B & M Realty, Inc. v. Ferchill , 2014 Ohio 4843 ( 2014 )

[Cite as B & M Realty, Inc. v. Ferchill, 2014-Ohio-4843.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101255
B AND M REALTY, INC.
PLAINTIFF-APPELLANT
vs.
JOHN J. FERCHILL
DEFENDANT-APPELLEE
JUDGMENT:
DISMISSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-12-785033
BEFORE: S. Gallagher, J., Celebrezze, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: October 30, 2014
ATTORNEYS FOR APPELLANT
Jeffrey M. Embleton
Brendon P. Friesen
Mansour, Gavin, Gerack & Manos
North Point Tower
1001 Lakeside Avenue, Suite 1400
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
David R. Mayo
Michael J. Meyer
Benesch, Friedlander, Coplan & Aronoff, L.L.P.
200 Public Square
Suite 2300
Cleveland, OH 44114
Ronald L. House
Benesch, Friedlander, Coplan & Aronoff, L.L.P.
41 South High Street
Suite 2600
Columbus, OH 43215
SEAN C. GALLAGHER, J.:
{¶1} B and M Realty, Inc., appeals from the judgment of the trial court granting partial
summary judgment in favor of John Ferchill on two counts of B and M Realty’s three-count
complaint. For the following reasons, we dismiss the appeal.
{¶2} In simplistic terms, B and M Realty filed a complaint advancing three claims: breach
of contract; fraud; and unjust enrichment, arising out of Ferchill’s alleged breach of a ground
lease with 1460 LP for failure to pay rent and misrepresenting the financial condition of 1460 LP,
which directly led to a disagreement regarding unpaid rent. Both parties moved for summary
judgment. The trial court granted judgment in Ferchill’s favor upon the fraud and unjust
enrichment claims, holding that those two claims essentially restated the breach of contract claim
advanced in Count 1 of the complaint. The court determined that a genuine issue of material
fact existed with regard to the breach of contract claim, but nonetheless certified the partial
summary judgment decision pursuant to Civ.R. 54(B).
{¶3} Generally speaking, Civ.R. 54(B) only applies if there are multiple parties or
multiple claims. Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64(1989). If the relief sought in the complaint is the same, then, for purposes of Civ.R. 54(B),
there is, essentially, only one claim. Id. In other words, for our Civ.R. 54(B) analysis, we must
determine if B and M Realty’s arguments were “distinct claims for relief in Civ.R. 54(B)
parlance.” Walker v. Firelands Community Hosp., 6th Dist. Erie No. E-06-023,
2006-Ohio-2930, ¶ 20; Ollick v. Rice, 16 Ohio App.3d 448, 476 N.E.2d 1062 (8th Dist.1984). If
the multiple claims in actuality state a single cause of action, then Civ.R. 54(B) is inapplicable.
{¶4} In this case, the trial court held that all three claims stated the same claim for relief,
that Ferchill allegedly breached the terms of the undisputedly valid and enforceable contract by
failing to pay the appropriate rent derived from the financial condition of 1460 LP. In essence,
as pleaded, the fraud and unjust enrichment claims were in the alternative to the breach of
contract claim should there be a determination that the contract was invalid or otherwise
unenforceable. As recognized by the trial court, neither the validity nor enforceability of the
contract was disputed. We, therefore, agree with the trial court’s assessment. All three of B
and M Realty’s causes of action are dependent on the conduct underlying the breach of contract
claim, and therefore, this case involves a single claim for breach of contract as the complaint was
pleaded. Civ.R. 54(B) is inapplicable in light of the facts of this particular case.
{¶5} Pursuant to R.C. 2505.02, there is no final appealable order. The trial court
determined that an issue of fact existed upon the breach of contract claim, and that determination
is not immediately appealable. Even orders determining liability without damages are not final
appealable orders because those orders do not determine the action or prevent a judgment.
Dalliance Real Estate v. Covert, 11th Dist. Geauga No. 2012-G-3090, 2013-Ohio-538, ¶ 5, citing
R.C. 2505.02. In this case, the trial court denied summary judgment with regard to the breach of
contract claim in its entirety. The denial of summary judgment necessarily does not determine
the action or prevent judgment, and therefore, the order is not a final appealable one.
{¶6} We dismiss the appeal for want of a final appealable order.
It is ordered that appellee recover of appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas
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.
SEAN C. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR