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Dickson v. Dickson

COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
Nov 9, 2020
2020 Ohio 5238 (Ohio Ct. App. 2020)

Opinion

CASE NO. 2020-T-0043

11-09-2020

CYNTHIA DICKSON AS EXECUTRIX OF THE ESTATE OF DENNIS DICKSON, et al., Plaintiffs-Appellants, v. DARYL DICKSON, et al., Defendants, PAT O'CONNOR, et al., Defendants-Appellees.

Richard L. Goodman, Richard L. Goodman Co., LPA, 720 Youngstown-Warren Road, Suite E, Niles, OH 44446 (For Plaintiffs-Appellants). Richard G. Witkowski, Nicola, Gudbranson & Cooper, 1400 Republic Building, 25 West Prospect Avenue, Cleveland, OH 44115 (For Defendants-Appellees).


MEMORANDUM OPINION

Civil Appeal from the Court of Common Pleas, Case No. 2018 CV 01049. Judgment: Appeal dismissed. Richard L. Goodman, Richard L. Goodman Co., LPA, 720 Youngstown-Warren Road, Suite E, Niles, OH 44446 (For Plaintiffs-Appellants). Richard G. Witkowski, Nicola, Gudbranson & Cooper, 1400 Republic Building, 25 West Prospect Avenue, Cleveland, OH 44115 (For Defendants-Appellees). MARY JANE TRAPP, J.

{¶1} Appellants, Cynthia Dickson, individually and as Executrix of the Estate of Dennis Dickson, seek to appeal from a March 23, 2020 entry of the Trumbull County Court of Common Pleas granting summary judgment in favor of appellees, O'Connor, Hoso, & Loree, LLC and Pat O'Connor, on all of appellants' claims.

{¶2} Appellants initiated an action in the trial court asserting thirteen clams against appellees and several others defendants, Daryl Dickson, Lisa Dickson, John/Jane Does Nos. 1-10, D&D Landscaping & Excavating, Inc., D&D Farms, a Partnership, JP5S Farms, D&D Property Development, LLC, and D&D Energy, LLC. In its March 23, 2020 entry, the trial court did not address any of the claims against the other parties, and no Civ.R. 54(B) language was affixed to that judgment. The instant appeal ensued.

{¶3} On October 2, 2020, appellees filed a motion to dismiss the appeal for lack of a final appealable order. Appellees posit that the trial court entry did not dispose of all the claims by and against the parties and the entry did not contain Civ.R. 54(B) language. No opposition to the motion has been filed.

{¶4} We must determine if there is a final appealable order since this court may entertain only appeals from final orders. Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989). According to Section 3(B)(2), Article IV of the Ohio Constitution, this court can only immediately review a trial court judgment if it constitutes a "final order" in the action. Estate of Biddlestone, 11th Dist. Trumbull No. 2010-T-0131, 2011-Ohio-1299, ¶ 3. If an order is not final, then an appellate court has no jurisdiction to review it, and the matter 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). For a judgment to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B). See Children's Hosp. Med. Ctr. v. Tomaiko, 11th Dist. Portage No. 2011-P-0103, 2011-Ohio-6838, ¶ 3.

{¶5} Civ.R. 54(B) provides the following:

When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and * * * 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 * * * 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.

{¶6} This court has held that where there are multiple claims and/or parties involved, an order entering final judgment as to one or more but fewer than all of the claims or parties is not a final, appealable order in the absence of Civ.R. 54(B) language stating that "there is no just reason for delay[.]" Prady v. Schwartz Construction, Ltd., 11th Dist. Ashtabula No. 2019-A-0004, 2019-Ohio-1168; W. Res. Port Auth. V. Range Resources-Appalachia, L.L.C., 11th Dist. Trumbull No. 2015-T-0036, 2015-Ohio-2903;

{¶7} Here, the March 23, 2020 entry disposed of some but not all the claims and parties. Also, no Civ.R. 54(B) determination that there is not just reason for delay was made in the entry. Since the claims against other defendants are still being litigated, no final order exists at this time.

{¶8} Based upon the foregoing analysis, appellees' motion to dismiss is granted, and this appeal is dismissed for lack of a final appealable order. TIMOTHY P. CANNON, P.J., MATT LYNCH, J., concur.


Summaries of

Dickson v. Dickson

COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
Nov 9, 2020
2020 Ohio 5238 (Ohio Ct. App. 2020)
Case details for

Dickson v. Dickson

Case Details

Full title:CYNTHIA DICKSON AS EXECUTRIX OF THE ESTATE OF DENNIS DICKSON, et al.…

Court:COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO

Date published: Nov 9, 2020

Citations

2020 Ohio 5238 (Ohio Ct. App. 2020)