Tonti Homes Corp. v. Siculan

[Cite as Tonti Homes Corp. v. Siculan, 2022-Ohio-3067.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Tonti Homes Corporation, :
Plaintiff-Appellant, :
No. 22AP-162
v. : (C.P.C. No. 20CV-8382)
Tom Siculan et al., : (ACCELERATED CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on September 1, 2022
On brief: Cassone Law Offices, LLC, Michael J. Cassone,
and Alex J. Castle, for appellant. Argued: Alex J. Castle and
Michael J. Cassone.
On brief: Fitrakis & Gadell-Newton, LLC, and Constance A.
Gadell-Newton, for appellee Nancy Delgado. Argued:
Constance A. Gadell-Newton.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Tonti Homes Corporation, appeals a decision and entry
entered by the Franklin County Court of Common Pleas filed February 14, 2022. In the
February 14, 2022 decision and entry, the court addressed several pending motions,
including the motion to dismiss of defendants-appellees William Perez Bernal and Jessica
Perez Manrique ("defendants-Perezes"), and the March 24, 2021 motion for leave to
amend of appellant. The court granted the defendants-Perezes' motion to dismiss in part
as to the claims based on the creation of a blind trust between appellant and defendant
Tom Siculan ("defendant Siculan") and denied appellant's motion for leave to amend the
claims regarding the creation of a blind trust in the complaint. For the following reasons,
No. 22AP-162 2
we dismiss this appeal due to lack of jurisdiction as the February 14, 2022 decision and
entry is not a final, appealable order.
I. Introduction
{¶ 2} Appellant filed a complaint alleging claims against five defendants: Tom
Siculan, Valmer Land Title Agency, Nancy Delgado, William Perez Bernal, and Jessica
Perez Manrique. Many of the claims were based on what appellant initially alleged to be a
blind trust. One of the claims was a claim for conversion against defendant Siculan. As
noted above, in the February 14, 2022 decision and entry, the court dismissed the claims
based on the creation of a blind trust and denied appellant's motion to amend the complaint
as to the same claims.
{¶ 3} Appellant filed an appeal of the February 14, 2022 decision and entry.
Appellant filed a merit brief alleging two assignments of error: (1) the trial court erred in
granting the defendants-Perezes' motion to dismiss in part, and (2) the trial court erred in
denying its motion to amend the claims regarding the creation of a blind trust.
{¶ 4} Only one of the defendants, Nancy Delgado ("appellee-Delgado"), filed a brief
in response to appellant's merit brief. In its February 14, 2022 decision and entry, the court
also addressed a motion for a more definite statement which appellee-Delgado filed as well
as a motion for a more definite statement which the defendants-Perezes had filed. The
court ruled that its granting of the defendants-Perezes' motion to dismiss in part as to the
claims based on the creation of a blind trust "renders moot the defendants' motions for a
more definite statement." (Emphasis added.) (Decision at 5.)
{¶ 5} Appellee-Delgado did not file a motion to dismiss. Nevertheless, considering
the trial court's use of the plural "defendants' motions" in rendering moot the motions for
more definite statement as well as its analysis related to the nature of the claims based on
the creation of a blind trust rather than the defendant against whom the claims were made,
we construe the trial court's dismissal in part as dismissing the claims based on the creation
of a blind trust alleged against the defendants-Perezes and appellee-Delgado. Appellant
apparently construes the trial court's dismissal the same in that appellant's brief states:
In its Decision and Entry, the Trial Court dismissed all claims
save the single claim for Conversion as Against Defendant-
Appellee Siculan. * * * In doing so, Plaintiff-Appellant was left
only with the ability to recover money damages from
Defendant-Appellee Siculan for its claim of Conversion. All
No. 22AP-162 3
other claims allowing Plaintiff-Appellant to recover any
damages or relief have been thwarted by the Trial Court's
dismissal of all other parties except for Defendant-Appellee
Siculan.
(Appellant's Brief at 5-6.)
II. Jurisdiction of the Court of Appeals
{¶ 6} Appellee-Delgado argues in her brief that the February 14, 2022 entry is not
a final, appealable order. Appellant, in its merit brief, argues that the dismissal in part was
final and appealable because it was with prejudice,1 barred by res judicata, and the
dismissed claims could not be pled in any other way.2 We agree with appellee-Delgado
that the February 14, 2022 decision and entry is not a final, appealable order.
{¶ 7} Pursuant to Ohio Constitution, Article IV, Section 3(B)(2), a reviewing court
is conferred jurisdiction to review final, appealable orders from lower courts of their
districts. Final, appealable orders are those that " 'dispos[e] of the whole case or some
separate and distinct branch thereof.' " McCracken v. Lee, 10th Dist. No. 19AP-236, 2020-
Ohio-3125, ¶ 10, quoting Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303, 306 (1971). A
trial court order is final and appealable only if it meets the requirements of R.C. 2505.02
and, if applicable, Civ.R. 54(B). Oakley v. Ohio State Univ. Wexner Med. Ctr., 10th Dist.
No. 18AP-843, 2019-Ohio-3557, ¶ 10. R.C. 2505.02(B) defines a final order, in relevant
part, as:
An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one
of the following:
1 We note the February 14, 2022 decision and entry does not state that the dismissal in part was with
prejudice. Nevertheless, the decision and entry states that the dismissal was pursuant to Civ.R. 12(B)(6).
This court has found that a dismissal of a complaint pursuant to a Civ.R. 12(B)(6) motion is a determination
upon the merits of that complaint and therefore, even though the dismissal did not indicate whether the
dismissal was with or without prejudice, it was considered to be an adjudication on the merits pursuant to
Civ.R. 41(B)(3) and therefore prejudice and res judicata applied to bar the subsequent action. Reasoner v.
Columbus, 10th Dist. No. 04AP-800, 2005-Ohio-468, ¶ 7, 10. However, it is important to note that the
decision and entry did not dismiss the complaint in its entirety, but rather only in part. Therefore, we look
to Civ.R. 54(B).
2In support, appellant points us to State ex rel. Arcadia Acres v. Ohio Dept. of Job & Family Servs., 123 Ohio
St.3d 54, 2009-Ohio-4176, ¶ 15. However, our review of the case reveals that the dismissal in Arcadia Acres
was of the entire complaint, whereas the dismissal in the case before us was of the complaint in part.
Furthermore, there is no discussion of Civ.R. 54(B) in Arcadia Acres, whereas Civ.R. 54(B) controls in the
case before us. Therefore, we do not find Arcadia Acres to be dispositive or persuasive.
No. 22AP-162 4
(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment[.]
{¶ 8} Appellant argues the February 14, 2022 decision and entry is an order that
affects a substantial right and, in effect, determines the action and prevents the judgment.
Assuming arguendo the February 14, 2022 decision and entry meets this criteria, it is still
necessary for us to consider Civ.R. 54(B) as one claim and one party have not been
dismissed: the conversion claim against defendant Siculan.
{¶ 9} Civ.R. 54 states:
(B) Judgment upon multiple claims or involving
multiple parties. 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, 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.
In the absence of a determination that there is no just reason
for delay, any order or other form of decision, however
designated, 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.
{¶ 10} When the trial court's order adjudicates less than all of the claims or rights of
all the parties, and it does not meet the requirements of R.C. 2505.02 and Civ.R. 54(B), it
is not a final, appealable order. Leonard v. Huntington Bancshares, Inc., 10th Dist. No.
13AP-843, 2014-Ohio-2421, ¶ 11. If a trial court's order is not final and appealable, then a
reviewing court does not have jurisdiction to consider the case and it must be dismissed.
State v. Harvey, 10th Dist. No. 19AP-165, 2019-Ohio-4022, ¶ 8, citing Gen. Acc. Ins. Co. v.
Ins. Co. of N. Am., 44 Ohio St.3d 17, 20 (1989).
{¶ 11} In addition, we also note this court has stated that "[g]enerally, a decision
denying leave to file an amended complaint is not a final, appealable order." Ohio Farmers
Ins. Co. v. Bd. of Cty. Commrs., 10th Dist. No. 10AP-164, 2011-Ohio-2942, ¶ 19, citing
Siemaszko v. FirstEnergy Operating Co., 187 Ohio App.3d 437, 2010-Ohio-2121, ¶ 9 (6th
No. 22AP-162 5
Dist.). This general principle can change, however, when Civ.R. 54(B) language is included.
Id.{¶ 12} In the present case, even if we were to consider that the trial court's
February 14, 2022 decision and entry meets the requirements of R.C. 2505.02, we could
not find the decision and entry is a final, appealable order pursuant to Civ.R. 54(B). While
the decision and entry dismissed appellant's claims based on the creation of a blind trust,
the trial court granted appellant's motion to amend the conversion claim against defendant
Siculan. Our review of the record indicates that appellant did indeed file an amended
complaint on February 27, 2022. Moreover, the trial court's decision and entry does not
contain language, pursuant to Civ.R. 54(B), that "there is no just reason for delay" of the
appeal. Because the trial court's February 14, 2022 decision and entry granting partial
dismissal of appellant's case and denying appellant's motion to amend the claims based on
the creation of a blind trust was not a final, appealable order, we lack jurisdiction to review
appellant's assignments of error.
III. Conclusion
{¶ 13} Based on the foregoing, we find the order from which appellant seeks to
appeal is not a final, appealable order. Therefore, we must dismiss this appeal for lack of
jurisdiction.
Appeal dismissed.
KLATT and MENTEL, JJ., concur.