Hoenigman v. Ruiz , 2021 Ohio 2029 ( 2021 )

[Cite as Hoenigman v. Ruiz, 2021-Ohio-2029.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
PATRICIA J. HOENIGMAN, ET AL., :
Plaintiffs-Appellants, :
No. 109888
v. :
WILMARIE RUIZ, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: June 17, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-914146
Appearances:
Connick Law L.L.C., and Thomas J. Connick, for
appellants.
Richard A. Di Lisi and Karen A. Perez, for appellee.
MARY J. BOYLE, A.J.:
Plaintiffs-appellants, Patricia and Eric Hoenigman, appeal the trial
court’s judgment granting defendant-appellee, Wilmarie Ruiz, partial summary
judgment on the issues of punitive damages and attorney fees. They raise one
assignment of error for our review:
The trial court erred in granting defendant-appellee’s motion for
summary judgment on the issue of punitive damages and attorney’s
fees.
After reviewing the parties’ arguments regarding our jurisdiction over
this appeal, we find that the trial court’s judgment was not a final, appealable order,
and we, therefore, dismiss this appeal for lack of appellate jurisdiction.
I. Procedural History and Factual Background
In April 2019, appellants filed a complaint against appellee for
damages arising from a motor vehicle collision. Appellants alleged that on June 17,
2017, both Patricia Hoenigman and appellee were driving eastbound on Interstate
90 when appellee’s vehicle struck Patricia’s, injuring Patricia and damaging her
vehicle. Appellants claimed that at the time of the accident, appellee “was drag
racing at a recklessly high rate of speed.” The complaint sets forth two counts:
negligence and loss of consortium. In their prayer for relief, appellants sought
compensatory damages, punitive damages, attorney fees, pre- and post-judgment
interest, and court costs.
In May 2019, appellee filed a motion to bifurcate the case into an
initial phase involving liability and compensatory damages and, if necessary, a
second phase to determine punitive damages. The trial court granted the unopposed
motion.
In January 2020, appellee filed a motion for partial summary
judgment “on the issue of punitive damages and attorney fees.” She argued that
appellants had no evidence that she had been “drag racing” or that she acted with
malice or bad faith. Appellants filed an opposition in which they attached an
affidavit of Kristen McDevitt, an eyewitness to the accident. McDevitt averred that
she saw a car drive past her to her left at “a very high rate of speed,” followed by
appellee’s vehicle “also traveling at a very high rate of speed.” The affidavit states
that McDevitt told the police that she “thought the two cars were racing.” Appellants
argued that this affidavit was sufficient evidence to support punitive damages
because it showed that appellee acted with “wanton or reckless disregard of the legal
rights of others.”
After full briefing, on July 16, 2020, the trial court granted appellee’s
motion for partial summary judgment. The trial court found that “the facts
presented support proceeding on a claim of negligence, but do not establish the
requisite degree of malice necessary to maintain a claim for punitive damages.” The
judgment entry states that “[appellants’] claims for punitive damages and attorney
fees are hereby dismissed with prejudice. Partial. There is no just reason for delay.”
It is from this judgment that appellants timely appeal.
II. Final Order
Before we can reach the merits of appellants’ arguments, we must
address the threshold issue of jurisdiction. Appellants claim that the trial court’s
judgment is appealable at this stage of the proceedings because the trial court
dismissed their “claim” for punitive damages and attorney fees specifically “with
prejudice.” They contend that even though the order is interlocutory, the trial court
intended its order to be immediately appealable because it included the Civ.R. 54(B)
certification of “no just reason for delay.” They further maintain that they are
entitled to appeal the trial court’s judgment now because the order prevents them
from presenting evidence of recklessness and malice to the same jury that will
determine the issue of compensatory damages.
The jurisdiction of a court of appeals is constitutionally limited to the
review of “final” orders. See Section 3(B)(2), Article IV, Ohio Constitution;
R.C. 2505.02(B). To be a final, appealable order, the order must meet the
requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B). Madfan, Inc. v.
Makris, 8th Dist. Cuyahoga No. 102179, 2015-Ohio-1316, ¶ 6, citing Chef Italiano
Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989).
Under R.C. 2505.02(B)(1), an order is final if it “affects a substantial
right in an action that in effect determines the action and prevents a judgment.” To
determine the action and prevent a judgment, the order “‘must dispose of the whole
merits of the cause or some separate and distinct branch thereof and leave nothing
for the determination of the court.’” Madfan at ¶ 6, quoting Hamilton Cty. Bd. of
Mental Retardation & Dev. Disabilities v. Professionals Guild of Ohio, 46 Ohio
St.3d 147, 153, 545 N.E.2d 1260 (1989).
An order that grants partial summary judgment on the issues of
punitive damages and attorney fees but leaves the underlying claim pending is not a
final order under R.C. 2505.02(B)(1) because it does not “dispose of the whole
merits” of a claim. In Heffernan v. Cent. Natl. Bank, 8th Dist. Cuyahoga No. 52250,
1987 Ohio App. LEXIS 7478, 1 (June 11, 1987), this court addressed an order that
resolved a motion for partial summary judgment on the issues of punitive damages
and attorney fees and found no just reason for delay. We explained that the
judgment merely limited the kinds of damages that could be awarded at trial and
did not fully adjudicate the plaintiff’s claim. Id. at 2-3. We found that we lacked
jurisdiction over the appeal, holding that “an order striking punitive damages and
attorney fees allegations while leaving the issue of actual damages pending is not an
order which ‘determines the action and prevents a judgment.’” Id. at ¶ 3, quoting
R.C. 2505.02(B). Instead, such an order is interlocutory because it is “subject to
revision by the trial court at any time prior to the entering of a final judgment in the
case.” Marc Glassman, Inc. v. Fagan, 8th Dist. Cuyahoga No. 87164, 2006-Ohio-
5577, ¶ 11. After the trial court enters a final judgment in the case, the interlocutory
orders merge into the final judgment and only then become appealable. Id.
Our holding in Heffernan is consistent with Ohio case law that an
order resolving punitive damages but not the underlying claim is not a final
judgment that can be immediately appealed. See Hitchings v. Weese, 77 Ohio St.3d
390, 391-392, 674 N.E.2d 688 (1997) (trial court’s ruling on punitive damages was
not a final order because the underlying claim remained pending); Norvell v.
Cuyahoga Cty. Hosp., 11 Ohio App.3d 70, 70, 463 N.E.2d 111 (8th Dist.1983) (“An
order which strikes some damage allegations from the plaintiff’s pleading, while
permitting consideration of other claimed damages on the same cause of action, is
not appealable.”); Worthington v. Wells Fargo Bank Minn., NA, 5th Dist. Richland
No. 10 CA 40, 2010-Ohio-4541, ¶ 29, quoting Aamco Transmissions v. Hatcher, 5th
Dist. Stark No. CA-7660, 1989 Ohio App. LEXIS 2386, 4 (June 19, 1989) (“[A]n
order on ‘summary judgment dismissing the punitive damages prayer for relief
while leaving the compensatory damage[s] claim extant is not a final appealable
order.’”); Horner v. Toledo Hosp., 94 Ohio App.3d 282, 288, 640 N.E.2d 857 (6th
Dist.1993) (plaintiff asserted one claim with a demand for both punitive and
compensatory damages, and “the prayer for punitive damages is not a separate claim
in itself but rather an issue in the overall claim for damages”).
Here, the trial court’s judgment granting partial summary judgment
on the issues of punitive damages and attorney fees did not fully resolve any of
appellants’ claims. Appellants asserted two claims (negligence and loss of
consortium), and they demanded punitive damages and attorney fees in their prayer
for relief. Although the trial court’s judgment resolved the issues of punitive
damages and attorney fees, the issue of compensatory damages for both claims
remains. Despite the trial court’s language that it “dismissed with prejudice” the
“claims for punitive damages and attorney fees,” the issues of punitive damages and
attorney fees were not independent claims. The trial court’s judgment limited the
damages that appellants can receive if they succeed at trial, but it did not fully
resolve either the claim for negligence or the claim for loss of consortium. Ohio case
law is clear that such an order is not final under R.C. 2505.02(B)(1) and is not
immediately appealable. Heffernan at 3; Hitchings at 391-392; Norvell at
paragraph one of the syllabus; Horner at 288.
Appellants’ argument that the trial court intended its order to be
immediately appealable lacks merit. It is well established that a trial court’s finding
of “no just reason for delay” cannot “transform an order that was not final for
purposes of R.C. 2505.02 into a final appealable order for Civ.R. 54(B) purposes.”
Hitchings at 391. Pursuant to Civ.R. 54(B), “[i]f a court enters final judgment as to
some but not all of the claims and/or parties, the judgment is a final appealable
order only upon the express determination that there is no just reason for delay.”
Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 22, 540 N.E.2d 266 (1989).
But because the trial court’s judgment did not fully adjudicate any of appellants’
claims, Civ.R. 54(B) does not apply here and does not render the judgment either
final or immediately appealable. See Norvell at 71 (“An order which fails to conclude
an entire cause of action is nonfinal and nonappealable, despite the court’s
certification in Civ.R. 54(B) language.”); White v. Emmons, 4th Dist. Scioto No.
10CA3340, 2011-Ohio-1745, ¶ 9 (Civ.R. 54(B) certification of “no just reason for
delay” did not cure defect that the trial court’s judgment did not fully resolve any
claim); Painter and Pollis, Ohio Appellate Practice, Section 2:9 (2019) (“Rule 54(B)
language does not apply, for example, when a single claim has not been fully
resolved, such as when the trial court has resolved liability but not damages or when
the trial court has not adjudicated all the forms of requested relief[.]”).
Appellants’ argument that the trial court’s order is final because it
used the language “with prejudice” is also misplaced. We recognize that “[a]
dismissal with prejudice in a civil case affects the substantial right of the plaintiff to
seek redress for injury in the courts.” Sunkin v. Collision Pro, Inc., 174 Ohio App.3d
56, 63, 2007-Ohio-6046, 800 N.E.2d 947 (9th Dist.). However, as previously
discussed, the issues of punitive damages and attorney fees were not independent
claims that were capable of being dismissed with prejudice. The judgment is an
interlocutory order that the trial court can revise at any time before entering a final
judgment in the case. Marc Glassman, 8th Dist. Cuyahoga No. 87164, 2006-Ohio-
5577, at ¶ 11.
Because the trial court’s judgment is not a final order that can be
appealed at this time, we have no jurisdiction over this appeal. We therefore cannot
reach the merits of appellants’ arguments about whether McDevitt’s affidavit was
self-serving and whether it created a genuine issue of material fact.
Appeal dismissed.
It is ordered that appellee recover from appellants the costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
ANITA LASTER MAYS, J., and
MICHELLE J. SHEEHAN, J., CONCUR