Viers v. Kubach , 2021 Ohio 1135 ( 2021 )

[Cite as Viers v. Kubach, 2021-Ohio-1135.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
JANET A. VIERS, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2021-L-015
- vs - :
EVELYN EVANS KUBACH, :
INDIVIDUALLY, AND AS TRUSTEE
UNDER THE J. LEONARD EVANS TRUST :
AGREEMENT DATED 06/16/1958, et al.,
:
Defendant-Appellant.
Civil Appeal from the Lake County Court of Common Pleas, Probate Division, Case No.
2017 CV 1038.
Judgment: Appeal dismissed.
John P. Thomas, Schraff Thomas Law, LLC, 2802 S.O.M. Center Road, Suite 200,
Willoughby Hills, OH 44094 (For Plaintiff-Appellee).
Michael C. Cohan, Roy A. Krall, and Spencer E. Krebs, Cavitch, Familo & Durkin, 1300
East Ninth Street, 20th Floor, Cleveland, OH 44114 (For Defendant-Appellant).
MARY JANE TRAPP, P.J.
{¶1} Appellant, Evelyn Evans Kubach, individually, and as trustee under the J.
Leonard Evans Trust Agreement dated 06/16/1958, appeals from a December 31, 2020
entry of the Lake County Court of Common Pleas, Probate Division. Because the probate
court’s judgment entry is not a final appealable order for the reasons that follow, we
hereby dismiss this appeal.
{¶2} Appellee, Janet A. Viers, filed a complaint alleging several claims for relief,
including a claim for attorney’s fees and costs, against Kubach and several other
defendants. After a bench trial, in an entry dated December 31, 2020, the trial court
issued judgment in favor of Viers on four counts and judgment in favor of Kubach on four
counts, and deferred the issue of Viers’s attorney’s fees and expenses to a later date.
The entry did not include “there is no just reason for delay” language pursuant to Civ.R.
54(B). This appeal ensued.
{¶3} 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.
{¶4} 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.
{¶5} Civ.R. 54(B) provides the following:
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
2
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.
{¶6} The Supreme Court of Ohio has held that “when 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, 2007-Ohio-6439, ¶
17; see also Urso v. Compact Cars, Inc., 11th Dist. Trumbull No. 2005-T-0037, 2005-
Ohio-6292, ¶ 8; Montello v. Ackerman, 11th Dist. Lake No. 2009-L-111, 2019-Ohio-6383,
¶ 7.
{¶7} Here, the claim for attorney fees is still pending in the trial court and the
December 31, 2020 entry on appeal contains no Civ.R. 54(B) language. Thus, without
the inclusion of Civ.R. 54(B) language, there is no final appealable order, and this court
is without jurisdiction to hear this appeal.
{¶8} Appeal dismissed.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.
3