Wednesday, June 7, 2017

On orders, final orders, and judgments

Perhaps no issue more consistently perplexes litigants (and sometimes, it must be said, judges) than whether a particular order is merely an order, a "final order," or a "judgment." The distinction matters a great deal, and in this case it (for now, at least) cost the plaintiff a shot at almost 8 million bucks.

The case is Dyer v. Schwan's Home Service, Inc. Plaintiff Douglas Dyer was badly injured in a car accident caused by an employee of Schwan's, and a jury awarded him some $10 million in damages. The trial judge journalized an order reflecting the jury's award but reserving the question of whether to award prejudgment interest. Schwan's filed post-trial motions under Civil Rules 50 and 59.

While those three motions were pending, Dyer filed a new execution case, and initiated garnishment proceedings against Schwan's. The court in the second action issued garnishment orders (a task which, under Ohio law, is typically performed as a matter of course, and without any substantive pre-issuance review of the merits or propriety of the garnishment) and the garnishees deposited more than $7.8 million with the clerk of courts. Schwan's objected to the garnishment and moved to dismiss the garnishment action, on the ground that the underlying civil judgment was not yet final, and therefore could not serve as the basis for a garnishment proceeding. The judge in the garnishment action stayed that proceeding, but did not dismiss it. Each side appealed--Dyer appealing the stay, and Schwan's appealing the failure to dismiss.

The Tenth District sided with Schwan's. The court reasoned that, per Civil Rules 58 and 54(B), the order awarding the damages established by the jury was not a "judgment" because it expressly reserved ruling on the issue of prejudgment interest. And it concluded that the garnishment proceeding should have been dismissed because R.C. 2716.11 permits the garnishment of property only "after a judgment has been obtained." Dyer raised a few arguments based on Appellate Rule 4(B) (which relates generally to the time in which a notice of appeal must be filed) but the court (correctly) made quick work of those.

This case stands out for a couple of reasons. First, the order reflecting the jury's damages award expressly indicated that it was not a final, appealable order. Why Dyer's counsel thought it could serve as the basis for a new execution case is frankly beyond me. (The arguments based on Appellate Rule 4(B) strike me as a misguided effort at post-hoc rationalization.) Second, while the dismissal of the garnishment action means that the $7.8 million will be returned to Schwan's, it may be the case that this merely delays the inevitable. Assuming that Schwan's motions under Rules 50 and 59 are unsuccessful, Dyer obviously has a pretty good idea of where to find garnishable assets in the future.

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