Covatch v. Cent. Ohio Sheltie Rescue, Inc.

[Cite as Covatch v. Cent. Ohio Sheltie Rescue, Inc., 2016-Ohio-1241.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Veronica Wagner Covatch et al., :

Plaintiffs-Appellees, : No. 15AP-699

(M.C. No. 2014CVF 24571)

v. :

(REGULAR CALENDAR)

Central Ohio Sheltie Rescue, Inc. et al., :

Defendants-Appellants. :

D E C I S I O N

Rendered on March 24, 2016

On brief: James H. Banks, for appellees. Argued: Nina M.

Najjar

On brief: John A. Bell, for appellants. Argued: John A.

Bell

APPEAL from the Franklin County Municipal Court

LUPER SCHUSTER, J.

{¶ 1} Defendants-appellants, Central Ohio Sheltie Rescue, Inc. ("COSR") and

Penny Sanderbeck, appeal from an order of possession of the Franklin County Municipal

Court granting the complaint in replevin of plaintiffs-appellees, Veronica Wagner Covatch

and Michelle Wilson. For the following reasons, we dismiss for lack of jurisdiction.

I. Facts and Procedural History

{¶ 2} On July 28, 2014, appellees filed a complaint against appellants asserting

causes of action for replevin, conversion, piercing the corporate veil, and money damages

arising from the possession of an American Kennel Club ("AKC") Shetland Sheepdog with

the AKC registered name Legacies Pipe Dream and nickname Piper. Appellees alleged in

the complaint that they are the co-owners of Piper, that Piper is implanted with an

identifying microchip, and that appellants took possession of Piper and refused to return

No. 15AP-699 2

her to appellees. Further, appellees alleged in the complaint that Piper is worth

approximately $5,000.

{¶ 3} Pursuant to R.C. 2737.03, appellees filed with their complaint affidavits in

replevin. In her affidavit, Covatch averred she bred Piper and registered her at birth. Due

to travel needs in December 2013, Covatch averred she made arrangements for Piper to

stay with an acquaintance identified as Cheavaen with the understanding that Cheavaen

would return Piper to Covatch in April 2014. However, on April 17, 2014, the Franklin

County Animal Shelter ("the shelter") took possession of Piper after Piper got loose from

Cheavaen's fenced-in yard. Covatch further averred she did not learn of Piper's placement

in the shelter until April 22, 2014. According to her affidavit, immediately upon learning

of Piper's placement in the shelter, Covatch contacted the shelter which informed her it

had given Piper to COSR, operated by Sanderbeck. That same day, Covatch averred she

contacted Sanderbeck both by phone and email to make demand for Piper's return.

Despite providing ownership documentation and verifying Piper's microchip

identification, Covatch averred Sanderbeck refused to return Piper to her.

{¶ 4} Contemporaneous with their complaint, appellees also filed a motion for an

order of immediate possession. The trial court granted the motion and ordered

appellants to return Piper to appellees. In lieu of returning Piper, however, appellants

posted a counter-replevin bond of $10,000. In their answer filed September 2, 2014,

appellants admitted they had not returned Piper but denied that appellees were the

rightful owners of Piper.

{¶ 5} On October 14, 2014, appellants filed a motion for partial judgment on the

pleadings seeking to dismiss the fraud claims and the claims against Sanderbeck in her

individual capacity. The trial court denied the motion for partial judgment on the

pleadings in a November 18, 2014 entry.

{¶ 6} After obtaining leave from the trial court, appellees filed an amended

complaint asserting additional claims of state law violations, due process violation, fraud,

unjust enrichment, and conspiracy. Appellees also named additional defendants,

including Franklin County, Franklin County Commissioner Marilyn Brown, Franklin

County Commissioner Paula Brooks, Franklin County Commissioner John O'Grady,

Franklin County Dog Shelter, and Deborah L. Finelli in her individual capacity and/or in

No. 15AP-699 3

her capacity as Director of the Franklin County Department of Animal Care and Control

(collectively "county defendants"). In their amended complaint, appellees sought

injunctive relief and replevin, $15,000 in compensatory and/or punitive damages, and

reasonable attorney fees.

{¶ 7} On March 12, 2015, appellants filed a motion for a protective order, alleging

appellees were responsible for a "campaign of harassment and bullying," including an

alleged burglary of Sanderbeck's home, harassing telephone calls, and threatening posts

on social media. (Motion for Protective Order, 2.) Appellees responded in an April 2,

2015 memorandum contra denying they participated in the activity appellants alleged in

their motion.

{¶ 8} On March 17, 2015, the newly added county defendants filed a motion to

dismiss based on statutory immunity.

{¶ 9} On June 18, 2015, appellants filed counterclaims against appellees,

asserting causes of action of contract interference, advantageous relationship

interference, defamation, injunctive relief, burglary, theft, and criminal damaging, and

false light invasion of privacy, seeking money damages and other appropriate relief. In

response, appellees filed a motion to strike appellants' counterclaims.

{¶ 10} At a July 23, 2015 hearing on the replevin action, the trial court indicated it

was the trial court's intent to dismiss the county defendants and to grant appellees'

motion to strike the counterclaims. At the conclusion of the replevin hearing, the trial

court issued an order of possession requiring appellants to return Piper to appellees that

same day. In the final order of possession, the trial court noted it would "file a separate

entry journalizing the Court's disposition of" the other matters it discussed at the

beginning of the replevin hearing. (July 23, 2015 Final Order of Possession.)

{¶ 11} Appellees filed a timely notice of appeal from the trial court's July 23, 2015

final order of possession. Additionally, appellants sought a stay of the trial court's final

order of possession, which this court denied in an entry filed August 5, 2015. In a July 24,

2015 entry, the trial court continued the matter for a trial on the remaining claims,

scheduling the trial for August 27, 2015.1

1It appears from the trial court's online docket that the trial court, in an entry dated August 21, 2015,

granted appellants' motion to stay further proceedings pending this appeal.

No. 15AP-699 4

II. Assignments of Error

{¶ 12} Appellants assign the following errors for our review:

[1.] The trial court erred to the substantial prejudice of the

animal rescue appellants and abused its discretion when it

refused to allow them to present their evidence and witnesses

at the July 23, 2015, hearing on the order of possession.

[2.] The trial court erred to the substantial prejudice of the

animal rescue appellants and abused its discretion when it

granted an order of possession to the plaintiffs-appellees, the

breeder and an alleged 'co-owner' contracted to breed and

show the dog, for a dog that had been unconditionally turned

over to the animal rescue appellants in the ordinary course of

the shelter's operations and in compliance with the Ohio

Revised Code, after being impounded as an unlicensed stray,

and unclaimed in the county animal shelter for longer than

the prescribed holding time.

[3.] The trial court erred to the substantial prejudice of the

animal rescue appellants and abused its discretion when it

denied the appellants motion for discovery sanctions and in

limine despite the plaintiffs-appellants knowing failure and

willful refusal to respond to proper discovery requests.

[4.] The trial court erred to the substantial prejudice of the

animal rescue appellants and abused its discretion when it

overruled their timely objection to the plaintiffs-appellees'

submission of hearsay and evidence not disclosed in discovery

despite proper requests.

[5.] The trial court erred to the substantial prejudice and

abused its discretion when it granted the plaintiff-appellees'

motion to strike the counterclaims filed by defendant-

appellant Central Ohio Sheltie Rescue, Inc., and denied the

motion for leave to file and serve the counterclaims, some of

which had accrued well after the original pleadings were filed.

III. Final Appealable Order

{¶ 13} On August 20, 2015, appellees moved to dismiss the appeal, contending the

trial court's decision is not final and appealable. Because this court's jurisdiction turns on

whether appellants appealed from a final appealable order, we first address appellees'

motion.

No. 15AP-699 5

{¶ 14} Under the Ohio Constitution, Article IV, Section 3(B)(2), this court's

jurisdiction on appeal is limited to a review of final orders of lower courts. Final orders

are those that "dispos[e] of the whole case or some separate and distinct branch thereof."

Lantsberry v. Tilley Lamp Co., Ltd., 27 Ohio St.2d 303, 306 (1971). A trial court order is

final and appealable only if it satisfies the requirements in R.C. 2505.02, and, if

applicable, Civ.R. 54(B).

{¶ 15} This is a multi-party, multi-claim case. There is no dispute that the trial

court's order contains the Civ.R. 54(B) language that there is no just reason for delay.

However, the inclusion of the Civ.R. 54(B) language "does not turn an otherwise non-final

order into a final appealable order." Noble v. Colwell, 44 Ohio St.3d 92, 96 (1989). Thus,

we must still determine whether the trial court's order is a final order as defined in R.C.

2505.02(B). The only division with arguable application would be R.C. 2505.02(B)(4).

{¶ 16} An order is final and appealable under R.C. 2505.02(B)(4) if it "grants or

denies a provisional remedy," provided the order meets two conditions. Initially, the

order subject of appeal must determine the action with respect to the provisional remedy

and prevent a judgment in favor of the appealing party regarding the provisional remedy.

R.C. 2505.02(B)(4)(a). Secondly, an appeal following judgment must not afford a

meaningful and effective remedy to the appealing party. R.C. 2505.02(B)(4)(b).

{¶ 17} R.C. 2505.02(A)(3) defines a provisional remedy as "a proceeding ancillary

to the action, including, but not limited to, a proceeding for a preliminary injunction,

attachment, discovery of privileged matter, suppression of evidence," or prima facie

showings with respect to specified statutes. We need not decide whether an order of

possession in a replevin action is a provisional remedy because even if it is, here an appeal

following judgment on all remaining claims will afford a meaningful and effective remedy

to appellants.

{¶ 18} Though Ohio law considers a dog to be personal property, we are mindful of

the less tangible benefits of animal ownership, including companionship, that are difficult

to quantify. In some situations, deprivation of an animal's companionship for a

protracted period of time may lessen the effectiveness of an appeal following judgment.

To the extent the actual, physical possession of the dog is the linchpin of whether an

appeal following judgment on all claims would afford a meaningful and effective remedy,

No. 15AP-699 6

we note, as appellees also noted in their motion to dismiss, that appellants did not seek

declaratory judgment affirming they were the owners of Piper. Indeed, at oral argument,

counsel for appellants stated appellants were not seeking "the physical return of this dog."

(February 24, 2016 Oral Argument, 9:41:24.) Instead, appellees assert their interest in

appealing the final order of possession lies in clarifying the ownership of a dog when it is

transferred from a shelter to a rescue organization.

{¶ 19} Appellees have claims pending in the trial court, including conspiracy,

unjust enrichment, fraud, due process violation, state law violation, conversion, and

damages on the replevin claim. The day after appellants filed their notice of appeal, the

trial court scheduled a trial date for appellees' remaining claims. Because appellants are

not seeking physical possession of the dog, appellants cannot argue that an appeal at a

later date would affect any interest they may have in the dog's companionship. Appellants

will still be able to argue the merits regarding the moment ownership transferred in a

later appeal. Thus, if we delay our review of the order of possession issued in the replevin

action until after appellees' action is fully adjudicated, appellants retain the right to a

future appeal. Burt v. Harris, 10th Dist. No. 03AP-194, 2004-Ohio-756, ¶ 12.

{¶ 20} In sum, even though the trial court included the Civ.R. 54(B) language in its

final order of possession, the order is not a final appealable order under R.C. 2505.02.

IV. Disposition

{¶ 21} Based on the foregoing reasons, appellants do not appeal from a final

appealable order of the trial court, and this court lacks jurisdiction to consider appellants'

assignments of error. Accordingly, we grant appellees' motion and dismiss the appeal for

lack of jurisdiction.

Motion to dismiss granted;

appeal dismissed.

BROWN and SADLER, JJ., concur.