[Cite as Sauer v. Semer, 2010-Ohio-1931.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
NICHOLAS M. SAUER, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 1-09-62
v.
CATHY SEMER, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court
Trial Court No. CV 2008 1528
Appeal Dismissed
Date of Decision: May 3, 2010
APPEARANCES:
Gregory D. Wilson for Appellants
William C. Emerick for Appellees, Semer and BGG Inv.
Dawn M. Frick and Edward J. Dowd for Appellees,
Yocum Realty and Brenda Caprella
Case No. 1-09-62
PRESTON, J.
{¶1} Plaintiffs-appellants, Nicholas Sauer and Brooke Sauer (hereinafter
collectively “the Sauers”), appeal the judgment of the Allen County Court of
Common Pleas, which granted defendants-appellees’, Brenda Caprella and Yocum
Realty (aka New Yocum) (hereinafter, respectively “Caprella” and “Yocum
Realty”), motion for summary judgment. For the reasons that follow we dismiss
for lack of a final appealable order.
{¶2} This matter stems from the purchase of property located at 500-550
Brower Road, Lima, Ohio (hereinafter “the property”), which consisted of three
acres of property, a house, and a few outbuildings. Essentially, around July 2004,
Nicholas Sauer (hereinafter “Sauer”) was looking to purchase property for the
purpose of re-locating his insurance office that was currently at 410 Brower Road.
While driving to work one day, he drove past 500-550 Brower Road and saw a
“For Sale” sign in the yard with Caprella and Yocum Realty’s name on it. Sauer
contacted Caprella and the two met at the property the next day on July 22, 2004.
During his first walk-through of the property with Caprella, Sauer noticed that the
“basement floor [looked] like it was damp or that there was water stains,” and
noticed water stains on the ceiling of the first floor. Caprella informed Sauer that
according to the disclosure form that there was “slight seepage in the basement,”
and advised him that the sump pump may not have been working. As to the water
-2-
Case No. 1-09-62
stains in the first floor, Caprella advised Sauer that there had been a leak in the
roof previously, but that it had been replaced within the last six months.
{¶3} Four days later, on July 26, 2004, after only looking up the property
on the county auditor’s website for its taxes and market value, Sauer contacted
Caprella and told her that he was ready to make an offer. Caprella and Sauer met
again at the property, and, after doing another walk-through, Sauer offered to
purchase the property for $80,000, which was verbally accepted.
{¶4} On August 3, 2004, Caprella and Sauer met again, this time at his
office, and prepared the written offer, which was contingent upon a property
inspection. Sauer also signed a Dual Agency Agreement, which indicated that
Sauer knew Caprella was representing both him and the sellers-defendants, Cathy
Semer (hereinafter “Semer”), who was also the president of BGG Investment
Holdings, Inc. (hereinafter “BGG”).
{¶5} Sauer hired a home inspector, Don Faulkner (hereinafter
“Faulkner”), and met Faulkner at the property on the day of the inspection. Sauer
asked Faulkner to inspect the property and determine if there were any reasons
why Sauer should not purchase the property. Because of his concerns with the
damp basement, Sauer showed Faulkner the basement. Faulkner indicated that the
basement was “very damp” and thought that the problem was because the ground
outside the house needed to be re-graded since it sloped towards the house.
-3-
Case No. 1-09-62
{¶6} Regardless, on August 23, 2004, Sauer closed on the property. Soon
after closing, Sauer and his wife, Brooke Sauer (hereinafter “Brooke”), began
remodeling the house on the property. On several occasions Brooke brought the
couple’s newborn daughter with her while she worked on the flooring in the
house. On or about September 22, 2004, while Brooke was working at the house,
a man named Richard Commons (hereinafter “Commons”) came to the house. He
advised Brooke that he had been a previous tenant at the property and that he
believed there was mold in the property. Brooke immediately got her newborn
baby and left the property. Sauer met with Commons shortly thereafter and again
Commons claimed that there was mold in the property, which he believed had
caused him and his son health problems to the extent that they had to break the
lease and leave the property. Sauer contacted his attorney and faxed a letter to
Caprella advising her of what he had learned and requesting that the seller buy the
property back from him. Sauer requested a response within 24 hours. Upon
receiving the fax, Caprella attempted to contact Sauer, but was only able to leave
him a voice message, and then she contacted Semer to discuss the matter with her.
Sauer never returned Caprella’s phone call.
{¶7} Nevertheless, on January 19, 2005, the Sauers filed their original
complaint, Case No. CV2005-0053, against seller-defendant Cathy Semer. On
January 25, 2005, the Sauers amended their complaint to include Semer’s
-4-
Case No. 1-09-62
company, BGG, as an additional defendant. Moreover, after conducting several
depositions, on October 26, 2005, the Sauers filed their second amended complaint
and added Yocum and Caprella as defendants. The Sauers alleged claims of
fraudulent inducement, assault, intentional infliction of emotional distress, and
violations of R.C. 5302.30 and the agency agreement.
{¶8} On September 29, 2006, Semer and BGG filed a motion for
summary judgment, and Yocum Realty and Caprella filed a separate motion for
summary judgment. Thereafter, on February 20, 2007, the Sauers filed a
memorandum in opposition to both summary judgment motions, attaching nine
affidavits in support. On March 20, 2007, and further amended on March 29,
2007, the trial court overruled each of the defendants’ motions for summary
judgment.
{¶9} On October 25, 2007, all defendants’ filed a joint motion in limine to
preclude the testimony of Andrew Boester (the Sauers’ expert witness), and on
October 26, 2007, the trial court granted the defendants’ motion to exclude the
testimony of Andrew Boester on the basis that “the condition of the property when
these tests were done lacks the necessary probative value as to the condition of the
subject property at the time Plaintiffs purchased the same.” (Case No. CV2005-
0053, Oct. 26, 2007 JE). Moreover, the trial court held that the testimony would
be “speculative and more prejudicial than probative.” (Id.). Subsequently, on
-5-
Case No. 1-09-62
October 26, 2007, the Sauers filed their notice of voluntary dismissal under Civ.R.
41(A).
{¶10} On October 24, 2008, the Sauers re-filed their complaint, Case No.
CV2008-1528, against the same defendants as before and alleged similar claims of
contract, fraud, concealment, intentional infliction of emotional distress, and
violations of R.C. 5302.30 and the agency agreement. On May 26, 2009, the
Sauers filed a motion to transfer the original file into the newly filed case.1
{¶11} On August 31, 2009, Yocum Realty and Caprella filed a renewed
motion for summary judgment, which the Sauers responded to on October 5, 2009,
along with filing a motion to reconsider the testimony of Andrew Boester. On
October 15, 2009, Yocum Realty and Caprella filed their reply motion in support
of their motion for summary judgment and a memorandum in opposition to the
Sauers’ motion to reconsider Boester’s testimony. Thereafter, on October 21,
2009, the trial court granted “defendant’s renewed motion for summary
judgment,” and entered judgment in “their favor on all counts in their complaint.”
(Oct. 21, 2009 JE).
{¶12} The Sauers now appeal and raise the following four assignments of
error for our review.
1
We note that in the original motion to transfer Case No. CV2005-0053, the Sauers asked to transfer the
wrong case number (CV2004-0025) into Case No. CV2008-1528, while the trial court granted this
incorrectly stated motion, subsequently, the trial court has issued a corrected order to transfer which
indicates the appropriate prior case number, CV2005-0053.
-6-
Case No. 1-09-62
ASSIGNMENT OF ERROR NO. I
THE COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO A PARTY WHO DIDN’T REQUEST
SUMMARY JUDGMENT.
ASSIGNMENT OF ERROR NO. II
THE COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO ANY DEFENDANT.
ASSIGNMENT OF ERROR NO. III
THE COURT ERRED BY GRANTING ALL DEFENDANTS’
JOINT MOTION IN LIMINE TO PRECLUDE THE
TESTIMONY OF PLAINTIFFS’ EXPERT WITNESS,
ANDREW BOESTER.
ASSIGNMENT OF ERROR NO. IV
THE COURT ERRED BY RULING THAT
PLAINTIFFS/APPELLANTS WERE NOT ENTITLED TO
PUNITIVE DAMAGES.
{¶13} Before addressing the merits of the Sauers’ assignments of error, this
Court must first determine whether the judgment entry appealed from is a final
appealable order and is properly before this Court.
{¶14} Here, after the Sauers re-filed their complaint in Case No. CV2008-
1538, Yocum Realty and Caprella filed a renewed motion for summary judgment;
however, defendants Semer and BGG never filed a renewed motion for summary
judgment nor did they join Yocum Realty and Caprella’s motion for summary
judgment. The trial court ultimately found “that Defendant’s Motion is well
-7-
Case No. 1-09-62
taken” and “enter[ed] summary judgment in their favor on all remaining counts in
their Complaint.” (Oct. 21, 2009 JE). While the Sauers acknowledge that the trial
court’s judgment entry is unclear and problematic in their first assignment of error,
after reading the trial court’s judgment entry we find that it is not a final
appealable order, and that the matter is not properly before this Court to review.
{¶15} It is well established under Ohio law that a judgment of a trial court
will be considered a “final appealable order” only when it can satisfy the
requirements of R.C. 2505.02 and, if applicable, the requirements of Civ.R. 54(B).
Stewart v. Midwestern Indemn. Co. (1989), 45 Ohio St.3d 124, 543 N.E.2d 1200.
Moreover, this Court must raise jurisdictional issues sua sponte. Id. See, also, In
re Murray (1990), 52 Ohio St.3d 155, 159-60, 556 N.E.2d 1169, at fn. 2;
Whitaker-Merrell Co. v. Geupel Const Co. (1972), 29 Ohio St.2d 184, 186, 280
N.E.2d 922. Because this particular case involves multiple defendants and claims,
Civ.R. 54(B) is applicable. Civ.R. 54(B) states:
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 parties, shall not terminate the action as to any
of the claims or parties, and the order or other forms of decision
is subject to revision at any time before the entry of judgment
-8-
Case No. 1-09-62
adjudicating all the claims and the rights and liabilities of all the
parties.
Pursuant to this rule, it is clear that if a trial court’s written decision fully disposes
of fewer than all of the pending claims or parties in a civil action, then the
decision will not be considered a “final judgment” unless the trial court also makes
an express finding of no just reason for delay. Smith v. Wyatt, 5th Dist. Nos.
2003CA 00233, 2005-Ohio-371, ¶10. Absent such a finding, the decision is
interlocutory in nature, is not immediately appealable, and can be revised by the
trial court at any time prior to the final determination of the entire action. Id.
{¶16} After reviewing the trial court’s judgment entry, we agree with the
Sauers that the entry is confusing and unclear, and ultimately find that it is not a
final appealable order. First of all, the trial court does not specifically or clearly
identify the parties it is referring to in its summary judgment entry. At the
beginning and end of its judgment entry the trial court only refers to the parties as
“Defendant” and “Plaintiff,” despite the fact that there are multiple defendants and
plaintiffs in this case. (Oct. 21, 2009 JE). Because of this general language,
Semer and BGG claim that the trial court considered their motion for summary
judgment from the prior case (Case No. CV2005-0053), and as such, also
dismissed them from the current case (Case No. CV2008-1528). However, we
believe that we can at least find that the trial court’s order did not involve Semer
and BGG since it was only stated that, “[t]his matter came on for consideration
-9-
Case No. 1-09-62
upon Defendant’s Renewed Motion for Summary Judgment.” (Oct. 21, 2009
JE)(emphasis added). While Semer and BGG claim that the trial court considered
its motion for summary judgment from the prior case (Case No. CV2005-0053),
Caprella and Yocum Realty were the only parties that submitted a renewed motion
for summary judgment in this particular case. Therefore, we disagree with Semer
and BGG and believe that the trial court was not ordering a dismissal as to BGG
and Semer.
{¶17} Nevertheless, it is still not clear to this Court as to which
“Defendant” the trial court was referring to in its order. This is because the trial
court only referred to a singular defendant when it stated that “[t]his matter came
on for consideration upon Defendant’s Renewed Motion for Summary Judgment,
Plaintiff’s Brief in Opposition, and Defendant’s Reply,” despite the fact that there
were two defendants, Yocum Realty and Caprella, who filed a renewed motion for
summary judgment. (Oct. 21, 2009 JE)(emphasis added). Thus, we cannot find
for certain that the trial court granted summary judgment in favor of both Yocum
Realty and Caprella since the trial court only ordered summary judgment to a
singular defendant, even though there were two defendants to consider. Despite
this, even if we were to assume, based on the trial court’s discussion in its
judgment entry, that it was ordering a dismissal as to the claims against both
Yocum Realty and Caprella, since the judgment entry suggests that the trial court
-10-
Case No. 1-09-62
was only dealing with Yocum Realty and Caprella, and not Semer and BGG,
pursuant to 54(B), if the trial court wanted to grant summary judgment to only
selected defendants, it was required to put in the additional language rendering the
order final and appealable. See Smith, 2005-Ohio-371, at ¶10. However, the trial
court only stated that “[t]his is a final appealable Order,” and did not add the
additional language pursuant to Civ.R. 54(B).
{¶18} We further note that upon reading the judgment entry on its face, the
entry could be read as an order for partial summary judgment. Despite stating at
the end of its judgment entry that “the Court enters summary judgment in their
favor on all remaining counts in their Complaint,” the trial court only discussed
three of the claims alleged against Caprella and Yocum Realty and never
addressed the statutory non-disclosure nor the breach of contract issues. (Oct. 21,
2009 JE). While we acknowledge that a trial court does not have to offer any
explanation for why it is granting or denying the motion for summary judgment,
after reviewing all of the parties’ pleadings regarding the renewed motion for
summary judgment and the trial court’s judgment entry, we are unable to
determine whether the trial court intended its order to be a partial dismissal or an
entire dismissal, or even as to which party (or parties) the dismissal was ordered.
{¶19} Overall, after reviewing the trial court’s judgment entry, we find that
while the trial court may have intended to dismiss the case as to two of the
-11-
Case No. 1-09-62
defendants, the trial court failed to dismiss the complaint as to the other
defendants, thereby leaving the case pending and unresolved with no express
finding of “no just reason for delay.” Therefore, we find that the order appealed
from is not a final appealable order and is not properly before this Court to review.
{¶20} Accordingly, this appeal should be dismissed for lack of jurisdiction.
Appeal Dismissed
ROGERS and SHAW, J.J., concur.
/jlr
-12-