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Oaktree Condominium Association, Inc. v. Hallmark Building Co.

Court of Appeals of Ohio, Eleventh District

September 26, 2008

OAKTREE CONDOMINIUM ASSOCIATION, INC., Plaintiff-Appellee,
v.
THE HALLMARK BUILDING COMPANY, et al., Defendants-Appellants.

Civil Appeal from the Court of Common Pleas, Case No. 07 CV 002615.

Steven M. Ott, Latha M. Srinivasan, Brandy M. Slates, Ott & Associates Co., L.P.A., (For Plaintiff-Appellee).

Thomas J. Connick, Davis & Young Co., L.P.A., (For Defendants-Appellants).

MEMORANDUM OPINION

MARY JANE TRAPP, J.

{¶1} On May 14, 2008, appellants, The Hallmark Building Company and Fairfax Apartments, Inc. (collectively "Hallmark"), filed a notice of appeal from the May 7, 2008 judgment entry of the Lake County Court of Common Pleas.

{¶2} In the May 7, 2008 judgment entry, the trial court denied Hallmark's motion for summary judgment. In that entry, the trial court found that R.C. 2305.131 was not applicable and did not bar Oaktree's actions. The trial court further stated that "[h]aving deemed that R.C. §2305.131 does not apply in this case, the issue of retroactive or prospective application of the statute is moot." The trial court also indicated that Oaktree's "alternative argument that R.C. §2305.131 is unconstitutional as applied in this case has been rendered moot." It is from that entry that Hallmark filed the instant appeal.

{¶3} On May 30, 2008, this court issued a judgment entry indicating that we may not have jurisdiction to consider this appeal. On June 18, 2008, Hallmark filed a memorandum in support of jurisdiction and a request to amend the notice of appeal. In their memorandum, Hallmark makes three assertions: one, that the judgment is a final appealable order because it affects a substantial right; two, that it denies a provisional remedy; and three, that it de facto held that R.C. 2305.131 was unconstitutional.

{¶4} On June 30, 2008, Oaktree filed a brief in opposition rebutting these three assertions.

{¶5} Section 3(B)(2), Article IV of the Ohio Constitution limits the jurisdiction of an appellate court to the review of final judgments of lower courts. A final order is statutorily defined by R.C. 2505.02(B), which provides as follows:

{¶6} "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:

{¶7} "(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;

{¶8} "(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;

{¶9} "(3) An order that vacates or sets aside a judgment or grants a new ...


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