Barker v. Bryant

[Cite as Barker v. Bryant, 2016-Ohio-7728.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
Jonathan Barker, :
:
Plaintiff-Appellant, : Case No. 16CA20
:
v. :
:
Saraquoia Bryant et al., : DECISION AND JUDGMENT ENTRY
:
Defendants-Appellees. : RELEASED: 11/04/16
:
HOOVER, J.,
{¶1} Appellant Jonathan Barker filed an appeal from a trial court entry that
dismissed his claims for failure to prosecute, awarded judgment to Appellee Saraquoia
Bryant on her counterclaims, awarded compensatory and punitive damages to Bryant,
and ordered a hearing to be held to consider Bryant’s request for attorney fees and
expenses. Appellees filed a motion to dismiss the appeal on the ground that the trial
court’s entry is not a final appealable order. Because the trial court entry is not a final
appealable order, we DISMISS this appeal.
I. Procedural History
{¶2} Appellant Barker filed a complaint against Appellees Bryant dba Cool Digs
and Trinity Garden Supply, LLC. The Appellees filed a counterclaim asserting fraud
claims and seeking compensatory and punitive damages, as well as attorney fees.
After a hearing on the claims, the trial court entered judgment in which it found that
Appellant Barker had repeatedly failed to appear for multiple hearings, failed to advise
the trial court of his whereabouts or provide the court with working telephone numbers
for telephonic pretrial hearings, and failed to contact the trial court in over a year. The
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trial court dismissed Barker’s claims with prejudice for failure to prosecute and, after
considering evidence and testimony, awarded judgment in favor of Appellee Bryant as
to the counterclaims. The trial court also awarded Bryant compensatory and punitive
damages and ordered, “[t]hat a hearing will be held to consider an award of attorney’s
fees and expenses.” The entry did not contain a Civ.R. 54(B) certification that there
was no just reason for delay.
{¶3} Barker filed an appeal and Bryant filed a motion to dismiss the appeal for
lack of a final appealable order. Barker, who is pro se, filed no response.
II. Legal Analysis
{¶4} Appellate courts “have such jurisdiction as may be provided by law to
review and affirm, modify, or reverse judgments or final orders of the courts of record
inferior to the court of appeals within the district[.]” Section 3(B)(2), Article IV, Ohio
Constitution; see also R.C. 2505.03(A). If a court's order is not final and appealable, we
have no jurisdiction to review the matter and must dismiss the appeal. Eddie v.
Saunders, 4th Dist. Gallia No. 07CA7, 2008–Ohio–4755, ¶ 11.
{¶5} Additionally, if the case involves multiple parties or multiple claims, the
court's order must meet the requirements of Civ.R. 54(B) to qualify as a final,
appealable order. Under Civ.R. 54(B), “[w]hen more than one claim for relief is
presented in an action whether as a claim, counterclaim, cross-claim, or third-party
claim, * * * or 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 only upon an express
determination that there is no just reason for delay.” Absent the mandatory language
that “there is no just reason for delay,” an order that does not dispose of all claims is
Athens App. No. 16CA20
subject to modification and is not final and appealable. Noble v. Colwell, 44 Ohio St.3d
92, 96, 540 N.E.2d 1381 (1989); see Civ.R. 54(B). The purpose of Civ.R. 54(B) is “ ‘to
make a reasonable accommodation of the policy against piecemeal appeals with the
possible injustice sometimes created by the delay of appeals[,]’ as well as to insure that
parties to such actions may know when an order or decree has become final for
purposes of appeal.” Pokorny v. Tilby Dev. Co., 52 Ohio St.2d 183, 186, 370 N.E.2d
738 (1977) (citations omitted); see also Turner v. Robinson, 4th Dist. Highland No.
15CA11, 2016-Ohio-2981, ¶ 29.
{¶6} The Supreme Court of Ohio has held that “[w]hen attorney fees are
requested in the original pleadings, an order that does not dispose of the attorney-fee
claim * * * 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, 879
N.E.2d 187, paragraph two of the syllabus. This court has consistently held that “[a]
determination of liability without a determination of damages is not a final appealable
order because damages are part of a claim for relief, rather than a separate claim in and
of themselves.” Shelton v. Eagles Foe Aerie 2232, 4th Dist. Adams No. 99CA678, 2000
WL 203857 (Feb. 15, 2000), citing Horner v. Toledo Hospital, 94 Ohio App.3d 282, 640
N.E.2d 857 (6th Dist. 1993); see also Fagan v. Boggs, 4th Dist. Washington No.
08CA45, 2009-Ohio-6601, ¶ 11-14.
{¶7} “Where a prayer for relief requests a particular type of damages and the
court fails to specifically adjudicate that aspect of the damages requested, no final
appealable order exists.” Fagan at ¶ 13. We dismiss appeals for lack of a final,
appealable order when a trial court specifically 1) raises the attorney fee issue and
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defers its adjudication, or 2) awards attorney fees and defers the determination of the
amount of fees. Jones v. McAlarney Pools, Spas & Billiards, Inc., 4th Dist. Washington
No. 07CA34, 2008-Ohio-1365, ¶ 10; Robinette v. Bryant, 4th Dist. Lawrence No.
16CA21, 2016-Ohio-5956, ¶ 18.
{¶8} Here, the trial court’s entry specifically raises the attorney fee issues and
defers its adjudication. Therefore, the entry is not a final appealable order.
III. Conclusion
{¶9} The trial court’s entry does not constitute a final, appealable order. We
lack jurisdiction to consider the matter. Accordingly, we hereby dismiss this appeal.
{¶10} The clerk shall serve a copy of this order on all counsel of record and
unrepresented parties at their last known addresses by ordinary mail.
{¶11} APPEAL DISMISSED. COSTS TO APPELLANT. IT IS SO ORDERED.
Abele, J. and McFarland, J.: Concur.
FOR THE COURT
_____________________________
Marie Hoover
Judge