Jones v. Carpenter

[Cite as Jones v. Carpenter, 2017-Ohio-440.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Mark E. Jones et al., :
Plaintiffs-Appellees/ :
[Cross-Appellants],
: No. 16AP-126
v. (C.P.C. No. 13CV-8943)
:
Ronda Carpenter et al., (REGULAR CALENDAR)
:
Defendants-Appellants/
[Cross-Appellees]. :
D E C I S I O N
Rendered on February 7, 2017
On brief: David K. Lowe, for plaintiffs-appellees.
Argued: David K. Lowe.
On brief: Eugene R. Butler Co., L.P.A., and Eugene R.
Butler, for defendants-appellants. Argued: Eugene R.
Butler.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendants-appellants, Ronda and Arthur Carpenter, appeal from
judgments of the Franklin County Court of Common Pleas that (1) awarded them
$8,602.79 in damages and (2) denied their motion for a new trial. Plaintiffs-appellees,
Mark E. Jones and A&A Towing, Inc., have filed a cross-appeal alleging error in the
judgment awarding the Carpenters damages. We dismiss this appeal because we lack
jurisdiction over it.
No. 16AP-126 2
{¶ 2} This case arises out of Ronda Carpenter's sale of all the stock of A&A Towing
to Jones. Carpenter and Jones each believe that the other has violated the purchase
agreement. Jones and A&A Towing initially filed suit, and the Carpenters responded with
a counterclaim.
{¶ 3} In the amended complaint, plaintiffs alleged claims for breach of contract,
unjust enrichment, and intentional and/or negligent misrepresentation. Plaintiffs also
requested a declaratory judgment stating the meaning of particular terms of the purchase
agreement. In the amended counterclaim, defendants alleged claims for breach of
contract, forfeiture of A&A Towing's stock and assets, and abuse of process. Defendants
also requested injunctive relief ordering plaintiffs to comply with the terms of the
purchase agreement.
{¶ 4} The parties tried their case in a bench trial. On December 29, 2015, the trial
court issued a judgment that, in relevant part, stated:
Upon review of all admissible evidence and testimony, the
Court finds that both parties breached the contract. The
Court finds for Plaintiffs, as to Count 1 of the Complaint, in
the amount of $53,797.21. The Court finds for Defendants on
Count 1 of the Counterclaim in the amount of $62,400.00.
Therefore, Judgment is entered in favor of the Defendants in
the amount of $8,602.79 with statutory interest from the date
of Judgment.
(Dec. 29, 2015 Jgmt. Entry.) Subsequent to the December 29, 2015 judgment, defendants
moved for a new trial to correct the amount of damages awarded them. In a judgment
issued February 19, 2016, the trial court denied that motion. Defendants then initiated
this appeal, and plaintiffs filed a cross-appeal.
{¶ 5} Article IV, Section 3(B)(2) of the Ohio Constitution establishes that courts of
appeals "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." Consequently, an order must be final before an appellate court may
review it. Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, ¶ 14. If
an order is not final, then an appellate court has no jurisdiction over it. Id.{¶ 6} An appellate court has a duty to sua sponte examine any deficiencies in its
jurisdiction. Leonard v. Huntington Bancshares, Inc., 10th Dist. No. 13AP-843, 2014-
No. 16AP-126 3
Ohio-2421, ¶ 8. Upon a determination that a party has taken an appeal from an order that
is not final and appealable, an appellate court must dismiss the appeal. Id.; Kierland
Crossing, LLC v. Ruth's Chris Steak House, Inc., 10th Dist. No. 11AP-627, 2011-Ohio-
5626, ¶ 5.
{¶ 7} To qualify as a final, appealable order, the order at issue must satisfy the
requirements of R.C. 2505.02. IBEW, Local Union No. 8 v. Vaughn Indus., L.L.C., 116
Ohio St.3d 335, 2007-Ohio-6439, ¶ 7. If the action involves multiple claims, and the
order does not enter a judgment on all the claims, the order must also satisfy Civ.R. 54(B)
by including express language that "there is no just reason for delay." Id., quoting Civ.R.
54(B).
{¶ 8} R.C. 2505.02(B) lists the various types of orders that constitute final,
appealable orders. Only R.C. 2505.02(B)(1) potentially applies to the trial court's
December 29, 2015 judgment. R.C. 2505.02(B)(1) provides that an order is a final,
appealable order if it "affects a substantial right in an action that in effect determines the
action and prevents a judgment." A "substantial right" is "a right that the United States
Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure
entitles a person to enforce or protect." R.C. 2505.02(A)(1). For an order to determine an
action and prevent a judgment for the party appealing, the order " 'must dispose of the
whole merits of the cause or some separate and distinct branch thereof and leave nothing
for the determination of the court.' " Natl. City Commercial Capital Corp. v. AAAA at
Your Serv., Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, ¶ 7.
{¶ 9} Here, the trial court's December 29, 2015 judgment decided both plaintiffs'
and defendants' claims for breach of contract. A party's right to the enforcement and
performance of a contract involves a substantial right. Kierland Crossing at ¶ 8. Thus, by
finding that both parties had breached the purchase agreement and determining the
amount of damage done by each side's respective breach, the trial court affected the
parties' substantial rights. Additionally, because the trial court completely resolved each
side's claim for breach of contract, the December 29, 2015 judgment disposed of a distinct
branch of the action and left nothing for further determination. The judgment, therefore,
qualifies as a final, appealable order under R.C. 2505.02(B)(1).
No. 16AP-126 4
{¶ 10} In many cases, a determination that a judgment satisfies R.C. 2505.02(B)(1)
would end our analysis and result in the conclusion that the judgment is a final,
appealable order. This case, however, is different because it involves multiple claims.
Thus, we must also determine whether the December 29, 2015 judgment complies with
Civ.R. 54(B). IBEW at ¶ 7.
{¶ 11} According to Civ.R. 54(B):
When more than one claim for relief is presented in an action
whether as a claim, counterclaim, cross-claim, or third-party
claim, and whether arising out of the same or separate
transactions, * * * the court may enter final judgment as to
one or more but fewer than all of the claims * * * only upon an
express determination that there is no just reason for delay.
Without the necessary Civ.R. 54(B) language, a judgment that adjudicates fewer than all
the claims "shall not terminate the action as to any of the claims * * *, and the order or
other form of decision is subject to revision at any time before the entry of judgment
adjudicating all the claims." Civ.R. 54(B); accord Noble v. Colwell, 44 Ohio St.3d 92, 96
(1989) ("Unless [the] words ["there is no just reason for delay"] appear where multiple
claims and/or multiple parties exist, the order is subject to modification and it cannot be
either final or appealable."). Because such a judgment is not final, an appellate court may
not review it. IBEW at ¶ 8.
{¶ 12} Both plaintiffs' complaint and defendants' counterclaim pleaded four
claims. The December 29, 2015 judgment only disposed of two of the combined eight
claims. Consequently, for the December 29, 2015 judgment to qualify as a final,
appealable order, it had to include Civ.R. 54(B) language. No such language appears in
the judgment. Accordingly, we conclude that the December 29, 2015 judgment is not a
final, appealable order, and we lack jurisdiction to review it.
{¶ 13} We reach this conclusion even though the December 29, 2015 judgment
proclaims that "[t]his is a final, appealable order." (Dec. 29, 2015 Jgmt. Entry.) A trial
court may not bypass the requirement to include the express language of Civ.R. 54(B)
simply by designating the order as final. IBEW at ¶ 8.
{¶ 14} In addition to the December 29, 2015 judgment, defendants also appeal the
February 19, 2016 judgment denying their motion for a new trial. A party may only
appeal a judgment denying a post-trial motion, such a motion for new trial, if an
No. 16AP-126 5
underlying final, appealable order exists. State ex rel. Bd. of State Teachers Retirement
Sys. v. Davis, 113 Ohio St.3d 410, 2007-Ohio-2205, ¶ 48; Eddie v. Saunders, 4th Dist. No.
07CA7, 2008-Ohio-4755, ¶ 17; accord Jenkins v. Northeastern Local Bd. of Edn., 2d Dist.
No. 16CA0002, 2016-Ohio-7099, ¶ 10 (a judgment overruling the appellant's post-trial
motions was not a final, appealable order where the underlying judgment was not a final,
appealable order); Epic Properties v. OSU LaBamba, Inc., 10th Dist. No. 07AP-44, 2007-
Ohio-5021, ¶ 18 (a judgment denying a motion for new trial was not a final, appealable
order where the underlying judgment was not a final, appealable order). Here, because
the December 29, 2015 judgment is not a final, appealable order, defendants may not
appeal the February 19, 2016 judgment.
{¶ 15} For the foregoing reasons, we conclude that we lack jurisdiction over this
appeal, and thus, we dismiss it.
Appeal dismissed.
TYACK, P.J., and SADLER, J., concur.