Thomas v. Roscoe , 2022 Ohio 264 ( 2022 )

[Cite as Thomas v. Roscoe, 2022-Ohio-264.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
LEONARD W. THOMAS, CASE NO. 2021-T-0051
Plaintiff-Appellant,
Civil Appeal from the
-v- Court of Common Pleas
CHELSIE A. ROSCOE, et al.,
Trial Court No. 2020 CV 00101
Defendant-Appellee.
MEMORANDUM
OPINION
Decided: January 31, 2022
Judgment: Appeal dismissed
Benjamin P. Pfouts, 3200 West Market Street, Suite 106, Akron, OH 44333 (For Plaintiff-
Appellant).
Richard C.O. Rezie and Rachel L. Coles, Gallagher Sharp, LLP, 1215 Superior Avenue,
7th Floor, Cleveland, OH 44114 (For Defendant-Appellee).
MATT LYNCH, J.
{¶1} Appellant, Leonard W. Thomas, appeals from an entry of the Trumbull
County Court of Common Pleas. Because the trial court’s judgment entry is not a final
appealable order for the reasons that follow, we hereby dismiss this appeal.
{¶2} Appellant filed a complaint against appellee, Chelsie A. Roscoe, and Safe
Auto Mutual Insurance Company. Appellant filed a motion for default judgment against
appellee, which was granted. Appellant voluntarily dismissed Safe Auto and later filed a
supplemental complaint against Liberty Mutual Insurance Company. Liberty Mutual
answered the complaint and filed a counterclaim. Appellee filed a motion to vacate default
judgment, which the trial court granted on October 29, 2021. That entry did not include
“there is no just reason for delay” language pursuant to Civ.R. 54(B). This appeal ensued.
{¶3} Initially, we must determine if there is a final order since this court may
entertain only those appeals from final judgments. Noble v. Colwell, 44 Ohio St.3d 92,
96 (1989). According to Section 3(B)(2), Article IV of the Ohio Constitution, a trial court’s
judgment can only be immediately reviewed by an appellate court if it constitutes a “final
order” in the action. Germ v. Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶
3. If it is not final, then an appellate court does not have jurisdiction to review the matter,
and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d
17, 20 (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.
{¶4} Pursuant to R.C. 2505.02(B), there are seven categories of a “final order,”
and if the judgment of the trial court satisfies any of them, it will be deemed a “final order”
and can be immediately appealed and reviewed by a court of appeals.
{¶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.
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{¶6} Pursuant to R.C. 2505.02(B)(3), a final order is one that, among other
things, vacates or sets aside a judgment. The granting of Civ.R. 60(B) motion for relief
from judgment which vacates a default judgment is a final order. GTE Automatic Elec.
Co. v. ARC Industries, Inc., 47 Ohio St.2d 146, paragraph one of the syllabus (1976).
{¶7} “However, where the underlying default judgment leaves the issue of
damages undetermined, an order vacating that judgment is not a final order.” Arrow
Machine Co., Ltd. v. Rapid Rigging, Inc., 11th Dist. Lake No. 2007-L-114, 2008-Ohio-526,
¶ 12. Here, although the magistrate issued an entry ruling on damages, it was not
adopted by the judge and there was no final entry of the court including both the finding
of default and the damages. It follows, then, that the entry vacating the default judgment
was also not a final order. This conclusion is consistent with the principle, recognized by
the Supreme Court of Ohio, that in general, “orders determining liability in the plaintiffs’
or relators’ favor and deferring the issue of damages are not final appealable orders under
R.C. 2505.02 because they do not determine the action or prevent a judgment." State ex
rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 546 (1997).
{¶8} Further, there are claims still pending between the parties, and the October
29, 2021 entry on appeal contained no Civ.R. 54(B) language. Thus, no final order
currently exists, and this court is without jurisdiction to hear this appeal.
{¶9} Appeal dismissed.
CYNTHIA WESTCOTT RICE, J.,
JOHN J. EKLUND, J.,
concur.
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