Opinion
2022-T-0113
07-31-2023
PATRICIA A. OWEN, Plaintiff-Appellee, v. NORTHBROOK CONDOMINIUM ASSOCIATION, et al., Defendants-Appellants, ANTHONY JOHN PAYIAVLAS TRUSTEE OF THE ANTHONY JOHN PAYIAVLAS LIVING TRUST, Defendant-Appellee.
James M. Brutz, N.E., Warren, (For Plaintiff-Appellee). Michael D. Rossi, Guarnieri and Secrest, (For Defendants-Appellants). Douglas W. Ross, Daniel Daniluk, LLC, (For Defendant-Appellee).
Civil Appeal from the Court of Common Pleas Trial Court No. 2021 CV 00393
James M. Brutz, N.E., Warren, (For Plaintiff-Appellee).
Michael D. Rossi, Guarnieri and Secrest, (For Defendants-Appellants).
Douglas W. Ross, Daniel Daniluk, LLC, (For Defendant-Appellee).
MEMORANDUM OPINION
EUGENE A. LUCCI, J.
{¶1} Appellants, Northbrook Condominium Association, et al., appeal from the November 3, 2022 entry of the trial court granting summary judgment to appellee, Patricia A. Owen, and denying appellants' motion for summary judgment.
{¶2} In 2021, Owen filed a complaint against appellants and others seeking enforcement of a settlement agreement into which the parties entered in a previous litigation. In her prayer for relief, Owen requested the court order appellants and other named defendants to comply with the terms of the settlement agreement and to pay the amounts therein agreed for demolition and repairs to their condominium complex. Alternatively, Owen sought judgment imposing joint and several liability on appellants and other named defendants for $100,000.00 to preserve and protect a common wall that was the subject of the settlement agreement. Owen further sought attorney fees, costs, and such other relief as the court deemed proper.
{¶3} During the litigation, Owen and appellants filed competing motions for summary judgment. Owen maintained that she was entitled to summary judgment against appellants because appellants entered into a binding settlement agreement and failed to proceed according to its terms. Appellants maintained that Owen's complaint should be dismissed because the settlement agreement had been rescinded.
{¶4} On November 3, 2022, the trial court issued a judgment entry, concluding that no genuine issues of material fact existed. The court found that "a binding agreement existed that may be enforced" by the court. The court granted Owen's motion for summary judgment and denied appellants' motion for summary judgment. The trial court further determined that there was no just cause for delay. However, the trial court did not expressly grant Owen any of the relief that she requested in her complaint.
{¶5} Appellants noticed an appeal from the November 3, 2022 judgment entry, and this court ordered the parties to show cause as to why the appeal should not be dismissed for lack of a final, appealable order. None of the parties responded to the show cause order.
{¶6} "It is well-established that an order must be final before it can be reviewed by an appellate court. If an order is not final, then an appellate court has no jurisdiction[,]" and the appeal must be dismissed. Gen. Acc. Ins. Co., v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989); Ohio Constitution, Article IV, Section 3(B)(2) (limiting this court's jurisdiction to the review of judgments or final orders). An order may be final if a statutory provision specifically so provides, or if the order meets the definition of one of the seven categories of "final orders" set forth in R.C. 2505.02(B). Relevant to our discussion here, R.C. 2505.02(B)(1) provides: "An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it * * * affects a substantial right in an action that in effect determines the action and prevents a judgment[.]"
{¶7} "An order granting summary judgment alone, without providing any remedy, is interlocutory and not appealable." State ex rel. Fisher v. Cleveland, 8th Dist. Cuyahoga No. 82389, 2003-Ohio-2754, ¶ 8, citing Coon v. Barnes, 95 Ohio App.3d 349, 642 N.E.2d 449 (3d Dist. 1994); and Bautista v. Kolis, 142 Ohio App.3d 169, 754 N.E.2d 820 (7th Dist.2001). "Such an order does not determine the action and prevent a judgment." (Citation omitted.) Fisher at ¶ 8. "Nor is it a final order under any of the other provisions of R.C. 2505.02(B)." Fisher at ¶ 8.
{¶8} With respect to the trial court's determination that there was "no just cause for delay," Civ.R. 54(B) provides:
When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party
claim, and whether arising out of the same or separate transactions, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.(Emphasis added.)
{¶9} The inclusion of Civ.R. 54(B) language that there exists "no just reason for delay" does not affect the finality of an order. Gen. Acc. Ins. Co. at 21; Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352, 354, 617 N.E.2d 1136 (1993), citing Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989) ("No just reason for delay" "is not a mystical incantation which transforms a nonfinal order into a final appealable order.").
{¶10} Here, the November 3, 2022 order, while granting summary judgment in favor of Owen and finding that a binding agreement existed that may be enforced by the court, did not provide any remedy to Owen on her claims. Accordingly, the November 3, 2022 judgment did not terminate a claim against any party and does not constitute a final, appealable order. Therefore, we lack jurisdiction to consider the merits of the appeal.
{¶11} The appeal is dismissed.
MARY JANE TRAPP, J., ROBERT J. PATTON, J., concur.