Opinion
APPEAL NO. C-971066, TRIAL NO. A-9506460
February 5, 1999
McIntosh, McIntosh Knabe and Michael T. McIntosh, and Gustafson, Lewis Jones Co., L.P.A., and Donald Jones, for Plaintiff-Appellee.
White, Getgey Meyer Co., L.P.A., and Gregory A. Ruehlmann, for Defendant-Appellant/Third-Party Plaintiff.
Plaintiff-appellee Ranlom, Inc., filed a claim in the Hamilton County Municipal Court alleging that defendant-appellant Kreso J. Mikulic owed a balance of $1025 under a contract for the installation of a solarium. Mikulic filed an answer and a counterclaim, alleging breach of contract and negligence against Ranlom, Inc. The counterclaim exceeded the monetary jurisdiction of the municipal court and the case was transferred to the Hamilton County Court of Common Pleas. Mikulic subsequently filed an amended counterclaim and a third-party complaint against Patio Enclosures, Inc.
Ranlom, Inc., filed a motion for summary judgment as to Mikulic's counterclaim, which the trial court granted. The trial court added a Civ.R. 54(B) certification that there was no just reason for delay. Ranlom, Inc.'s original claim for $1025, which was disputed by Mikulic, had not been resolved by the trial court and remained pending. Mikulic appealed. Ranlom, Inc., argued in its brief and at oral argument that the granting of the Civ.R. 54(B) certification was improper in light of the active and disputed claim for $1025.
In order to determine whether an order that adjudicates fewer than all claims or rights and liabilities may be appealed immediately under Civ.R. 54(B), an appellate court must undertake a two-part inquiry. First, the appellate court must determine whether the order appealed is final as defined by R.C. 2505.02. An order is final pursuant to R.C. 2505.02 if it "affects a substantial right in an action that in effect determines the action and prevents a judgment." Second, the appellate court must review the trial court's factual determination as to whether an immediate appeal is consistent with the interests of sound judicial administration, that is, whether it leads to judicial economy. Wisintainer v. Elcen Power Strut Co. (1993), 67 Ohio St.3d 352, 354-355, 617 N.E.2d 1136, 1138. The trial court's order disposing of Mikulic's counterclaim does not satisfy either part of the Wisintainer inquiry.
With respect to the first part of the inquiry, the trial court's order disposing of Mikulic's counterclaim affects a substantial right, but it does not determine the action or prevent a judgment with respect to either Ranlom, Inc., or Mikulic as required by R.C. 2505.02. Ranlom, Inc.'s claim for $1025 under the contract is still pending. Mikulic's defense to Ranlom, Inc.'s contractual claim is based on the same issues raised in the counterclaim. Mikulic's counterclaim was based, at least in part, on an alleged breach of the same contract under which Ranlom, Inc., has asserted its claim. But the trial court's order granting summary judgment on Mikulic's counterclaim does not prevent a judgment in favor of either party on the $1025 contractual claim.
Even if we assume, arguendo, that the trial court's order meets the requirements of R.C. 2505.02, it fails under the second part of the Wisintainer inquiry. The record does not sustain the trial court's determination, necessary to a Civ.R. 54(B) certification, that an immediate appeal would "serve the interests of sound judicial administration." See Wisintainer v. Elcen Power Strut Co., supra; Mallory v. Keating (Aug. 14, 1998), Hamilton App. No. C-980160, unreported. Ranlom, Inc.'s claim and Mikulic's counterclaim arise from the same set of facts. The record reflects the interrelated nature of the parties' claims and the common factual and legal predicates for those claims. See Mallory v. Keating, supra. In fact, Mikulic's counterclaim alleged a breach of the same contract under which Ranlom, Inc.'s claim alleges that the $1025 balance is due. To allow an immediate appeal in this case would encourage piecemeal appeals and would not serve the interests of judicial economy.
The Civ.R. 54(B) certification was improvidently made. Therefore, the appeal is sua sponte dismissed.
It is further Ordered that costs be taxed in compliance with App.R. 24, that a copy of this Memorandum Decision and Judgment Entry shall constitute the mandate, and that said mandate shall be sent to the trial court for execution pursuant to App.R. 27.
Appeal dismissed.
SHANNON, J., concurs.
HILDEBRANDT, J., dissents.
RAYMOND E. SHANNON, retired, of the First Appellate District, sitting by assignment.
Because I disagree with the majority's conclusion that the Civ.R. 54(B) certification was improvidently granted, I dissent.
The trial court entered summary judgment in favor of Ranlom, Inc., on Mikulic's counterclaim. Certainly, this order affected a substantial right, Mikulic's right to sue on a contract and for misrepresentation. The order precluded a judgment for Mikulic on his counterclaim. The majority holds, however, that the trial court improvidently certified the order for appellate review.
In Wisintainer v. Elcen Power Strut Co. (1993), 67 Ohio St.3d 352, 355, 617 N.E.2d 1136, 1138-1139, the Supreme Court of Ohio set forth the relevant standard of review of a trial court's Civ.R. 54(B) certification:
In making its factual determination that the interest of sound judicial administration is best served by allowing an immediate appeal, the trial court is entitled to the same presumption of correctness that it is accorded regarding other factual findings. An appellate court should not substitute its judgment for that of the trial court where some competent and credible evidence supports the trial court's factual findings. * * * Likewise, regarding Civ.R. 54(B) certification, where the record indicates that the interests of sound judicial administration could be served by a finding of "no just reason for delay," the trial court's certification determination must stand.
The court here found that no just reason for delay of the appeal existed. I would hold that the trial court's decision is supported by competent, credible evidence. Having narrowed the triable issues by granting summary judgment on Mikulic's counterclaim, the trial court could have reasonably determined that judicial economy would be served by appellate review of the decision to grant summary judgment. The court in Wisintainer also held:
The trial court is most capable of ascertaining whether not granting a final order might result in the case being tried twice. The trial court has seen the development of the case, is familiar with much of the evidence, is most familiar with the trial court calendar, and can best determine any likely detrimental effect of piecemeal litigation. More important than the avoidance of piecemeal appeals is the avoidance of piecemeal trials. It conserves expense for the parties and clarifies liability issues for jurors when cases are tried without "empty chairs."
Wisintainer at 356, 617 N.E.2d at 1138.
If the judgment were reversed on appeal, all of the issues raised in the counterclaim could be included in a trial of the entire dispute. If this court were to uphold the entry of summary judgment, the parties would proceed to trial knowing that they were trying only those issues actually in dispute. Otherwise, if Mikulic had to wait until after the trial on the other issues to appeal the entry of summary judgment against him, this court might hold that summary judgment was improvidently granted, and the entire trial might have to be conducted again. The trial court could have reasonably determined that "the avoidance of piecemeal trials" was more important in this case than "the avoidance of piecemeal appeals." See id.
This court recently considered another case involving a Civ.R. 54(B) certification and held that "[a]n order fully disposing of a counterclaim and entered pursuant to a determination and direction under Rule 54(B) is appealable as a final decision * * *." See American Process Design v. DeBoer (Oct. 30, 1998), Hamilton App. No. C-971045, unreported, quoting 6 Moore, Federal Practice (2 Ed. 1986), 54-226 to 54-229, as cited in Noble v. Colwell (1989), 44 Ohio St.3d 92, 540 N.E.2d 1381. Therefore, I dissent from the majority's determination that Civ.R. 54(B) certification was improvidently granted. I would uphold the trial court's certification and address the merits of the appeal.
To the Clerk:
Enter upon the Journal of the Court on February 5, 1999 per order of the Court _____________________. Presiding Judge