[Cite as Everhome Mtge. Co. v. Kilcoyne,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96982

EVERHOME MORTGAGE COMPANY PLAINTIFF-APPELLEE

vs.

CHRISTOPHER KILCOYNE, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-732303

BEFORE: S. Gallagher, J., Jones, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: February 16, 2012 FOR APPELLANT

Christopher Kilcoyne, pro se 4803 Brookpark Road Cleveland, OH 44134

ATTORNEYS FOR APPELLEE

David M. Gauntner Antonio J. Scarlato Felty & Lembright Co., L.P.A. 1500 West Third Street Suite 400 Cleveland, OH 44113

SEAN C. GALLAGHER, J.:

{¶1} Defendant-appellant Christopher Kilcoyne appeals the trial court’s decision

that adopted a magistrate’s decision in a foreclosure action and granted plaintiff-appellee

Everhome Mortgage Company (“Everhome”) a decree of foreclosure.1 For the following

1 We note that Kilcoyne is the only defendant appealing the trial court’s decision. All claims against the other defendants were disposed of through a motion for default judgment granted in favor of Everhome. reason, we dismiss the instant appeal for lack of jurisdiction: the trial court has not issued

a final, appealable order.

{¶2} On December 21, 2011, this court ordered the parties to show cause as to

whether the trial court’s March 29, 2011 judgment entry, adopting the magistrate’s

decision, was a final, appealable order. Appellee, the only responding party, contends

that the March 29, 2011 journal entry, granting summary judgment in favor of appellee

and against Christopher Kilcoyne, and the June 2, 2011 order, adopting the magistrate’s

decision, together constitute a final order. The journal entry granting summary

judgment, however, granted partial judgment on liability only. The trial court

specifically ordered appellee to file a proposed magistrate’s decision. The trial court’s

June 2, 2011 order adopted and incorporated the magistrate’s decision and purported to

resolve all remaining issues. The trial court further stated the final entry was a “separate

and distinct” instrument.

{¶3} When the court adopts, rejects, or modifies a magistrate’s decision, it must

also enter a judgment. Civ.R. 53(D)(4)(e). The judgment entry must contain a clear

pronouncement of the court’s judgment and a statement of relief and must be a complete

document, separate and apart from that of the magistrate’s order. Deutsche Bank Natl.

Co. v. Caldwell, 8th Dist. No. 96249,

,

. Merely

stating that the document is a separate and distinct instrument is patently insufficient to

establish the distinctness element when a copy of the magistrate’s decision is attached to

the judgment entry and incorporated by reference.

{¶4} “[A] ‘judgment’ must be distinguished from a ‘decision.’ Indeed, pursuant

to Civ.R. 54(A), a judgment shall not contain * * * the magistrate’s decision in a referred

matter * * *. These matters are properly placed in the decision.” (Internal citations and

quotations omitted.) Harkai v. Scherba Industries, Inc.,

,

(9th Dist. 2000). In this case, the trial court attached, and

incorporated by reference, a copy of the magistrate’s decision to the March 29, 2011

judgment. Pursuant to the plain language of Civ.R. 54(A), the judgment of the court

cannot contain the magistrate’s decision, and therefore, there is no final, appealable order.

We are cognizant that this may seem to be placing form over substance, but we are

constrained to apply the rules as written and interpreted by prior decisions.

{¶5} We accordingly dismiss the current appeal for lack of jurisdiction.

It is ordered that appellee recover from appellant costs herein taxed.

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

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, P.J., and COLLEEN CONWAY COONEY, J., CONCUR