Court of Appeals of Ohio, Fourth District, Gallia
DECISION AND JUDGMENT ENTRY
HOOVER ADMINISTRATIVE JUDGE.
Plaintiffs-Appellants appeal a judgment granting summary
judgment to Defendants Optotraffic, LLC, Roy Taylor, and Mark
Coleman on all claims asserted against them and granting
summary judgment to Defendant Village of Cheshire on all but
Count II and Count VIII of the claims asserted against it.
Because claims remained pending against the Village of
Cheshire and the decision does not include Civ.R. 54(B)
language, we ordered appellants to file a memorandum within
ten days addressing whether we have jurisdiction.
See Magistrate's Order, Nov. 20, 2017.
Appellants did not respond.
Because the order appealed from is not a final, appealable
order we lack jurisdiction and DISMISS this
Appellate courts "have such jurisdiction as may be
provided by law to review and affirm, modify, or reverse
judgments or final orders of the courts of record inferior to
the court of appeals within the district[.]" Ohio
Constitution, Article IV, Section 3(B)(2); see R.C.
2505.03(A). If a court's order is not final and
appealable, we have no jurisdiction to review the matter and
must dismiss the appeal. Eddie v. Saunders, 4th
Dist. Gallia No. 07CA7, 2008-Ohio-4755, ¶ 11.
An order must meet the requirements of R.C. 2505.02 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 for the party
appealing, 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. See Chef Italiano Corp. at 88.
Under Civ.R. 54(B), "[w]hen 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." 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. Noble v.
Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989);
see Civ.R. 54(B). The purpose of Civ.R. 54(B) is
" 'to make a reasonable accommodation of the policy
against piecemeal appeals with the possible injustice
sometimes created by the delay of appeals[, ]' * * * as
well as to insure that parties to such actions may know when
an order or decree has become final for purposes of appeal *
* *." Pokorny v. Tilby Dev. Co., 52 Ohio St.2d
183, 186, 370 N.E.2d 738 (1977); quoting Alexander v.
Buckeye Pipeline, 49 Ohio St.2d 158, 160, 359 N.E.2d 702
The case presently before us involves multiple parties and
claims. However, the judgment appealed does not dispose of
all claims against all parties. The trial court did not grant
summary judgment as to Count II or Count VIII against the
Village of Cheshire, nor did the trial court include Civ.R.
To be clear, the Court finds that Cheshire is the only
remaining defendant and that the only issues remaining are
the validity of the speed limit, the Notice of Liability
issued for violating the speed limit to plaintiffs whose
cases were not dismissed and money collect by Cheshire
pursuant to the Notice of Liability. * * *
That Cheshire's motion as to Count II is granted and this
count is dismissed except for the allegations in paragraphs
70(a) of the second amended complaint as to the validity of
the speed limit. * * *
That Cheshire, Taylor and Coleman's motion as to Count
VIII is granted and this count is dismissed except as it
applies to the money collected by Cheshire pursuant to the
Notice of [L]iability.
In light of our determination that certain of the
plaintiffs' claims against the Village of Cheshire remain
undetermined, we lack jurisdiction to consider this appeal.
Accordingly, we DISMISS the appeal for lack
of a final, appealable order. APPEAL DISMISSED. COSTS
The clerk shall serve a copy of this order on all counsel of
record and unrepresented parties at their last known
addresses by ordinary mail and record service on the docket.