Opinion
No. 76802 and 77623.
Decided March 22, 2001.
Civil appeal from Court of Common Pleas, Case No. CV-315703.
EDWARD J. HEBEN, JR., ESQ., JOHN C. BRICE, ESQ., Heben Associates, Cleveland, Ohio, EDWARD P. MARKOVICH, ESQ., Norton, Ohio, for plaintiffs-appellants.
PAUL W. FLOWERS, ESQ., Nabil N. Ghali: Paul W. Flowers Co., LPA, Cleveland, Ohio, W. CRAIG BASHEIN, ESQ., Bashein Bashein, Cleveland, Ohio, for defendant-appellee.
JAMES M. KELLY, III, ESQ., John Bishkin, M.D., Cleveland, Ohio, BRIAN D. SULLIVAN, ESQ., Reminger Reminger Co., LPA, Cleveland, Ohio, for defendant-appellee.
ERIN, STOTTLEMYER GOLD, ESQ., Max P. Gaugean, M.D. RICHARD A. VADNAL, ESQ., Reminger Reminger Co., LPA, Cleveland, Ohio, for defendant-appellee.
JOURNAL ENTRY AND OPINION
Appellate courts in Ohio have jurisdiction to review the final orders or judgments of inferior courts within their own district. Section 3(B)( 2), Article IV of the Ohio Constitution. It is well established that an order must be final and appealable before it can be reviewed by an appellate court. Gen. Acc. Ins. Co. v. Ins. Co. of N. America (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266. If an order is not final and appealable, then the appellate court does not possess the jurisdiction to review the matter, and the appellate court must dismiss it sua sponte. Whitaker-Merrell v. Geupel Constr. Co. (1972), 29 Ohio St.2d 184, 186, 280 N.E.2d 922.
Further, when more than one claim for relief is presented in an action, as found in this instance, 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. Civ.R. 54(B).
When, as in this case, a court renders a judgment resolving some but not all of the claims, leaving other claims unresolved, Civ.R. 54(B) applies, and the order from the trial court must comply with R.C. 2505.02 and Civ.R. 54(B) before an appellate court can review the judgment.
As there does not exist the 54(B) language in any of the trial court's journal entries, and as there still exist active claims by active plaintiffs, it is with regret that we may not address the issues presented upon appeal since we hold that this court does not have subject matter jurisdiction over this matter. This appeal does not come from a final appealable order.
Appellant's appeal is dismissed for lack of a final appealable order.
It is ordered that appellee recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
____________________ FRANK D. CELEBREZZE, JR., J.:
MICHAEL J. CORRIGAN, J., CONCURS, DIANE KARPINSKI, A.J., DISSENTS. (SEPARATE DISSENTING OPINION ATTACHED)
I respectfully dissent because there is a final appealable order in both of these consolidated appeals.
The first case was filed as a class action against four defendants, but was never certified as one. Plaintiff was granted leave to file a (second) amended complaint to list all the plaintiffs, but counsel filed it one day after leave to do so expired. The trial court, however, subsequently declined to dismiss the amended complaint. Even if plaintiffs did not properly move for summary judgment against each of the subsequently named plaintiffs, the trial court dismissed each defendant and the case, with prejudice.
Appeal No. 76802 is from the grant of summary judgment to defendants in two consolidated cases. On July 12, 1999 in Case No. CV-315703, the court dismissed (1) Biskind with prejudice, (2) Gaujean with prejudice; and (3) the case with prejudice. On July 15, 1999, the court also noted in consolidated Case No. CV-328878 (the transferred Shaker municipal case with two additional plaintiffs) that it journalized its rulings on this consolidated case in the earlier filed case and stated "case dismissed with prejudice." The trial court may (or may not) have erred in dismissing the defendants and the case, but its rulings disposed of the entire action. There is a final appealable order in Appeal No. 76802.
Appeal No. 77623 is from a series of post-judgment motions to vacate the above summary judgment orders. The motions were filed in a similar piecemeal fashion as the motions for summary judgment. This court remanded the matter to the trial court several times for rulings on these motions. The trial court ruled as follows:
(1) On September 16, 1999 "All motions have been ruled on. Case dismissed with prejudice. Case returned to the court of appeals due to final appealable order."
(2) On January 7, 2000 "All motions have been ruled on and there are no pending matters before this court. Case to be returned to court of appeals or dead files if court of appeals will not hear appeal. Final."
(3) On February 9, 2000 "All motions for relief from judgment pursuant to Civ.R.60(B), and 60(A) filed 07/23/99, 8/6/99[,] 8/10/99 and 8/11/99 are denied. No just cause for delay.
In short, two defendants were dismissed with prejudice and the case was then dismissed with prejudice. The trial court thereafter denied all the post-judgment motions. Each order concerning the dismissal with prejudice and denial of relief is final and appealable. We have jurisdiction and should address the merits of the parties' arguments.