Molk v. Perram Elec., Inc. , 2022 Ohio 1007 ( 2022 )

[Cite as Molk v. Perram Elec., Inc., 2022-Ohio-1007.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
MARK MOLK, CASE NO. 2021-L-127
Plaintiff-Appellant,
Civil Appeal from the
-v- Court of Common Pleas
PERRAM ELECTRIC, INC.,
Trial Court No. 2021 CV 000660
Defendant,
CITY OF MENTOR, et al.,
Defendant-Appellee.
MEMORANDUM
OPINION
Decided: March 28, 2022
Judgment: Appeal dismissed
Matthew C. Rambo, Freeburg & Freeburg, LLC, 6690 Beta Drive, Suite 320, Mayfield
Village, OH 44143 (For Plaintiff-Appellant).
Joseph J. Santoro, Gallagher Sharp, LLP, 1215 Superior Avenue, 7th Floor, Cleveland,
OH 44114 (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Mark Molk, appeals from a Lake County Court of Common Pleas
entry. We hereby dismiss this appeal for the reasons that follow.
{¶2} Plaintiff-Appellant filed a complaint and petition for writ of mandamus against
defendant-appellee, the City of Mentor, and two other defendants, Perram Electric, Inc.
and Lake County. Appellee filed a motion to dismiss each claim against it pursuant to
Civ.R. 12(B)(6) as being time-barred and/or based on governmental functions for which it
is immune from liability. Appellant opposed the motion. In a November 17, 2021, the trial
court granted appellee’s motion to dismiss based on sovereign immunity pursuant to R.C.
2744.03(A) and disposed of appellant’s claims against appellee. However, the entry did
not dispose of appellant’s claims against the other defendants and did not include “there
is no just reason for delay” language. This appeal ensued.
{¶3} On December 23, 2021, appellee filed a motion to dismiss the appeal for
lack of a final appealable order. Appellant filed a brief in opposition to the motion to
dismiss on January 18, 2022.
{¶4} 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.
{¶5} 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.
{¶6} Civ.R. 54(B) provides the following:
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Case No. 2021-L-127
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.
{¶7} While R.C. 2744.02(C) grants a political subdivision an immediate right to
appeal the denial of a benefit of sovereign immunity, there is no statutory provision
granting a litigant an automatic appeal when a political subdivision is granted such
immunity. See Zoldan v. Lordstown, 11th Dist. Trumbull No. 2014-T-0002, 2014-Ohio-
3007, ¶ 9.
{¶8} Here, while the trial court granted appellee’s motion to dismiss, appellant’s
claims against the other two defendants, Perram Electric, Inc. and Lake County, are still
pending. Further, the November 17, 2021 entry on appeal does not contain any Civ.R.
54(B) language. Thus, no final order currently exists, and this court is without jurisdiction
to hear this appeal.
{¶9} Based upon the foregoing analysis, appellee’s motion to dismiss is hereby
granted, and this appeal is dismissed for lack of a final appealable order.
{¶10} Appeal dismissed.
THOMAS R. WRIGHT, P.J.,
MATT LYNCH, J.,
concur.
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