[Cite as Jackson v. Friedlander,
2016-Ohio-7503.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
LAURA JACKSON, : Hon. W. Scott Gwin, P.J.
ADMINISTRATRIX OF : Hon. Patricia A. Delaney, J.
THE ESTATE OF LARRY A. : Hon. Craig R. Baldwin, J.
JACKSON, DECEASED :
:
Plaintiff-Appellant : Case No. 2016CA00053
:
-vs- :
: OPINION
DR. IRA R. FRIEDLANDER, M.D.,
F.A.C.C., ET AL
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No.2014CV00718
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 24, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
CHARLES KENNEDY RICHARD MILLIGAN
BRYAN BARNARD PAUL PUSATERI
111 South Buckeye St., Ste. 270 4684 Douglas Circle N.W.
Wooster, OH 44691 Box 35459
Canton, OH 44735
Stark County, Case No. 2016CA00053 2
Gwin, P.J.
{¶1} Appellant appeals the April 7, 2014 judgment entry of the Stark County
Court of Common Pleas denying her motion to reject change of venue.
Facts & Procedural History
{¶2} In 2014, appellant Laura Jackson, administratrix of the Estate of Larry
Jackson, filed a complaint for wrongful death in Wayne County against appellees Dr. Ira
Friedlander, Ohio Physicians Professional Corporation, and Aultman Hospital. Appellant
alleged the decedent underwent a procedure at Aultman Hospital in Stark County to
implant a pacemaker and that he received negligent post-operative care. The decedent
was discharged from Aultman Hospital, traveled to his home in Wayne County, and died
of a massive pulmonary embolism.
{¶3} Appellees filed a motion to transfer venue with the Wayne County Common
Pleas Court on February 18, 2014. The Wayne County Common Pleas Court granted
the motion to transfer on March 5, 2014 and transferred the case to the Stark County
Court of Common Pleas.
{¶4} On April 2, 2014, appellant filed a motion to reject change of venue with the
Stark County Court of Common Pleas and requested the trial court return the case to
Wayne County. Appellant argued since Civil Rule 3(B)(6) states venue is proper in the
county where all or part of the claim arose, Wayne County was a proper venue because
decedent died in Wayne County and the claim of his estate for wrongful death did not
arise until his death. Appellees filed a brief in opposition to appellant’s motion. On April
7, 2014, the Stark County trial court issued a judgment entry denying appellant’s motion
to reject change of venue.
Stark County, Case No. 2016CA00053 3
{¶5} The case proceeded to trial and the trial began on February 8, 2016. On
February 16, 2016, the jury returned a verdict for appellees. The trial court entered
judgment on the verdict on February 18, 2016. Appellant filed a timely appeal. Appellees
moved to dismiss the appeal and appellant opposed the motion. Appellant assigned the
following as error:
{¶6} “I. THE LOWER COURTS ERRED AS A MATTER OF LAW BY CHANGING
VENUE FROM WAYNE COUNTY TO STARK COUNTY IN A WRONGFUL DEATH
ACTION WHERE THE DEATH OF THE DECEDENT WAS IN WAYNE COUNTY.”
I.
{¶7} In their motion to dismiss and in their appellate brief, appellees argue Civil
Rule 3(G) prohibits an attack to the final judgment in this case on the sole basis of venue.
Appellant contends Civil Rule 3(G) does not bar her appeal.
{¶8} Civil Rule 3(G) provides as follows:
The provisions of this rule relate to venue and are not jurisdictional. No
order, judgment, or decree shall be void or subject to collateral attack solely
on the ground that there was improper venue; however, nothing here shall
affect the right to appeal an error of court concerning venue.
{¶9} This Court and the Ohio Supreme Court have previously held that the denial
or granting of a motion to change venue is not a final, appealable order. Gray v. Lloyd
Ward, P.C., 5th Dist. Fairfield No. 13 CA 42, 2014-Ohio-190; State of Ohio ex rel. Edwards
v. Tompkins, 5th Dist. Muskingum No. CT2010-0035,
2011-Ohio-32; State ex rel. Lyons
v. Zaleski,
75 Ohio St.3d 623,
665 N.E.2d 212 (1996). However, the Ohio Supreme Court
has also stated that “the civil rules are not just a technicality,” the Civil Rules “are a
Stark County, Case No. 2016CA00053 4
mechanism that governs the conduct of all parties equally” and this Court “may not ignore
the plain language of a rule. LaNeve v. Atlas Recycling, Inc.,
119 Ohio St.3d 324, 2008-
Ohio-3921,
894 N.E.2d 25.
{¶10} While Civil Rule 3(G) prohibits the voiding of a judgment solely on the issue
of improper venue, the same rule preserves the right to appeal from an error of the court
regarding venue. The plain language of the rule makes clear that improper venue does
not void a valid judgment, but also that nothing in the rule affects the right to appeal an
error of court concerning venue. This dichotomy was recognized by the concurring judge
in Davis v. Bernhart, 8th Dist. Cuyahoga No. 57454, 1990 WL 180654 (Nov. 21, 1990).
The concurring judge speculates the underlying cause of the problem may be that Ohio
Civil Rule 3 is modeled after Federal Civil Rule 3 and, unlike in the federal system, a
change of venue is not a final appealable order in Ohio.
Id. Further, that a “better
approach would be to consider venue as a final appealable order so a party could obtain
a direct appeal on the issue of venue that is both meaningful and from an appellate court
of the same county.”
Id.
{¶11} In this case, appellant makes no argument challenging the judgment on the
merits. She did not file a transcript of the jury trial with her appeal and makes no claim of
errors during the jury trial. Despite the lack of challenge to the judgment other than for
venue, appellant asks this Court to reverse the judgment of the trial court and remand the
case with instructions to transfer it to the Common Pleas Court of Wayne County for
further proceedings. Thus, appellant’s appeal is not simply an attack on venue, but seeks
to set aside the judgment of the jury and would cause the final judgment by the jury and
trial court to be void.
Stark County, Case No. 2016CA00053 5
{¶12} Thus, while Civil Rule 3(G) provides a right of appeal with regards to venue,
this right of appeal is limited by the first phrase of the rule that provides no judgment shall
be void solely on the ground of improper venue. Pursuant to Civil Rule 3(G), if appellant
had asserted other errors on appeal and this Court remanded the case to the trial court
for further proceedings based upon those errors, this Court could also consider a
challenge to venue and, on remand, sustain a challenge to venue and transfer the
remanded case to the Wayne County Court of Common Pleas. Such a scenario would
not violate Civil Rule 3(G), as the final judgment of the Stark County Common Pleas Court
would not be voided solely on the issue of improper venue.
{¶13} However, that is not the case in this appeal as appellant does not appeal
anything except venue. Thus, a reversal and remand by this Court of the jury’s verdict
with instructions to transfer the case to the Wayne County Common Pleas Court would
constitute voiding the trial court’s judgment entry solely on the ground of improper venue,
in violation of Civil Rule 3(G), because there is nothing left to do upon remand except
transfer the case to Wayne County for a re-trial. Such a reversal and remand would cause
the final judgment by the Stark County jury and trial court to be void.
{¶14} The parties disagree on whether this appeal is a “collateral” attack on the
decision on venue or a “direct” appeal of decision concerning venue. We find this
categorization is not dispositive of the issue in this case. Civil Rule 3(G) prohibits a
collateral attack solely on the ground of improper venue; however, the plain language of
the rule also contains a separate clause that prohibits the voiding of a judgment solely on
the ground of improper venue. The portion of the rule prohibiting the voiding of a judgment
solely on the ground of improper venue is not limited to collateral attacks as the rule states
Stark County, Case No. 2016CA00053 6
no judgment shall be void or subject to collateral attack solely on the ground of improper
venue. Thus, even if appellant’s appeal is categorized as a direct appeal, a reversal and
remand by this Court of the jury’s verdict would constitute voiding the judgment entry
solely on the ground of improper venue in violation of Civil Rule 3(G).
{¶15} Based on the foregoing, we find Civil Rule 3(G) prohibits the instant appeal.
{¶16} In the second portion of her argument, appellant contends that since death
constitutes part of the claim of wrongful death for venue purposes, venue is proper in
Wayne County because “part of the claim for relief” arose in Wayne County where
decedent died and thus the trial court erred in denying her motion to reject change of
venue. Based upon our analysis above and our determination as to Civil Rule 3(G), we
find this portion of appellant’s argument moot.
{¶17} Appellant’s assignment of error is overruled.
Stark County, Case No. 2016CA00053 7
{¶18} The April 7, 2014 judgment entry of the Stark County Court of Common
Pleas is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur
