[Cite as John Roberts Mgt. Corp. v. Village of Obetz, 2013-Ohio-5395.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
John Roberts Management Corporation, :
Appellant-Appellee, :
No. 13AP-259
v. : (C.P.C. No. 09CVF-07-11019)
Village of Obetz, Ohio, : (REGULAR CALENDAR)
Appellee-Appellant. :
D E C I S I O N
Rendered on December 10, 2013
Kurt W. Sahloff, for appellee.
Isaac Wiles Burkholder & Teetor, LLC, Eugene L. Hollins,
and Brian M. Zets, for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Appellee-appellant, Village of Obetz ("village"), appeals from the
February 26, 2013 decision of the Franklin County Court of Common Pleas, which issued
a decision in favor of appellant-appellee, John Roberts Management Corporation
("JRMC"), and remanded the cause for further hearings before the Village Planning and
Zoning Commission ("commission").
I. BACKGROUND
{¶ 2} We first heard an appeal in this matter in the case of John Roberts Mgt. Co.
v. Village of Obetz, 188 Ohio App.3d 362, 2010-Ohio-3382 (10th Dist.). In our decision,
we reversed the decision of the trial court, which dismissed JRMC's appeal of the
commission's decision for lack of subject-matter jurisdiction. On remand, we instructed
No. 13AP-259 2
the trial court to determine several issues, and on November 7, 2012, the trial court issued
a "Decision and Entry and Order," requiring the parties to file briefs on the merits and
ordered the village to file the transcript of proceedings of the hearing before the
commission.
{¶ 3} Based on the parties' briefs, the trial court issued a decision on February 26,
2013. In its decision, the trial court noted the record demonstrates that JRMC admitted it
was in violation of Obetz Village Ordinance 1175.12(a)(2), entitled "Abandoned Signs," but
that "there are no facts upon which the [village] can base its determination regarding the
issue as to whether the signs in question are a public nuisance." (Feb. 26, 2013 Decision
and Entry, 6.) Relying on Marathon Oil Co. v. Bd. of Zoning Adjustment, 44 Ohio App.2d
402 (10th Dist.1975), the trial court held that "under Ohio law, the Village of Obetz cannot
conclusively presume that merely by virtue of the fact that property is abandoned, that the
signs are inherently a public nuisance." (Feb. 26, 2013 Decision and Entry, 6.)
{¶ 4} The trial court did not grant judgment to either party but, instead, reversed
the decision of the commission, holding the village "did not give [JRMC] due process to be
heard on the issue of whether the signs were, in fact, a public nuisance" and remanded the
case for the "Village of Obetz" to conduct a factual hearing and determine "whether the
signs in question are a public nuisance." (Feb. 26, 2013 Decision and Entry, 6, 7.)
{¶ 5} This appeal followed, and on November 19, 2013, this court instructed the
parties to file simultaneous briefs to address whether "the order of the trial court, which
reversed the decision of the Village of Obetz Planning and Zoning Commission and
remanded the case for the commission to conduct a factual hearing and determine
'whether the signs in question are a public nuisance,' [is] a final appealable order?"
(November 19, 2013 Journal Entry.) The village argues in their supplemental brief that,
under R.C. 2505.02(B)(1) and/or (3), the trial court's decision is a final, appealable order.
JRMC asserts the trial court's decision did not prevent a future judgment on the merits
against either party and, therefore, is not a final, appealable order.
II. ASSIGNMENTS OF ERROR
{¶ 6} The first three assignments of error are confined to the trial court's
November 7, 2012 interlocutory decision, which determined that JRMC had properly filed
a praecipe. The fourth and fifth assignments of error are confined to the trial court's
No. 13AP-259 3
February 26, 2013 decision on the merits, also discussed above. Accordingly, the village
presents the following assignments of error for our review:
[I.] The trial court erred when it determined JR Management
filed its praecipe with the Village of Obetz Planning and
Zoning Commission by merely attaching a copy of the
praecipe to its October 1, 2009 memo contra and serving the
memo contra on the Village's attorney.
[II.] The trial court erred when it determined JR
Management timely filed a praecipe, and then determined the
Village of Obetz was required to file a transcript of the
underlying administrative proceedings.
[III.] The trial court erred when it failed to consider the
impact of the Village of Obetz not having to provide a
transcript.
[IV.] The trial court erred when it determined the Village of
Obetz had an obligation to provide JR Management with the
opportunity to be heard on the issue of whether the signs in
question were a public nuisance because they were
abandoned, and then remanded the matter to the Village of
Obetz Planning and Zoning Commission.
[V.] The trial court erred when it failed to address whether
the Planning and Zoning Commission's decision was
arbitrary, capricious, unreasonable or unsupported by a
preponderance of the substantial, reliable, and probative
evidence, and then determine it was not.
III. DISCUSSION
{¶ 7} Before addressing the merits of the village's assignments of error, we must
first address whether the February 2, 2013 Decision and Entry of the Franklin County
Court of Common Pleas is a final, appealable order.
{¶ 8} "Pursuant to Ohio Constitution, Article IV, Section 3(B)(2), this court's
appellate jurisdiction is limited to the review of final orders of lower courts." Cooper
State Bank v. Columbus Graphics Comm., 10th Dist No. 11AP-1069, 2012-Ohio-3337, ¶ 4;
Best v. Ohio State Real Estate Comm., 10th Dist. No. 13AP-677, ¶ 2 (Nov. 19, 2013)
(memorandum decision). "A final order * * * is one disposing of the whole case or some
separate and distinct branch thereof." Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303,
306. "A trial court's order is final and appealable only if it satisfies the requirements of
No. 13AP-259 4
R.C. 2505.02 and, if applicable, Civ.R. 54(B)." Cooper State Bank at ¶ 4, citing Denham
v. New Carlisle, 86 Ohio St.3d 594, 596 (1999).
{¶ 9} When determining whether a judgment or order is final and appealable, an
appellate court engages in a two-step analysis. "First, we must determine if the order is
final within the requirements of R.C. 2505.02. Second, if the order satisfies R.C. 2505.02,
we must determine whether Civ.R. 54(B) applies and, if so, whether the order contains a
certification that there is no just reason for delay." Id. at ¶ 5, citing Gen. Acc. Ins. Co. v.
Ins. Co. of N. Am., 44 Ohio St.3d 17, 21 (1989) . Civ.R. 54(B) does not alter the
requirement that an order or judgment must be final before it is appealable. Id.
{¶ 10} R.C. 2505.02(A) defines a final order and provides, in pertinent part:
(1) "Substantial right" means a right that the United States
Constitution, the Ohio Constitution, a statute, the common
law, or a rule of procedure entitles a person to enforce or
protect.
(2) "Special proceeding" means an action or proceeding that
is specially created by statute and that prior to 1853 was not
denoted as an action at law or a suit in equity.
(3) "Provisional remedy" means a proceeding ancillary to an
action, including, but not limited to, a proceeding for a
preliminary injunction, attachment, discovery of privileged
matter, suppression of evidence, a prima-facie showing
pursuant to section 2307.85 or 2307.86 of the Revised Code, a
prima-facie showing pursuant to section 2307.92 of the
Revised Code, or a finding made pursuant to division (A)(3) of
section 2307.93 of the Revised Code.
(B) An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of
the following:
(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;
(3) An order that vacates or sets aside a judgment or grants a
new trial;
No. 13AP-259 5
(4) An order that grants or denies a provisional remedy and
to which both of the following apply:
(a) The order in effect determines the action with respect to
the provisional remedy and prevents a judgment in the action
in favor of the appealing party with respect to the provisional
remedy.
(b) The appealing party would not be afforded a meaningful
or effective remedy by an appeal following final judgment as
to all proceedings, issues, claims, and parties in the action.
{¶ 11} In the present case, the trial court held "there are no facts upon which the
[village] can base its determination regarding the issue as to whether the signs in question
are a public nuisance." (Feb. 26, 2013 Decision and Entry, 6.) The trial court reversed the
decision of the commission, holding the village "did not give [JRMC] due process to be
heard on the issue of whether the signs were, in fact, a public nuisance" and remanded the
case for the "Village of Obetz" to conduct a factual hearing and determine "whether the
signs in question are a public nuisance." (Feb. 26, 2013 Decision and Entry, 6, 7.)
{¶ 12} "As a general rule, a remand * * * to an administrative agency for findings of
fact and conclusions of law is not a final order." Best at ¶ 4, citing Cooper State Bank at ¶
7. The village argues, because the trial court's decision addressed JRMC's constitutional
claims and "granted a de novo trial," the order was final and appealable under R.C.
2505.02(B)(1) and/or (3), and the general rule does not apply.
{¶ 13} A review of the record reveals the trial court's February 26, 2013 decision
does not dispose of the whole case or a separate and distinct branch of this case in a
manner that "prevents a judgment" as either party is still capable of prevailing on the
merits. R.C. 2505.02(B)(1). Nor did the trial court order, vacate or set aside a judgment
or grant a new trial. Instead, the trial court remanded the case for "the sole purpose" of a
factual hearing to determine if the signs constituted a public nuisance. (Feb. 26, 2013
Decision and Entry, 7.)
{¶ 14} Based upon the foregoing, we find the order from which appellant seeks to
appeal is not a final, appealable order. Therefore, we lack jurisdiction to hear this appeal.
No. 13AP-259 6
IV. CONCLUSION
{¶ 15} Because we have concluded jurisdiction is lacking in this case, we sua
sponte dismiss the appeal.
Appeal sua sponte dismissed.
BROWN and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, formerly of the Third Appellate
District, assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
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