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Parmelee v. Schnader

Court of Appeals of Ohio, Seventh District, Mahoning

May 3, 2017

NANCY PARMELEE, et al. PLAINTIFFS-APPELLANTS
v.
GENE SCHNADER, et al. DEFENDANTS-APPELLEES

         Civil Appeal from the Court of Common Pleas, Mahoning County, Ohio Case No. 2015 CV 1919

          For Plaintiffs-Appellants: Atty. Anthony J. Farris Atty. Jennifer Ciccone.

          For Defendants-Appellees: Atty. Gregory A. Beck Atty. Tonya J. Rogers Baker, Dublikar, Beck, Wiley & Mathews.

          JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb.

          OPINION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶1} Plaintiffs-Appellants Nancy Parmelee and Amy Sloan appeal a decision of the Mahoning County Common Pleas Court granting summary judgment in favor of Defendants-Appellees Steven Kotheimer, Goshen Police District, and Goshen Township. Appellees have filed a motion to dismiss, arguing this Court lacks jurisdiction because the appeal is premature. We conclude that the judgment entry appealed from constitutes a final appealable order.

         {¶2} This case arises from a property dispute in 2014 between Appellants and codefendant Gene Schnader. Appellants alleged that they were tenants at a residential property owned by Schnader in Goshen Township, and were attempting to retrieve some personal property from the residence. Schnader purportedly would not allow Appellants access to the property. Defendant-Appellee Steven Kotheimer, a police officer with the Goshen Police District, was dispatched to the property due to the dispute between the parties.

         {¶3} Appellants sued Appellees in 2015 setting forth sixteen claims. The first twelve claims were directed primarily against Schnader only. They included actions for conversion and violations of R.C. Chapter 5321, Ohio's Landlord-Tenant Act, and provisions governing forcible entry and detainer set forth in R.C. Chapter 1923. Appellants alleged they were Schnader's tenants, that he unlawfully evicted them, and that he continued to retain some of their personal belongings. The remaining four claims were directed against Appellees only. In addition to the claims they made against Schnader, they included claims against Appellees for violations of 42 U.S.C. 1983. They alleged that Appellees deprived them of their Fourth and Fourteenth Amendment due process rights by assisting in the unlawful eviction.

         {¶4} Appellees filed a motion for summary judgment asserting immunity. Appellants filed a memorandum in opposition and Appellees filed a reply brief in support of their summary judgment motion.

         {¶5} On October 19, 2016, the trial court granted Appellees' motion for summary judgment. The court found that Appellee Officer Kotheimer acted in an objectively reasonable manner and was entitled to qualified immunity. As to Appellee Goshen Police District, the court found that a township police department is not sui juris and therefore does not have the legal capacity to be sued. As for Appellee Goshen Township, the court determined that it was entitled to summary judgment because there was no evidence demonstrating deliberate indifference.

         {¶6} Approximately three months later, on January 25, 2017, the trial court filed an amended judgment entry which was nearly identical to the entry it filed on October 19, 2016. In this entry, however, the court included "no just reason for delay" language pursuant to Civ.R. 54(B) (Judgment upon multiple claims or involving multiple parties).

         {¶7} This appeal followed. Appellees have filed a motion to dismiss, arguing the appeal is premature as numerous claims remain pending against codefendant Schnader. Appellants have responded with a motion in opposition asserting that the requirements of Civ.R. 54(B) have been met to transform the entry appealed into a final appealable order. Appellants have also requested a thirty-day extension to file their merit brief.

         {¶8} Appellate courts review a purported final order that disposes of some, but not all claims in an action by applying a two-step analysis. Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352, 354, 617 N.E.2d 1136 (1993). The first inquiry involves the predominantly legal question of whether the order sought to be appealed is a final appealable order as defined by R.C. 2505.02 (i.e., affects a substantial right and in effect determines an action and prevents a judgment.) If so, the second question entails review of whether the trial court's invocation of the Civ.R. 54(B) language, a primarily factual determination, was supported by some competent and credible evidence. Id. at 356, 617 N.E.2d 1136.

         {¶9} Regarding our first inquiry, Appellees suggest that simply by virtue of the fact that the trial court's judgment entry does not address the remaining twelve claims against codefendant Schnader the entry does not satisfy R.C. 2505.02(B)(1)'s requirement that it "in effect determines the action." However, the Ohio Supreme Court has specifically held that when a trial court grants summary judgment to only some parties and not others, the entry still determines the action as to the parties who were granted summary judgment. Thus, together with the appropriate ...


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