Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2006 CV 02995.
LuWayne Annos, and Brian C. Kren, Girard City Law Director,
Richard Leland Evans and Richard James Silk, Jr., Dickie
McCamey & Chilcote, P.C., (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
Appellee, The Youngstown Belt Railway Co., et al.
("YBR"), has moved to dismiss the underlying
appeal, filed by appellant, City of Girard, Ohio ("the
city"), for lack of a final, appealable order. For the
reasons that follow, we grant YBR's motion and dismiss
the instant appeal.
In 2006, the city sought to appropriate approximately 41.5
acres of a 55-acre parcel of land owned, but not fully used,
by YBR. YBR filed a motion to dismiss, arguing the Trumbull
County Court of Common Pleas was federally preempted by the
Interstate Commerce Commission Termination Act
("ICCTA") and that, therefore, the matter must be
committed to the exclusive jurisdiction of the Surface
Transportation Board ("STB"). The city opposed
YBR's motion, arguing the appropriation would have no
effect on YBR's operation of its railway and, as a
result, its cause of action was not federally preempted. In
May 2010, the trial court concluded the city's cause of
action in appropriation was federally preempted.
The city appealed and, in Girard v. Youngstown Belt Ry.
Co., 196 Ohio App.3d 271, 2011-Ohio-4699 (11th Dist.),
while rejecting much of the trial court's rationale, this
court affirmed the trial court's ultimate disposition.
Id. at ¶55. The Supreme Court of Ohio then
accepted discretionary review of the City's appeal. In
Girard v. Youngstown Belt Ry. Co., 134 Ohio St.3d
79, 2012-Ohio-5370, the Court reversed this court and held
the Trumbull County Court of Common Pleas had jurisdiction
over the city's complaint for appropriation was not
federally preempted under the ICCTA. Id. at
¶44. The matter was therefore remanded to the court of
Ultimately, the parties commenced discussions regarding a
possible resolution of the city's appropriation claim.
The city then attempted to enforce a purported settlement
agreement through a motion to enforce. YBR, however, denied a
settlement had been reached. A hearing was held and, on
December 6, 2018, the trial court issued a decision denying
the motion to enforce.
On January 7, 2019, the city filed a motion to amend and
supplement its complaint for appropriation to include the
appropriation of two different rights-of-way. YBR opposed the
motion, but the trial court granted the same. Subsequently,
YBR filed a motion to reconsider, asserting the additional
appropriation(s) were preempted by the ICCTA. A hearing was
held and, on August 9, 2019, the trial court granted
YBR's motion concluding it lacked subject-matter
jurisdiction to hear the new matters that were the subject of
the amended complaint. The judgment entry stated it was a
"final appealable order," but, notwithstanding the
pending appropriation proceedings, did not include Civ.R.
54(B) language. The city filed a notice of appeal of both the
December 6, 2018 judgment denying enforcement of a purported
settlement agreement as well as the August 9, 2019 judgment.
YBR subsequently filed its motion to dismiss for lack of a
final appealable order, to which the city duly opposed; YBR,
with leave of this court, filed a reply to the memorandum in
Pursuant to Section 3(B)(2), Article IV of the Ohio
Constitution, a judgment of a trial court can be immediately
reviewed by an appellate court only if it constitutes a
"final order" in the action. Germ v.
Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241,
¶3. If a lower court's order is not final, then an
appellate court does not have jurisdiction to review the
matter, and the matter must be dismissed. Gen. Acc. Ins.
Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20 (1989).
For a judgment to be final and appealable, it must satisfy
the requirements of R.C. 2505.02 and if applicable, Civ.R.
54(B). See Children's Hosp. Med. Ctr. v.
Tomaiko, 11th Dist. Portage No. 2011-P-0103,
We first point out that the December 6, 2018 judgment is not
properly before this court because the entry did not include
proper Civ.R. 54(B) language. To the extent that judgment was
otherwise final and appealable, Civ.R. 54(B) language was
necessary because issues are still pending relating to the
original appropriations proceeding. We shall next consider
whether the August 9, 2019 judgment is final and appealable.
Pursuant to R.C. 2505.02(B), there are various categories of
a "final order," and if the judgment of the trial
court satisfies any of them, it will be deemed a "final
order and can be immediately appealed and reviewed by a court
of appeals. YBR sets forth various bases in support of its
argument that the underlying judgment is not a final,
appealable order. The city, alternatively, does not make a
specific argument that the order is final, per R.C.
2505.02(B); rather, it appears to presume finality and simply
requests this court to temporarily remand this matter for the
trial court to determine whether to affix the necessary
Civ.R. 54(B) language. In its docketing statement, however,
the city references R.C. 2505.02(B)(1), (2), (4), and (7) as
bases for the appealability of the order.
R.C. 2505.02(B) ...