Court of Appeals of Ohio, Eighth District, Cuyahoga
ADAM FRIED, FIDUCIARY OF THE ESTATE OF VLADA SOFIJA STANCIKAITE ABRAITIS PLAINTIFF-APPELLEE
SARUNAS V. ABRAITIS, ET AL. DEFENDANTS-APPELLANTS
Appeal from the Cuyahoga County Court of Common Pleas Probate
Court Division Case No. 2015 ADV 203910
ATTORNEY FOR APPELLANT Catherine M. Brady
ATTORNEYS FOR APPELLEES For Adam Fried Adam M. Fried Martin
T. Galvin Paul R. Shugar David J. Walters Reminger Co.,
L.P.A., For Vivian Abraitis-Newcomer Randall M. Perla
BEFORE: Keough, A.J., Stewart, J., and Boyle, J.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, A.J.
Defendant-appellant, Sarunas V. Abraitis
("Sarunas"),  appeals from the trial court's
judgment that denied his motion for summary judgment, granted
the complaint for declaratory judgment of plaintiff-appellee,
Adam Fried ("Fried"), fiduciary of the estate of
Vlada Sofija Stancikaite Abraitis ("Vlada"), and
ordered that Sarunas had no right to take under Vlada's
will, and that any assets of the will be distributed to
Vivian Abraitis-Newcomer ("Vivian"), as the
personal representative of the estate of Vytautas Thomas
Abraitis ("Vytautas"). Sarunas contends, for
various reasons, that the trial court erred in denying his
motion for summary judgment and in granting the complaint for
declaratory judgment. However, because Vivian's
cross-claim for attorney fees and costs remains undecided,
the trial court's judgment does not constitute a final,
appealable order. Accordingly, we lack jurisdiction to
consider this appeal and must dismiss it.
On January 9, 2015, Fried, in his capacity as administrator
of Vlada's estate, filed a complaint for declaratory
judgment against Sarunas and Vivian, in her capacity as
personal representative of the estate of
Vytautas. The complaint sought a declaration that
Sarunas's bad faith conduct had forfeited his interest
under Vlada's will pursuant to R.C. 2907.10, and
directing the executor to distribute any assets of her estate
to the personal representative of Vytautas's estate.
On January 26, 2015, Vivian filed an answer to the complaint,
along with a cross-claim against Sarunas for attorney fees
and court costs she had incurred as a result of Sarunas's
frivolous conduct and bad faith in the matter. Subsequently,
on February 13, 2015, Sarunas filed an answer to Vivian's
cross-claim, denying that he had engaged in frivolous conduct
and asserting various affirmative defenses.
Sarunas then filed a motion for summary judgment, claiming
the statute of limitations had expired on Fried's
forfeiture claim. After a hearing, the trial court issued its
judgment entry (1) denying Sarunas's motion for summary
judgment, (2) finding that Sarunas's intentional
withholding of Vlada's 1993 will deprived him of his
right to take under the will as either a devisee or heir; (3)
granting the complaint for declaratory judgment; and (4)
ordering that any assets of the estate be distributed to
Vivian, as the personal representative of Vytautas's
estate. The judgment entry made no mention, however, of
Vivian's cross-claim. This appeal followed.
An order must meet the requirements of both R.C. 2505.02 and
Civ.R. 54(B), if applicable, to constitute a final,
appealable order. Chef Italiano Corp. v. Kent State
Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989). Under
R.C. 2505.02(B)(1), an order is a final order if it
"affects a substantial right in an action that in effect
determines the action and prevents a judgment." To
determine the action and prevent a judgment, the order
"must dispose of the whole merits of the cause or some
separate and distinct branch thereof and leave nothing for
the determination of the court." Hamilton Cty. Bd.
of Mental Retardation & Dev. Disabilities v.
Professionals Guild of Ohio, 46 Ohio St.3d 147, 153, 545
N.E.2d 1260 (1989).
Additionally, if the case involves multiple parties or
multiple claims, the court's order must meet the
requirements of Civ.R. 54(B) to qualify as a final,
appealable order. Under Civ.R. 54(B):
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
Thus, absent the mandatory language that "there is no
just reason for delay, " an order that does not dispose
of all claims is subject to modification and is not final and
appealable. Madfan, Inc. v. Makris, 8th Dist.
Cuyahoga No. 102179, 2015-Ohio-1316, ¶ 8, citing
Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d
1381 (1989); Deutsche Bank Natl. Co. v.
Caldwell, 196 Ohio App.3d 636, 2011-Ohio-4508, 964
N.E.2d 1093, ¶ 9 (8th Dist).
This case involves multiple claims: Fried's claim for
declaratory judgment and Vivian's cross-claim for
attorney fees and costs. Although the trial court resolved
the complaint for declaratory judgment, it did not rule on
Vivian's cross-claim. Moreover, the trial court did not
include in its judgment entry the mandatory Civ.R. 54(B)
language that there was no just reason for delay. Thus, the
court's judgment is not a final, appealable order.
Madfan at ¶ 10, citing Thomas v.
Roush, 4th Dist. Gallia No. 10CA9, 2011-Ohio-1705;
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