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Kierland Crossing, LLC v. Ruth's Chris Steak House

November 1, 2011

KIERLAND CROSSING, LLC, PLAINTIFF-APPELLANT,
v.
RUTH'S CHRIS STEAK HOUSE, INC. ET AL.,
DEFENDANTS-APPELLEES.



(C.P.C. No. 09CVH-11-17786)

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

Cite as Kierland Crossing, L.L.C. v. Ruth's Chris Steak House, Inc.,

(REGULAR CALENDAR)

DECISION

ON MOTION TO DISMISS

{¶1} Defendants-appellees, Ruth's Hospitality Group, Inc., fka Ruth's Chris Steak House, Inc., RHG Fish Market, Inc. (together, "RHG Parties"), and Cameron Mitchell Restaurants ("CMR") (collectively, "appellees"), move this court to dismiss the appeal of plaintiff-appellant, Kierland Crossing, LLC ("Kierland"), for lack of a final appealable order and, accordingly, lack of jurisdiction. Kierland opposes appellees' motion.

{¶2} Kierland commenced this action in the Franklin County Court of Common Pleas by filing a complaint against the RHG Parties and CMR for breach of two commercial leases. The RHG Parties filed an answer and counterclaims, in which they alleged that Kierland's claims were barred by a previously executed settlement and release agreement, whereby Kierland agreed to terminate the subject leases and release all claims arising from the leases in exchange for the RHG Parties' payment of $500,000. In their counterclaims for declaratory judgment and specific performance, the RHG Parties requested, in part, a declaration that the settlement and release agreement was a valid and binding contract that extinguished Kierland's claims under the leases, a declaration that Kierland breached the settlement and release agreement, and an order that Kierland perform its obligations thereunder. The RHG Parties subsequently amended their counterclaims to add a request for attorney fees, as compensatory damages, to their prayer for relief. CMR filed an answer and cross-claim, but CMR dismissed its cross-claims with prejudice on April 21, 2011.

{¶3} The RHG Parties, CMR, and Kierland each moved for summary judgment, and, on May 3, 2011, the trial court granted the RHG Parties and CMR's motions for summary judgment and denied Kierland's motion for summary judgment. The trial court concluded that the settlement and release agreement was a valid and binding contract that precluded Kierland's claims under the leases. The parties agree that the trial court's decision determined all pending claims except the RHG Parties' request for attorney fees. On June 22, 2011, the trial court issued a Final Judgment Entry, which dismissed Kierland's complaint and granted judgment in favor of the RHG Parties on their amended counterclaims for declaratory judgment and specific performance. The trial court retained jurisdiction to rule upon any motion for attorney fees. The judgment entry states, "THERE IS NO JUST REASON FOR DELAY."

{¶4} The RHG Parties now argue that this court lacks jurisdiction to hear Kierland's appeal because the June 22, 2011 judgment entry, which did not determine their entitlement to attorney fees, is not a final appealable order. The RHG Parties filed a motion for attorney fees as compensatory damages for Kierland's breach of the settlement and release agreement on July 19, 2011, three days before Kierland filed its notice of appeal. The motion for attorney fees remains pending in the trial court.

{¶5} Section 3(B)(2), Article IV, Ohio Constitution limits an appellate court's jurisdiction to the review of final orders. See also Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20. " 'A final order * * * is one disposing of the whole case or some separate and distinct branch thereof.' " Noble v. Colwell (1989), 44 Ohio St.3d 92, 94, quoting Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio St.2d 303, 306. An appellate court must dismiss an appeal taken from an order that is not final and appealable. Farmers Mkt. Drive-In Shopping Ctrs. v. Magana, 10th Dist. No. 06AP-532, 2007-Ohio-2653, ¶10, citing Renner's Welding & Fabrication, Inc. v. Chrysler Motor Corp. (1996), 117 Ohio App.3d 61, 64. See also McClary v. M/I Schottenstein Homes, Inc., 10th Dist. No. 03AP-777, 2004-Ohio-7047, ¶15.

{¶6} The Supreme Court of Ohio has set forth a two-step analysis for determining whether an order is final and appealable. See Gen. Acc. Ins. Co. at 21. First, the appellate court must determine whether the order constitutes a final order as defined by R.C. 2505.02. If the order is final under R.C. 2505.02, the court must determine whether Civ.R. 54(B) applies. Civ.R. 54(B) provides, in part, as follows:

* * * 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.

If Civ.R. 54(B) language is required, the court must determine whether the order contains a certification that "there is no just reason for delay." Where an order adjudicates fewer than all claims in a case, it must meet the requirements of both R.C. 2505.02 and Civ.R. 54(B) to be final and appealable. Noble at syllabus.

{ΒΆ7} Although the judgment entry here contains Civ.R. 54(B) language, the RHG Parties nevertheless argue that it is not a final appealable order. Civ.R. 54(B) cannot affect the finality of an order, but it permits the separation of claims for purposes of appeal and the early appeal of such claims, within the trial court's discretion. Alexander v. Buckeye Pipe Line Co. (1977), 49 Ohio St.2d 158, 159. Thus, in determining whether an appeal certified under Civ.R. 54(B) is a final appealable order, an appellate court should ...


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