Carroll v. Seymour, Unpublished Decision (5-17-1999)

On April 8, 1999, appellee, Bernard Carroll, filed a Motion to Dismiss this appeal filed by Defendant State Farm Mutual Automobile Insurance Company (State Farm). Appellant filed no response.

Appellee asserts that the Entry from which this appeal is taken is not a final appealable order because the Entry denied State Farm's Motion for Summary Judgment but did not grant judgment in favor of either party and did not try the issue of damages.

It is well established that an order must be final before it can be reviewed by an appellate court. See Section 3(B)(2), Article IV of the Ohio Constitution. See, also, General Acc.Ins. Co. v. Insurance Co. of North America (1989), 44 Ohio St.3d 17,20. If an order is not final and appealable, then an appellate court has no jurisdiction to review the matter and it must be dismissed. Lisath v. Cochran (Apr. 14, 1993), Lawrence App. No. 92CA5, unreported; In re Christian (July 22, 1992), Athens App. No. 1507, unreported.

Except in limited circumstances, an order denying a motion for summary judgment is interlocutory and not a final appealable order. Celebrezze v. Netzley (1990), 51 Ohio St.3d 89. See, also, State ex rel. Overmeyer v. Walinski (1966),8 Ohio St.2d 23; Tomblin v. Southern Ohio Med. Ctr. (Mar. 30, 1998), Scioto App. No 97CA2535, unreported; Slavens v.Spetnagel (Sept. 28, 1994), Jackson App. No. 93 CA 727, unreported.

Here, the trial court's Entry did not render judgment in favor of either party, did not try the issue of damages and did not contain the "no just reason for delay" language of Civ.R. 54(B).

Upon consideration, this court finds that the order from which this appeal is taken and from which the appellants seek a stay is not a final appealable order. This court, therefore, lacks jurisdiction to grant a stay of execution of an entry which is not a final order of the trial court. Appellants' Motion for Stay is DENIED and this appeal is hereby DISMISSED. At such time as the trial court determines all of the issues before it, appellant may file a new notice of appeal from that Entry.

Appeal Dismissed. Costs to appellant.

Abele, J. and Evans, J., Concur.

_______________________________ Roger L. Kline, Presiding Judge