Scheer v. Knierim ( 2016 )

[Cite as Scheer v. Knierim, 2016-Ohio-5583.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
KARL M. SCHEER, : APPEAL NO. C-150763
TRIAL NO. A-1400256
and :
O P I N I O N.
KATHERINE J. SCHEER, :
Plaintiffs-Appellees, :
vs. :
FOY S. KNIERIM, :
Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: August 31, 2016
Michael Todd McIntosh for Plaintiffs-Appellees,
Kira Danielle Esperante and Tyler Michelle Stoner for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal from a summary judgment that determined the issue of
liability but left unresolved the amount of damages to be awarded. Because such a
decision does not constitute a “final order,” we lack jurisdiction over this appeal.
{¶2} The underlying dispute involves a sewer disposal line that runs through
the property of two neighbors. Karl and Katherine Scheer sued Foy Knierim claiming
that Knierim's sewer line runs under their property and connects to their line without
their permission. On November 25, 2015, the court entered summary judgment on
liability in favor of the Scheers and set the matter for a trial on damages. Mr. Knierim
filed a notice of appeal from that decision on December 29, 2015. On January 19, 2016,
the trial court awarded damages to the Scheers in the amount of $1,570.19 and
permanently enjoined Knierim from using the sewer disposal line.
{¶3} The Ohio Constitution limits our jurisdiction to appeals from “final
orders” of lower courts. Ohio Constitution, Article IV, Section 3(B)(2). An order is final
when it “affects a substantial right in an action that in effect determines the action and
prevents a judgment.” R.C. 2505.02(B)(1). A decision determining liability but
deferring the issue of damages is not a final order because it does not determine the
action or prevent a judgment. Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 113 Ohio
St.3d 474, 2007-Ohio-2457, 866 N.E.2d 1059, ¶ 6; R.C. 2505.02. Because the order
appealed from did not determine the action—i.e., it did not resolve the damages issue—it
was not a final order.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} The court's January 19 order was a final order. It determined the action
by deciding the issue that remained in the case—damages.1 Mr. Knierim could have
properly appealed from that order, but he did not. The only order that is the subject of
the appeal before us is the court's nonfinal November 25 order.
{¶5} It is true that under certain circumstances, a premature notice of appeal
may ultimately be effective to invoke the appellate court’s jurisdiction. App.R. 4(C)
provides a limited safe harbor: “[a] notice of appeal filed after the announcement of a
decision, order, or sentence but before entry of the judgment or order that begins the
running of the appeal time period is treated as filed immediately after the entry.” But
under the plain terms of App.R. 4(C), for the safe harbor to apply the appeal must be
filed “after announcement of a decision, order, or sentence.” Here the judge did not
“announce” any decision on damages prior to the filing of the notice of appeal. As a
consequence, App.R. 4(C) does not apply.
{¶6} Because Mr. Knierim did not appeal from a final order, we dismiss the
appeal.
{¶7} The appeal is dismissed.
Appeal dismissed.
F ISCHER , P.J., and S TAUTBERG , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
1It is questionable whether the trial court had jurisdiction to enter the January 19 order—a notice
of appeal ordinarily divests a court of jurisdiction to decide any issues except those in aid of an
appeal. State ex rel. Rock v. School Emps. Retirement Bd., 96 Ohio St. 3d 206, 2002-Ohio-3957, 772
N.E.2d 1197, ¶ 8.
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