Summary
applying Tokai to support the trial court's correct conclusion that the acceleration clause was invalid as a matter of law on the grounds that such clauses are valid only when they provide that the lessor must mitigate his damages
Summary of this case from Chapel Real Estate Co. v. BurrisOpinion
Accelerated Case No. 2000-L-053.
May 11, 2001.
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas Case No. 98 CV 001748.
ATTY. PAUL M. GREENBERGER, 24500 Chagrin Boulevard, Suite 101, Beachwood, OH 44122, (For Plaintiff-Appellant).
ATTY. CHARLES A. NEMER, 2000 Standard Building, 1370 Ontario Street, Cleveland, OH 44113, (For Defendant-Appellee).
HON. WILLIAM M. O'NEILL, P.J., HON. JUDITH A. CHRISTLEY, J., HON. DIANE V. GRENDELL, J.
OPINION
In this accelerated calendar case, appellant, Stuart J. Graines, Trustee, appeals from the judgment of the Lake County Court of Common Pleas entered on March 23, 2000. The trial court granted appellee's, Y.D.C. Corporation, Inc. ("Y.D.C."), motion for partial summary judgment. Appellant's lawsuit consisted of two claims. The trial court's judgment only disposed of the second claim. Although the first claim was not addressed, the trial court indicated the judgment entry was a final appealable order pursuant to Civ.R. 54(B), by expressly finding "there is no just cause for delay." The following facts are relevant to a determination of this appeal.
Y.D.C. became a commercial tenant of appellant in 1984. In May of 1997, Y.D.C. exercised its option to extend its lease for a three-year term, beginning on July 1, 1997, and ending on June 30, 2000. Appellant's complaint alleges that in October of 1998, Y.D.C. defaulted on its rent payments. By the end of November of 1998, Y.D.C. had vacated the premises and appellant was in possession. Appellant filed suit on December 14, 1998. In the first claim, appellant sought the payment of rent and various fees and costs for the months of October, November, and December of 1998, (approximately $5,000). In the second claim, appellant sought compensation according to the terms of Section 38(D) of the parties' lease agreement. This section contained an acceleration clause. Appellant sought payment of rent under this clause through June 30, 2000, the balance of the lease term (approximately $30,000). Aside from the second claim, which sought payment of the rent for the entire balance of the lease term, appellant did not file a claim seeking payment of any rent due for the period between January of 1999, and the date upon which it procured a new rent-paying tenant.
The acceleration clause did not require appellant to mitigate his damages. Y.D.C. filed a motion for partial summary judgment, asking the court to find the acceleration clause invalid as a matter of law on the grounds that such clauses are only valid when they provide that the lessor must mitigate (lessor's) damages. On the authority of this court's holding in Tokai Financial Services, Inc. v. Mathews, Gallovic, Granito Co. (Nov. 24, 1995), Lake App. No. 95-L-098, unreported, the trial court found the acceleration clause was invalid. The trial court granted Y.D.C.'s motion for summary judgment. The trial court included in its judgment entry the Civ.R. 54(B) language "there is no just cause for delay," apparently creating a final appealable order. From this judgment, appellant timely filed notice of appeal.
As an entry-level question, we must address the issue of whether this judgment constitutes a final appealable order. The phrase "no just reason for delay" is not a mystical incantation that transforms a non-final order into a final appealable order. Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86. The Supreme Court of Ohio has set forth a two pronged analysis appellate courts should apply in determining whether an order constitutes a final appealable order under Civ.R. 54. See Wisintainer v. Elcen Power Strut Co. (1993), 67 Ohio St.3d 352. In short, first a court must determine if the order constitutes a final order as defined by R.C. 2505.02, and secondly, whether the trial court's designation that "there is no just cause for delay" was appropriate. Id. at 354. With respect to the second prong, the Supreme Court held that, "[f]or purposes of Civ.R. 54(B) certification, in deciding that there is no just reason for delay, the trial judge makes what is essentially a factual determination — whether an interlocutory appeal is consistent with the interests of sound judicial administration." Id. at paragraph one of syllabus. Secondly, the court directed that, "[w]here 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." (Emphasis added). Id. at paragraph two of syllabus. The Supreme Court indicated that appellate review of these determinations should be deferential, stating:
"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. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77." (Parallel citations omitted.) Id. at 355.
The Supreme Court indicated that the avoidance of piecemeal trials is more important than the avoidance of piecemeal appeals. Id. Applying this standard to the present case, although we may have reached a different conclusion, we defer to the finding of the trial court.
However, the order appealed from is not a "final" order as defined by R.C. 2505.02. In applying R.C. 2505.02, the Supreme Court indicated that "[t]he reviewing court should concentrate on answering that predominantly legal question of whether the order sought to be appealed affects a substantial right and whether it in effect determines an action and prevents a judgment." Wisintainer, at 354. In the instant matter, this is exactly the appropriate question, because, if it is a final order, it is so under R.C. 2505.02(B)(1).
In determining whether the order determines an action and prevents a judgment, the question is whether, in light of the order, the plaintiff may still obtain a judgment in the matter against the defendant. Id. at 355. While the trial court's judgment voided appellant's acceleration clause, it did not in fact prevent a judgment in favor of appellant under other valid remedies. Thus, the trial court's judgment entry of March 23, 2000, was not a final appealable order under R.C. 2505.02. Therefore, the appeal is dismissed as this court is without jurisdiction to consider the matter at this time.
_____________________________________ PRESIDING JUDGE WILLIAM M. O'NEILL
CHRISTLEY, J., concurs, GRENDELL, J., dissents with Dissenting Opinion.
I respectfully dissent. The majority correctly states that, "[t]he phrase `no just reason for delay' is not a mystical incantation that transforms a non-final order into a final appealable order." Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86.
The majority also correctly cites the two-pronged analysis for determining whether an order constitutes a final order under Civ.R. 54. However, in the present case, the second prong of that analysis is applied with too broad of a brush. Therefore, I must disagree with the majority's conclusion that the March 23, 2000 judgment entry was not a final appealable order as to the specific claim currently before this court. From that decision, I dissent.
Strictly applying a "can the plaintiff still obtain a judgment in the matter against the defendant" test to partial summary judgment cases would effectively eliminate the appeal of partial summary judgment rulings. When a trial court rules on all of the elements of a cause of action, an immediate appeal of such ruling is warranted when the trial court properly makes a "no just cause for delay" determination. However, when a trial court rules on only some of the elements of a cause of action ( e.g., the issue of duty or causality in a tort action), an immediate appeal is not proper, even if the trial court rules that there is "no just cause for delay" under Civ.R. 54(B). In every partial summary judgment case where such partial judgment is rendered for the defendant, the plaintiff may still obtain a trial court judgment against the defendant on any separate remaining causes of action. Civ.R. 54(B) provides the trial court with the discretionary power to submit such partial rulings to immediate appeal or to delay such appeal until all of the causes of action have been adjudicated by the trial court. However, if a full final judgment as to all causes of action in a case is a prerequisite for an appeal under Civ.R. 54(B), there would be no need for inclusion of the mandatory "no just cause for delay" finding by the trial court because the trial court ruling on all causes of action would always be a final, conclusive and appealable trial court decision. Therefore, the test used by the majority is incongruous with the purpose for the "no just cause for delay" provision in Civ.R. 54(B) and would effectively render that civil rule unnecessary.
In a multiple cause of action or claim case, such as this action, a trial court's ruling that affects a substantial right and completely determines a distinct cause of action within the case and presents a final judgment on that cause of action is precisely the situation that gives rise to a trial court's use of the "no just cause for delay" certification under Civ.R. 54(B). The trial court's ruling presents a final judgment in favor of appellant's second claim in appellant's complaint concerning appellant's separate claim for enforcement of the acceleration clause in the lease. As such, the trial court fully adjudicated that cause of action and that order is a final appealable order under R.C. 2505.02 as to appellant's second claim. Wisinratner v. Elcen Power Strut Co. (1993), 67 Ohio St.3d 352, 355. Since the trial court's ruling is consistent with this court's holding in Tokai Financial Services, Inc. v. Mathews, Gallovic, Granito Co. (Nov. 24, 1995), Lake App. No. 95-L-098, unreported, appellant's assignments of error as to that ruling are without merit. Appellant's separate first cause of action for certain monthly rents remains for ruling by the trial court. I would affirm the trial court's ruling and remand the case to the trial court for adjudication of the remaining cause of action. Delaying such an appellate decision for another day does not facilitate judicial economy or advance the rights or interests of the parties in this action.
______________________________________ JUDGE DIANE V. GRENDELL