Dalliance Real Estate Inc. v. Covert

[Cite as Dalliance Real Estate Inc. v. Covert, 2013-Ohio-538.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
DALLIANCE REAL ESTATE INC., et al., : MEMORANDUM OPINION
Plaintiffs-Appellees, :
CASE NO. 2012-G-3090
- vs - :
TIMOTHY COVERT, :
Defendant-Appellant. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 08M000069.
Judgment: Appeal dismissed.
A. Pearce Leary, 401 South Street, Bldg. 4-A, Chardon, OH 44024 (For Plaintiffs-
Appellees).
John W. Shryock, John Shryock Co., L.P.A., 30601 Euclid Avenue, Wickliffe, OH
44092 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} On July 3, 2012, appellant, Timothy Covert, filed a notice of appeal from
the June 6, 2012 Judgment Entry of the Geauga County Court of Common Pleas. In
that entry, the trial court entered judgment in favor of the appellees, Dalliance Real
Estate and Margaret Lahner, on the claims raised in their Complaint, which all related to
the transfer of a portion of the appellees’ real property to Covert. The court held that the
appellees could disconnect water lines from a well to Covert’s property, that a license
agreement between the parties was void, that Covert was enjoined from using a
common driveway, and that Covert committed a trespass on appellees’ property.
{¶2} This amounted to a ruling on each of the claims raised by the appellees in
their Complaint, which included the following: an Ejectment claim, asserting that Covert
entered onto the property of Lahner and added certain improvements; a Trespass claim,
asserting that modifying their property through the installation of the foregoing items
resulted in a trespass; a claim for an injunction; and a Breach of Contract claim, which
asserted that Covert agreed to drill his own water well for his property. The trial court
also appears to have disposed of the related counterclaims raised by Covert, which
requested rulings based on the similar grounds, including requesting a declaration that
he was entitled to use a common driveway and that he could use the water well located
on appellees’ property.
{¶3} The Judgment Entry, while ruling on all of the claims before the court,
including the trespass claim, stated that “a hearing shall be scheduled at a later date to
determine the amount of damages owed to Plaintiffs by Defendant Timothy Covert as a
result of [his] trespass.” The Judgment Entry also included the language, “there is no
just reason for delay.” A review of the docket reveals that a hearing has not yet been
held on the matter of damages.
{¶4} “In order for a judgment to be final and appealable, the requirements of
R.C. 2505.02 and Civ.R. 54(B), if applicable, must be satisfied.” Bristol Twp. Bd. of
Trustees v. Haney, 11th Dist. No. 2010-T-0084, 2010-Ohio-3965, ¶ 3. “An order that
affects a substantial right in an action that in effect determines the action and prevents a
judgment” is considered a final order. R.C. 2505.02(B)(1).
{¶5} In the present matter, it appears that all of the claims were ruled on by the
trial court except damages as they related to the trespass action. As a general matter,
“orders determining liability in the plaintiffs’ * * * favor and deferring the issue of
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damages are not final appealable orders under R.C. 2505.02 because they do not
determine the action or prevent a judgment.” State ex rel. White v. Cuyahoga Metro.
Hous. Auth., 79 Ohio St.3d 543, 546, 684 N.E.2d 72 (1997); Ohio & Vicinity Regional
Council of Carpenters v. McMarty, 11th Dist. No. 2005-T-0063, 2006-Ohio-2019, ¶ 12,
(“a judgment from a civil proceeding ‘which defers damages for a later determination of
an uncertain amount is not a final appealable order’”) (citation omitted); 134 W. 46th St.
Holdings LLC v. Myers, 11th Dist. No. 2012-A-0009, 2012-Ohio-4469, ¶ 10 (order
granting judgment but not ruling on damages was not final). In the present matter, the
trial court’s judgment determined only the issue of liability for trespass, and is, therefore,
not a final appealable order as contemplated by R.C. 2505.02.
{¶6} Since the aforementioned judgment is not final, the fact that the trial court
used Civ.R. 54(B) language in its judgment entry is irrelevant. Ohio & Vicinity Regional
at ¶ 13; Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989) (the
“mere incantation of the required language” of Civ.R. 54(B) cannot turn an otherwise
non-final order into a final appealable order). An order does not become final by merely
including boilerplate Civ.R. 54(B) language. Wisintainer v. Elcen Power Strut Co., 67
Ohio St.3d 352, 364, 617 N.E.2d 1136 (1993).
{¶7} To the extent that it could be argued that the judgment is final as to some
aspects of the case, we note that, in the present matter, it is in the interests of judicial
economy to have all claims heard by this court at the same time. It would be ineffective
for this court to have the issue of liability for trespass before it and not damages, as this
may necessitate a second appeal related to the matters before this court in the present
appeal. Further, all of the issues in this matter appear to be intertwined, as they
generally relate to whether Covert was allowed to use the parties’ common driveway or
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make changes to the area surrounding the driveway. It would be more economical to
address all of these issues in a consolidated, not piecemeal, fashion. Where the
“adjudication of all claims between the two parties best serves judicial economy and
justice, * * * [f]racturing the appellate process, in this particular case, is not in the
interest of ‘sound judicial administration.’” Deutsche Bank Natl. Trust Co. v. Germano,
11th Dist. No. 2010-P-0081, 2011-Ohio-3122, ¶ 9. See also KMV V, Ltd. v. DeBolt,
11th Dist. No. 2009-P-0045, 2009-Ohio-4454, ¶ 4 (emphasizing “the need to avoid
piecemeal appeals”).
{¶8} Moreover, since the underlying actions in this matter, aside from the
trespass action, are for breach of contract, it should not be said that the judgment
becomes final by virtue of being a declaratory judgment. While some of the
counterclaims raised by Covert were framed as declaratory judgment actions, all of the
issues ruled upon relate directly to what was agreed to by the parties under their
contract for the sale of the real estate in this matter. Ohio & Vicinity Regional, 2006-
Ohio-2019, at ¶ 10-11
{¶9} Based upon the foregoing analysis, this appeal is hereby sua sponte
dismissed due to lack of a final appealable order.
{¶10} Appeal dismissed.
CYNTHIA WESCOTT RICE, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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