral issues not related to

the merits of the action, such as a motion for sanctions or a motion for criminal

contempt. State ex rel. Hummel v. Sadler,

,

,

, ¶ 23, citations deleted. A trial court may not assume jurisdiction over

matters inconsistent with the appellate court’s jurisdiction to review, reverse, modify, or

affirm the judgment. State ex rel. Rock v. School Employees Retirement Board,

, 2002-Oihio-3957,

, ¶ 8 (per curium).

{12} Some of the matters the trial court dealt with while the first appeal was

pending related to execution of the judgment against the original defendant, and the

court had jurisdiction to do so. However, we find the new causes of action against new

defendants based upon the underlying judgment on appeal before us should have been

stayed for lack of jurisdiction until this court announced its decision. A party cannot

amend or supplement a complaint upon which the trial court has already entered a final

order resolving all the issues.

{13} We find the trial court lacked jurisdiction to proceed on the Supplemental

Complaint and the amended Supplemental Complaint. Accordingly, we vacate the

judgment in question. {14} The first assignment of error is sustained. The remaining assignments of

error are moot.

{15} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is vacated.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

DAVID B. MIDDLETON : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : LUNA'S RESTAURANT AND DELI, LLC, ET AL : : : Defendants-Appellees : CASE NO. 2011-CA-00181

MIKE TABBAA

Defendant-Appellant

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Stark County, Ohio, is vacated. Costs to appellee.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE