Bell v. Bell

[Cite as Bell v. Bell, 2016-Ohio-4601.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
ROY BELL, et al., : MEMORANDUM OPINION
Plaintiff-Appellant, :
CASE NO. 2016-P-0005
- vs - :
BRUCE BELL, et al., :
Defendants-Appellees. :
Civil Appeal from the Court of Common Pleas, Case No. 2001 CV 00862.
Judgment: Appeal dismissed.
Daniel P. Lang, 5579 Pearl Road, Suite 203, Parma, OH 44129 (For Plaintiff-
Appellant).
Brian J. Green, Shapero & Green LLC, Signature Square II, Suite 220, 25101 Chagrin
Boulevard, Cleveland, OH 44122-3485 (For Defendants-Appellees).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Roy Bell, by and through counsel of record, filed the instant
appeal from an entry from the Portage County Court of Common Pleas.
{¶2} A review of the trial court docket reveals that this case was originally filed
in 2001. In 2008, appellees, Bruce Bell and Kathy Bell, were granted an injunction
restraining appellant from interfering with the flow of natural gas to their residence. On
December 4, 2014, appellees filed a motion to show cause and for sanctions for
appellant’s continued and willful violations of the court’s prior orders. After a hearing,
the trial court issued a judgment entry on June 18, 2015, in which it found that appellant
and/or his agents violated an order of the court by interfering with the flow of gas to the
home of appellees. The trial court ordered appellant to pay the cost of replacement and
installation as well as appellees’ reasonable attorney fees, but the trial court did not
include a dollar amount of attorney fees in its entry. On July 17, 2015, appellant filed an
appeal from that entry, 11th Dist. Portage No. 2015-P-0054. This court initially
remanded this case to rule on the Civ.R. 60(B) motion that was filed by appellant in the
trial court on October 9, 2015. Pursuant to our remand, the trial court issued an entry
on December 17, 2015, and denied appellant’s Civ.R. 60(B) motion. On January 14,
2016, appellant filed the instant appeal from that entry. Subsequently, this court
dismissed Bell v. Bell, 11th Dist. Portage No. 2015-P-0054, 2016-Ohio-1016, due to
lack of a final appealable order.
{¶3} Initially, we must determine whether there is a final appealable order in
this matter since this court may entertain only those appeals from final judgments or
orders. Noble v. Colwell, 44 Ohio St.3d 92, 96 (1989). According to Section 3(B)(2),
Article IV of the Ohio Constitution, a judgment of a trial court can be immediately
reviewed by an appellate court only if it constitutes a “final order” in the action. Germ v.
Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶ 3. If a lower court’s order 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.
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{¶4} Generally, a decision denying a motion for relief from judgment under
Civ.R. 60(B) is a final order. However, this rule presumes that the underlying order
which has been challenged by the movant’s Civ.R. 60(B) motion is, itself, a final
appealable order. Jack Maxton Chevrolet, Inc. v. Hanbali, 10th Dist. No. 15AP-816,
2016-Ohio-1244, at ¶ 7.
{¶5} In this case, although the October 9, 2015 motion was filed as a Civ.R.
60(B) motion, it was not a Civ.R. 60(B) at all since Civ.R. 60(B) motions are only
available to vacate final orders. Therefore, the October 9, 2015 motion did not create a
right of appeal because the order to which the motion was directed was not a final
appealable order. The trial court’s underlying order of June 18, 2015, did not include a
dollar amount of attorney fees in its entry, and we dismissed that appeal due to lack of a
final appealable order. See Bell, supra, at ¶ 7. Thus, the subsequent order of
December 17, 2015, which is the entry that is the subject of this appeal, denying
appellant’s motion for relief from judgment, is also not a final appealable order.
{¶6} For the foregoing reasons, this appeal is dismissed, sua sponte, due to
lack of a final appealable order.
DIANE V. GRENDELL, J.,
TIMOTHY P. CANNON, J.,
concur.
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