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Wayne W. Clark, et al v. Kathleen L. Butler

September 27, 2011

WAYNE W. CLARK, ET AL., PLAINTIFFS-APPELLEES,
v.
KATHLEEN L. BUTLER, ET AL., DEFENDANTS-APPELLANTS.



CIVIL APPEAL FROM COMMON PLEAS COURT

The opinion of the court was delivered by: Abele, J.

Cite as

Clark v. Butler,

DECISION AND JUDGMENT ENTRY

{¶1} This is an appeal from a Ross County Common Pleas Court judgment in favor of Wayne W. Clark and Cheryl K. Clark, plaintiffs below and appellants herein, on their claim against Kathleen L. Butler and Butler Events, L.L.C., defendants below and appellants herein. Appellants assign the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"IN THE MAY 7, 2010, DECISION AND JUDGMENT ENTRY, THE TRIAL COURT'S FINDING THAT APPELLANTS DID NOT HAVE AN EASEMENT FOR THE USE OF THE COMMON SEWAGE SYSTEM WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

SECOND ASSIGNMENT OF ERROR:

"IN THE MAY 7, 2010, DECISION AND JUDGMENT ENTRY, THE TRIAL COURT'S FINDING THAT APPELLANTS DID NOT HAVE AN EASEMENT FOR THE USE OF THE COMMON SEWAGE SYSTEM WAS CONTRARY TO LAW."

{¶2} The parties are contiguous land owners. Appellees commenced the action with a complaint that alleged that appellants interfered with an easement for use of a septic system located on appellants' property. The easement was granted to appellees by a common predecessor-in-title to both properties. Appellants denied liability and asserted a number of counterclaims. Appellees denied liability on the counterclaims.

{¶3} After the parties submitted the case to the trial court on stipulations of fact, the court issued a decision and judgment in favor of appellees and granted them a declaratory judgment to use the "leach field" (septic system) on appellants' property. The court also found "no just reason for delay" and scheduled the matter for a hearing on damages. After appellees dismissed their "claims" for damages, the court issued an entry denoted as a "Final Appealable Order." The court repeated that it granted declaratory judgment to appellees and enjoined appellants from interfering with appellees' use of the "leach field." The court further noted that this "order is a final appealable order pursuant to Ohio Civil Rule 54." This appeal followed.

{¶4} Before we address the assignments of error, we must resolve a threshold jurisdictional issue. Ohio courts of appeal have appellate jurisdiction over "final appealable orders." Section 3(B)(2), Article IV of the Ohio Constitution. If a judgment appealed does not constitute a final order, an appellate court has no jurisdiction to consider it and the appeal must be dismissed. See Davison v. Reni (1996), 115 Ohio App.3d 688, 692, 686 N.E.2d 278; Prod. Credit Assn. v. Hedges (1993), 87 Ohio App.3d 207, 621 N.E.2d 1360; Kouns v. Pemberton (1992), 84 Ohio App.3d 499, 501, 617 N.E.2d 701. Furthermore, even if the parties do not raise the jurisdictional issues on appeal, appellate courts are required to raise them sua sponte once they become apparent. See In re Murray (1990), 52 Ohio St.3d 155, 159-160, 556 N.E.2d 1169, at fn. 2; Whitaker-Merrell v. Geupel Co. (1972), 29 Ohio St.2d 184, 186, 280 N.E.2d 922. A final order is one that, inter alia, affects a substantial right and, in effect, determines the judgment.*fn1

{¶5} The problem in the case sub judice is that at least one issue appears to remain pending. Before we get to this issue, we note that although the trial court did not formally enter judgment against appellants to resolve their counterclaims, the declaratory judgment(s) in favor of appellees rendered those claims moot. See e.g. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 21, 540 N.E.2d 266; Wise v. Gursky (1981), 66 Ohio St.2d 241, 20 O.O.3d 233, 421 N.E.2d 150, at the syllabus. Appellees also dismissed their various "claims" for damages.*fn2 Thus, these two issues do not give us pause. Rather, our concern is directed toward the portion of appellees' negligence claim that alleged that appellants caused damage to the septic system. Appellees asked the trial court for an order to direct appellants to "immediately repair and/or replace [the] septic system." We cannot find any indication that the trial court resolved this claim and the requested remedy.

{¶6} When multiple "claims" are involved, as is the case here, a judgment must also satisfy the requirements of Civ.R. 54(B). State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 776 N.E.2d 101, 2002-Ohio-5315, at ¶5; Noble v. Colwell (1989), 44 Ohio St.3d 92, 540 N.E.2d 1381, at the syllabus. A judgment satisfies Civ.R. 54(B) only "upon an express determination that there is no just reason for delay . . ." (Emphasis added.) We hasten to note that this rule calls for an "express determination" and the "no just reason for delay" language has been characterized by this Court and others as "magic words" necessary for an interlocutory order to be reviewed. Childs v Purtee (Dec. 6, 1994), Adams App. No. ...


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