Opinion
Case No. 2003-T-0144.
December 12, 2003
Civil appeal from the Court of Common Pleas, Case No. 01 CV 1473.
Appeal dismissed.
J.W. Fodor, 269 Seneca Avenue, N.E., P.O. Box 1706, Warren, OH, 44481 (For Plaintiffs-Appellees).
David J. Hanna, Frank G. Mazgaj, and Robert L. Tucker, Hanna, Campbell Powell, LLP, 3737 Embassy Parkway, P.O. Box 5521, Akron, OH 44334 (For Defendant-Appellee, Erie Insurance Group).
William B. Benson and Mark C. Melko, Wiles, Boyle, Burkholder Bringardner Co., L.P.A., 300 Spruce Street, Floor One, Columbus, OH 43215 (For Defendant-Appellant).
MEMORANDUM OPINION
{¶ 1} On October 3, 2003, appellant, American Guarantee and Liberty Insurance, filed a notice of appeal from a September 8, 2003 judgment of the Trumbull County Court of Common Pleas. In that judgment, the trial court denied appellant's motion for summary judgment and indicated "[t]his is a final and appealable order, and there is not just cause for delay."
{¶ 2} On October 10, 2003, appellee, Erie Insurance Group, filed a motion to dismiss this appeal due to lack of a final appealable order. On October 22, 2003, appellant filed a memorandum in opposition to the motion to dismiss.
{¶ 3} It is well established that the denial of a motion for summary judgment is generally not a final appealable order. State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23. This is due to the fact that the denial does not determine the action and prevent a judgment and is, therefore, not a final order under R.C. 2505.02. Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, 90. See, also, Klein v. Portage Cty. (2000), 139 Ohio App.3d 749, 751. The denial of a motion for summary judgment is always reviewable on appeal following a subsequent final judgment.
{¶ 4} Additionally, the mere addition of Civ.R. 54(B) language, that there is no just reason for delay, does not transform what is an otherwise interlocutory order into a final appealable order. As stated by the Supreme Court of Ohio in Wisintainer v. Elcen Power Strut Co. (1993), 67 Ohio St.3d 352, at 354, "the phrase `no just reason for delay' is not a mystical incantation which transforms a nonfinal order into a final order." See, also, Graines v. Y.D.C. Corp. (May 11, 2001), 11th Dist. No. 2000-L-053, 2001 WL 501994.
{¶ 5} Based upon the foregoing analysis, appellee's motion to dismiss this appeal is hereby granted since the trial court has not yet issued a final order. Hence, this court is without jurisdiction to consider this matter.
{¶ 6} The appeal is dismissed.
Appeal dismissed.
Donald R. Ford, P.J., and Cynthia Westcott Rice, J., concur.