Slanco v. Vindicator Printing Co.

Full title: SLANCO, APPELLANT, v. VINDICATOR PRINTING COMPANY ET AL., APPELLEES

Court: Court of Appeals of Ohio

Date published: Apr 2, 1984

14 Ohio App. 3d 326 (Ohio Ct. App. 1984)

471 N.E.2d 524

Opinion

No. 3286

Decided April 2, 1984.

Appeal — Amended complaint filed without leave of court — Motion to dismiss amended complaint granted — Not appealable — R.C. 2505.02.

O.Jur 3d Appellate Review §§ 66, 67.

The order of a trial court granting a motion to dismiss an amended complaint that was filed without leave of court is an interlocutory order and is not a final order within the meaning of R.C. 2505.02 and an appeal will not lie therefrom.

APPEAL: Court of Appeals for Trumbull County.

Mr. Michael Slanco, pro se. Mr. Steven A. Bolton, for appellees.

COOK, P.J.

On January 7, 1982, appellant, Michael Slanco, filed a complaint against the Vindicator Printing Company alleging libel in an article published December 18, 1981. Vindicator Printing Company filed an answer on March 23, 1982. On April 25, 1983, appellant, without leave of court, filed an amended complaint against Vindicator Printing Company and Michael A. Braum, appellees herein, alleging libel in articles written by Braum and printed by the Vindicator Printing Company on December 23, 1980, December 18, 19, 21 and 22, 1981. Appellees, on June 16, 1983, filed a motion to dismiss the amended petition on the ground that it was not properly filed and because the matters alleged therein did not arise out of the same occurrence set forth in appellant's original complaint. On June 23, 1983, appellee Vindicator Printing Company filed a motion for summary judgment as to the original complaint. The trial court, on June 24, 1983, without stating a reason, granted appellees' motion to dismiss the amended complaint.

Appellant has appealed the judgment of the trial court dismissing his amended complaint.

The instant appeal must be dismissed for want of a final appealable order.

R.C. 2505.02, in pertinent part, provides:

"An order affecting a substantial right in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial."

The order granting appellees' motion to dismiss appellant's amended complaint because it was filed without leave of court was an interlocutory order. It did not determine the action and prevent a judgment. The case is still pending in the trial court on appellant's original complaint to which appellee Vindicator Printing Company has filed a motion for summary judgment. There can be no appeal from an interlocutory order. Kettering v. Slothower (1959), 109 Ohio App. 547 [12 O.O.2d 178].

The issue of the court's dismissal of the amended complaint can only be addressed after a final appealable order has been rendered in the court below.

Appeal dismissed for lack of a final appealable order.

Appeal dismissed.

DAHLING and HOFSTETTER, JJ., concur.

HOFSTETTER, J., retired, of the Eleventh Appellate District, was assigned to active duty under authority of Section 6(C), Article IV, Constitution.