Opinion
No. 80-1161
Decided March 25, 1981.
Summary judgment — Civ. R. 54(B) — Language requirements inapplicable, when — All claims of all parties adjudicated.
APPEAL from the Court of Appeals for Sandusky County.
On October 3, 1977, the Commercial National Bank of Tiffin, Ohio, appellee, filed a foreclosure action on the home of Kenneth and Mary Deppen, appellants. In addition to appellants, the complaint also listed, as party defendants, Russell D. Leber, Nye Inc., Goodyear Tire Rubber Co. and the Sandusky County Treasurer. Thereafter, on October 7, 1977, Beck's Suppliers, Inc., was added as a party defendant. All the defendants, with the exception of the appellants, filed either cross-claims or counterclaims, alleging valid and subsisting liens upon the real property described in the complaint.
On January 9, 1979, the trial court granted summary judgment on appellee's motion, thereby adjudicating all the claims of all the parties to the action and establishing their priorities therein. The judgment entry reads, in pertinent part, as follows:
"The record***reflects that all necessary and proper parties are before the Court, having been duly served with summons according to law.
"***
"It is therefore ORDERED that unless defendants, Kenneth A. Deppen and Mary E. Deppen, husband and wife, or someone for them pay the costs of this action, taxes, judgments and liens against the above described real estate within five (5) days of the entry of this judgment, then the equity of redemption of defendants, Kenneth A. Deppen and Mary E. Deppen, husband and wife, shall be cut off and further that an order of sale issued to the Sheriff of Sandusky County, Ohio directing him to appraise the premises described in plaintiff's complaint, and further directing the Sheriff of Sandusky County to advertise for sale as soon as possible thereafter the premises once a week for five (5) consecutive weeks as required by law, and further directing the Sheriff of Sandusky County, Ohio to sell said premises free and clear from all liens and the right to title and claim of defendants, Kenneth A. Deppen and Mary E. Deppen, husband and wife, and further that the proceeds from the sale after payment of costs and appraisal fees, taxes and assessments be paid to the plaintiff and defendants according to the priorities above established."
Thereafter, four additional parties joined this action with leave of court. Pursuant to subsequent orders of the trial court in aid of execution upon the summary judgment entry of January 9, 1979, the real estate was sold at a sheriff's sale. The court confirmed the matter by journal entry dated May 15, 1979. On June 12, 1979, appellants filed a notice of appeal. On July 11, 1980, the Court of Appeals affirmed the trial court's summary judgment order of January 9, 1979, on the ground that the appeal was not timely filed.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. John T. Barga, for appellee.
Messrs. Hanna Hanna and Mr. Drew A. Hanna, for appellants.
Appellants, in their sole proposition of law, assert, in essence, that the granting of appellee's motion for summary judgment was not a final appealable order, because the journal entry did not contain an express determination concerning the finality of judgment for the parties, to wit: The language in Civ. R. 54(B) that, "there is no just reason for delay."
We find appellants' assertion to be without merit.
Civ. R. 54(B) states, in pertinent part:
"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, 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.***" (Emphasis added.)
Civ. R. 54(B) is only applicable when the court enters final judgment "as to one or more but fewer than all of the claims or parties." The express determination language of Civ. R. 54(B) is not appropriate herein, since the granting of the summary judgment of January 9, 1979, adjudicated all the claims of all the parties to the action as of that date.
Therefore, appellants' notice of appeal of June 12, 1979, was not timely filed. Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., COOK, SWEENEY, LOCHER, HOLMES and REILLY, JJ., concur.
P. BROWN, J., concurs in the judgment only.
COOK, J., of the Eleventh Appellate District, sitting for W. BROWN, J.
REILLY, J., of the Tenth Appellate District, sitting for C. BROWN, J.