[Cite as White v. Emmons, 2011-Ohio-1745.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
MICHAEL WHITE, et al.,
:
Plaintiffs-Appellants, Case No. 10CA3340
:
vs.
:
BRENDA EMMONS et. al., DECISION AND JUDGMENT ENTRY :
Defendants-Appellees.
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANTS: Marie Moraleja Hoover, and R. Tracey Hoover, 621
Seventh Street, Portsmouth, Ohio 45662
COUNSEL FOR APPELLEES, Lynn Alan Grimshaw, 8055 Hayport Road,
BRENDA, JEFFREY & Wheelersburg, Ohio 45694
CHARLES EMMONS, JR.:
COUNSEL FOR APPELLEES, James Scott Smith, 538 Sixth Street,
ALBERT & JOANNA HYLAND: Portsmouth, Ohio 45662
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 3-31-11
ABELE, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment in favor of
Brenda Emmons, Jeffrey Emmons and Charles Emmons, Jr. (Emmons) and Albert and Joanna
Hyland (Hylands) on claims brought against them by Michael and Beulah White, plaintiffs below
and appellants herein.
SCIOTO, 10CA3340 2
{¶ 2} Appellants assign the following error for review:
“THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN
IT DECIDED AND ORDERED THAT THE APPELLEES
ESTABLISHED AN EASEMENT BY PRESCRIPTION AND AN
EASEMENT BY ESTOPPEL OVER APPELLANT’S
PROPERTY.” (Footnote omitted.)
{¶ 3} The parties are contiguous landowners in Union Township, Scioto County.
Appellants commenced the instant action on August 3, 2007 and alleged that appellees trespassed
over a “path” on their property.1 They asked, inter alia, (1) that title to that area be quieted in
their favor, and (2) $25,000 in damages. Appellees denied liability and alleged that the path is a
right-of-way over appellants’ property and provides access to their land. The Emmons and
Hylands also counterclaimed and alleged various theories by which they, or their predecessors in
title, established an easement over the path. They requested the court to recognize or “establish”
that easement over the servient estate, together with $25,000 in damages and a permanent
injunction to bar appellants from interfering with their use of that easement. Appellants denied
those claims.
{¶ 4} After a bench trial, the trial court issued an extensive Decision and Judgment
Entry. Despite a number of references to the right-of-way as a “road” or “roadway,” both in
deeds and from witness testimony, the court found no evidence in the chains of title that an
express easement was granted over appellants’ property. As to claims of an easement by
necessity, the court found that the evidence adduced at trial did not support such a claim for any
of the appellees. The court did, however, find that the Hylands established an easement by
1
The Hylands were not originally part of this action. Allen and Kelly Wooten were defendants on the first
complaint, but in 2008 sold their property to the Hylands who then became parties.
SCIOTO, 10CA3340 3
adverse possession as the evidence adduced at trial revealed continual use of the path or
easement by their predecessors in title “for over sixty years.”
{¶ 5} No such use was established as to the Emmons property, the trial court ruled, and
thus they could not prove an easement by prescription. However, evidence was adduced to
show that appellants encouraged both sets of appellees to expend funds to maintain the
right-of-way and that appellants communicated with the parties representing to appellees, or their
predecessors in title, that they had an easement over appellants’ property. The trial court found
sufficient evidence to establish an easement by estoppel over the servient estate for both the
Emmons and the Hylands.
{¶ 6} Additionally, no reference appears in the entry regarding appellees’ demands for
compensatory damages or the permanent injunction against appellants. The trial court did find,
however, “no just cause for delay.” This appeal followed.
{¶ 7} Before we can review the merits of this appeal, we must first decide a threshold
jurisdictional issue. Appellate courts have jurisdiction to review the final orders of inferior courts
within their districts. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2501.02. A final
order is one that affects a substantial right and, in effect, determines the action. R.C.
2505.02(B)(1). If an order is not final and appealable, then an appellate court has no jurisdiction
to review the matter and it must be dismissed. See General Acc. Ins. Co. v. Ins. Co. of N.
America (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266. If the parties involved in the appeal do
not raise this jurisdictional issue, appellate courts must raise it sua sponte. See Chef Italiano
Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64, syllabus; Whitaker-Merrell
v. Geupel Constr. Co. (1972), 29 Ohio St.2d 184, 186, 280 N.E.2d 922.
SCIOTO, 10CA3340 4
{¶ 8} In the case sub judice, the judgment being appealed addresses one of three
remedies demanded in the two appellees’ counterclaims. The judgment does establish the
easement, but does not resolve appellees’ prayers for damages or their demand for a permanent
injunction. Therefore, the action is not “determined” and we do not have a final appealable
order.
{¶ 9} We recognize that the judgment includes the Civ.R. 54(B) finding of “no just
reason for delay.” That inclusion does not, however, cure the defect. Civ.R. 54(B) addresses
claims for relief, rather than the component parts of those claims. Damages are a remedy for a
claim, but not a claim in and of themselves. A judgment that determines other parts of a claim,
but not damages, does not constitute a final appealable order. See e.g. Dickson & Campbell,
L.L.C. v. Marshall, Cuyahoga App. No. 90963, 2010-Ohio-2878, at ¶10; Eastley v. Volkman,
Scioto App. No. No. 08CA3223, 2009-Ohio-522, at ¶17. Similarly, a “permanent injunction”
(like damages) is regarded as a remedy rather than a claim. See e.g., Foster v. Wickliffe, 175
Ohio App.3d 526, 888 N.E.2d 422, 2007-Ohio-7132, at ¶87; State ex rel. Bardwell v. Cuyahoga
Cty. Bd. of Commrs., Cuyahoga App. No. 93058, 2009-Ohio-5573, at ¶31; Smead v. Graves,
Summit App. No. No. 23770, 2008-Ohio-115, at ¶9. Thus, Civ.R. 54(B) has no application and
does not render the judgment either final or appealable.
{¶ 10} Therefore, until the two remedy requests are resolved, we have no jurisdiction to
consider this appeal. Accordingly, we hereby dismiss this appeal.
APPEAL DISMISSED.
SCIOTO, 10CA3340 5
JUDGMENT ENTRY
It is ordered that the appeal be dismissed and that appellees recover of appellants costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, P.J. & Kline, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
SCIOTO, 10CA3340 6
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.