Reed Elsevier, Inc. v. Nunn , 2015 Ohio 3914 ( 2015 )

[Cite as Reed Elsevier, Inc. v. Nunn, 2015-Ohio-3914.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
REED ELSEVIER, INC. :
:
Plaintiff-Appellant : C.A. CASE NO. 26625
:
v. : T.C. NO. 14-CV-6370
:
MARK L. NUNN dba : (Civil appeal from
LAW OFFICE OF MARK NUNN : Common Pleas Court)
:
Defendant-Appellee :
...........
OPINION
Rendered on the __25th__ day of ___September____, 2015.
...........
MICHAEL W. SANDNER, Atty, Reg. No. 0064107, Pickrel, Schaeffer & Elbeling Co.,
2700 Kettering Tower, Dayton, Ohio 45423
Attorney for Plaintiff-Appellant
MARK L. NUNN, 913 Fifth Street, Onawa, Iowa 51040
Defendant-Appellee, pro se
.............
DONOVAN, J.
{¶ 1} Plaintiff-appellant Reed Elsevier, Inc. (hereinafter “Reed”) appeals a
judgment of the Montgomery County Court of Common Pleas, Civil Division, granting
default judgment against defendant-appellee Mark L. Nunn, d/b/a Law Office of Mark
Nunn (hereinafter “Nunn”), on its claims for breach of contract and declaratory judgment.
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Reed filed a timely notice of appeal with this Court on March 20, 2015.
{¶ 2} On February 13, 2012, the parties entered into a written contract whereby
Nunn was to compensate Reed at an agreed to rate for the use of its online research
services operating out of Montgomery County, Ohio. Per the agreement, Reed provided
its online services to Nunn. Nunn, however, failed to pay the amount owed pursuant to
the contract.
{¶ 3} On November 12, 2014, Reed filed a complaint against Nunn for breach of
contract and declaratory judgment. In its complaint, Reed requested damages of
$9,389.87 with post-judgment interest, as well as costs and attorney fees. After
receiving service of the complaint on January 9, 2015, Nunn failed to file an answer. On
February 10, 2015, Reed filed a motion for default judgment against Nunn. Nunn did not
file a response to Reed’s motion. Subsequently, the trial court granted Reed’s motion
for default judgment and awarded damages in the amount of $9,389.87, but failed to
award Reed a specific monetary amount of attorney fees and costs.
{¶ 4} We note that Nunn did not file an appeal of the trial court’s grant of default
judgment. Reed, however, filed the instant appeal of the trial court’s judgment,
challenging its failure to award a specific amount attorney fees and court costs.
{¶ 5} Reed’s sole assignment of error is as follows:
{¶ 6} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO
AWARD REASONABLE ATTORNEY’S FEES, COURT COSTS, AND COLLECTION
COSTS TO PLAINTIFF-APPELLANT PURSUANT TO THE CONTRACT ENTERED
INTO BY THE PARTIES.”
{¶ 7} In its sole assignment, Reed contends that the trial court erred when it failed
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to award reasonable attorney fees and court costs when it granted default judgment
against Nunn. Specifically, Reed argues that in the event Nunn failed to pay the amount
due on the contract, it is liable “for all costs of collection incurred by [Reed], including ***
collection agency fees, reasonable attorney’s fees, and court costs.” 1
{¶ 8} Initially, we note that the trial court failed to include Civ.R. 54(B) language in
its decision granting Reed’s motion for default judgment. Accordingly, there is a lack of
a final appealable order, and we are left without jurisdiction to render a decision on the
merits in the instant case.
{¶ 9} Ohio law provides that appellate courts have jurisdiction to review the final
orders of inferior courts in their district. Section 3(B)(2), Article IV, Ohio Constitution; R.C.
2505 .02. If an order is not final and appealable, then we have no jurisdiction to review
the matter and must dismiss the appeal. Kilroy v. Peters, 2d Dist. Montgomery No. 24268,
2011–Ohio–3415. “In the event that this jurisdictional issue is not raised by the parties
involved with the appeal, then the appellate court must raise it sua sponte.” Chef Italiano
Corp. v. Kent State Univ., 44 Ohio St. 3d 86, 541 N.E.2d 64 (1989), syllabus; Whitaker–
Merrell v. Geupel Co. (1972), 29 Ohio St. 2d 184, 280 N.E.2d 922. An order of a court is
a final, appealable order only if the requirements of both R.C. 2505.02 and Civ. R. 54(B),
if applicable are met. Chef Italiano Corp., 44 Ohio St. 3d at 88.
{¶ 10} Under R.C. 2505.02(B)(1), an order is final order if it “affects a substantial
right in an action that in effect determines the action and prevents the judgment.” For an
order to determine the action and prevent a judgment for the party appealing, it must
1
Reed filed its appellate brief on April 13, 2015. On June 8, 2015, we issued a show
cause order to Nunn informing him that he had fourteen days in which to file a responsive
brief. Nunn has not filed any briefing with this Court.
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dispose of the whole merits of the cause or some separate and distinct branch thereof
and leave nothing for the determination of the court. State ex rel. Downs v. Panioto, 107
Ohio St. 3d 347, 2006–Ohio–8, 839 N.E.2d 911, ¶ 20.
{¶ 11} Additionally, the rationale of Civ. R. 54(B) is “ ‘to make a reasonable
accommodation of the policy against piecemeal appeals with the possible injustice
created by the delay of appeals,’ as well as to insure that parties to such actions may
know when an order or decree has become final for purposes of appeal.” Pokorny v. Tilby
Dev. Co., 52 Ohio St. 2d 183, 186, 370 N.E.2d 738 (1977). Absent the mandatory
language “no just reason for delay,” an order that does not dispose of all claims is not
final and appealable. Noble v. Colwell, 44 Ohio St. 3d 92, 96, 540 N.E.2d 1381 (1989).
{¶ 12} In the instant case, Reed requested attorney fees and costs in their
complaint. Although the trial court awarded reasonable attorney fees and costs in its
entry granting default judgment to Reed, the entry did not contain a specific monetary
amount to be awarded. Thus, such request remains unresolved. The Supreme Court
of Ohio has held that “[w]hen attorney fees are requested in the original pleadings, an
order that does not dispose of the attorney-fee claim and does not include, pursuant to
Civ.R. 54(B), an express determination that there is no just reason for delay, is not a final,
appealable order.” Internatl. Bhd. of Electrical Workers, Local Union No. 8 v. Vaughn
Industries, L.L.C., 116 Ohio St. 3d 335, 879 N.E.2d 187, 2007-Ohio-6439, paragraph two
of syllabus. The trial court’s entry granting default judgment did not refer to Civ. R. 54(B)
and did not cite any language from the rule. Therefore, because Reed’s request for
attorney fees and costs remains unresolved, and the entry did not contain the requisite
statutory language, no final appealable order exists. Accordingly, this Court has no
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jurisdiction to consider the instant appeal.
{¶ 13} The instant appeal is dismissed.
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FROELICH, P.J. and WELBAUM, J., concur.
Copies mailed to:
Michael W. Sandner
Mark L. Nunn
Hon. Steven K. Dankof