Inverness Gardens, L.L.C. v. Maher

[Cite as Inverness Gardens, L.L.C. v. Maher, 2014-Ohio-3669.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY

INVERNESS GARDENS, LLC,

PLAINTIFF-APPELLEE,

v. CASE NO. 5-13-39

LINDSEY MAHER,

DEFENDANT-APPELLANT.
-and- OPINION

ROBERT W. MAURER, ET AL.

DEFENDANTS-APPELLEES.

Appeal from Hancock County Common Pleas Court
Trial Court No. 11 CV 0218

Appeal Dismissed

Date of Decision: August 25, 2014

APPEARANCES:

Daniel F. Maynard for Appellant

Scott T. Coon for Appellee, Inverness Gardens, LLC
Case No. 5-13-39

ROGERS, J.

{¶1} Defendant-Appellant, Lindsey Maher, appeals the judgment of the

Court of Common Pleas of Hancock County, awarding Plaintiff-Appellee,

Inverness Gardens, LLC (“Inverness”), money damages for unpaid rent and

utilities. On appeal, Maher contends that the trial court erred by: (1) implying a

rental agreement between Maher and Inverness; (2) failing to find that said rental

agreement violated the statute of frauds; (3) not finding that Inverness failed to

mitigate damages; (4) failing to require Inverness to pay court costs; (5) failing to

award attorney fees to Maher; (6) failing to award compensation for additional

hours worked by Maher in her employment with Inverness; and (7) improperly

limiting Maher’s ability to cross examine a witness. For the reasons that follow,

we dismiss the appeal for lack of a final, appealable order.

{¶2} The following facts are not in dispute. Maher began working for

Greenbrier, the parent company of Inverness, in 2007. In 2008, she became a

manager and in March or April of 2009, she began working as a resident manager

for Inverness and moved into one of the apartments on the property at a discounted

rate. She never signed a lease for this apartment, but agreed to a monthly amount

in rent and paid it regularly. In October of 2009, Maher moved to a second,

smaller unit at Inverness and stayed there until September of 2010, when she was

-2-
Case No. 5-13-39

fired as a resident manager. At no time did she pay rent for the second unit or

have a written lease.

{¶3} On February 16, 2011, Inverness filed a complaint in the Findlay

Municipal Court, alleging two claims against Maher: breach of her oral lease and

fraud. Inverness sought damages in the amount of $14,900. On April 12, 2011,

Maher filed her answer, which included counterclaims against Inverness and a

cross-complaint1 against two of its owners, Robert Maurer (“Robert”) and Patricia

Maurer (“Patricia”) for failure to pay minimum wage, wrongful withholding of a

paycheck, defamation, and abuse of process. Maher claimed damages in excess of

$25,000. As this amount exceeded the jurisdictional limit of the Findlay

Municipal Court, the matter was transferred to the Hancock County Court of

Common Pleas on April 14, 2011.

{¶4} On May 2, 2011, Robert and Patricia filed a motion to dismiss them as

parties, arguing that they could not be personally liable for the actions of

Inverness. On August 1, 2011, Maher filed an amended answer, which added a

claim of civil conspiracy and also asserted all of the claims against a new party,

1
We note that the Ohio Rules of Civil Procedure do not have a provision regarding the filing of a cross-
complaint. Instead, Maher asserted a counterclaim against Inverness and joined Robert and Patricia as
defendants to the counterclaim under Civ.R. 13(H). “Parties may be dropped or added by order of the court
on motion of any party * * *.” Civ.R. 21. However, a party waives the defense of misjoinder when they do
not raise the objection at the trial court level. D.H. Overmyer Telecasting Co., Inc. v. Am. Home Assur.
Co., 29 Ohio App.3d 31, 34 (8th Dist. 1986). Further, where a party is properly joined to an action a
“mislabeling is of no substantive consequence.” ABN Amro Mtge. Group, Inc. v Arnold, 2d Dist.
Montgomery No. 20530, 2005-Ohio-925, ¶ 20. While Maher did not join the Maurer’s by motion to the
court, any argument of improper joinder was never raised and was therefore waived. As a result, the
Maurers were properly joined, and the mislabeling of the action as a cross-complaint is inconsequential.

-3-
Case No. 5-13-39

Elizabeth Maurer-Iott (“Elizabeth”) (collectively with Robert and Patricia “the

Maurers”). Inverness and the Maurers filed their answers to Maher’s claims on

August 23, 2011. The Maurers also filed a motion to dismiss them as defendants

on August 23, 2011. On September 9, 2011, Maher filed a motion to dismiss the

action against her, including an argument that the fraud claim against her was not

plead with sufficient particularity as required under Civ.R. 9(B). On September

22, 2011, the trial court denied Maher’s motion, and found that “fraud was pleaded

with more than enough particularity in this matter * * *.” (Docket No. 38, p. 3).

{¶5} On September 26, 2011, the trial court denied the Maurers’ motion to

dismiss them as parties. Specifically, the court stated that Maher had

alleged, in her Cross-Claim,2 that Robert A. Maurer, Patricia
Maurer, and Elizabeth Iott acted as individuals while wrongfully
withholding Defendant’s last paycheck, failing to pay Defendant
minimum wage, defaming Defendant, enacting a civil conspiracy
against Defendant, and abusing the legal process to harm Defendant.
As such, Cross-Defendants are not shielded from liability under R.C.
1705(B) and may be subject to liability dependent, of course on the
facts later elicited.

(Emphasis sic.) (Docket No. 39, p. 2-3). The parties also filed numerous

discovery motions that were ruled upon by the trial court.

2
We note that Maher titled her action against the Maurers as a cross-complaint, and not a cross claim.
Under the Ohio Rules of Civil Procedure, a cross claim is filed “by one party against a co-party * * * that is
the subject matter either of the original action or of a counterclaim therein * * *.” Civ.R. 13(G). The
Maurers were not a co-party with Maher in the original action. Instead, Maher joined the Maurers as
defendants to her counterclaim against Inverness under Civ.R. 13(H). However, we elect to keep intact the
wording chosen by the trial court.

-4-
Case No. 5-13-39

{¶6} On September 9, 2013, Maher dismissed Patricia and Elizabeth as

parties and dismissed the abuse of process and civil conspiracy claims. Robert

remained a party. That same day, the matter proceeded to a bench trial. Before

opening statements, Maher notified the court of the voluntary dismissals that had

been filed earlier that day. The court verified that Inverness and the Maurers had

received those documents. No other issues were brought to the court’s attention

and all parties stated that they were ready to proceed on their claims. Inverness,

after stating that it had no preliminary matters to address, discussed the fraud

claim during opening statements.

{¶7} Inverness called Maher as its first witness and asked questions relating

to both of its claims. Maher testified that part of her duties as a resident manager

for Inverness included collecting rent and subsequently tracking rental payments

on tenant cards and on a ledger sheet. If a person failed to pay their rent, they

were left off of the ledger sheet, which only detailed information regarding

payments. She was also required to create a rent roll, detailing whether each

apartment was occupied or vacant. For the occupied apartments, the rent roll

contained detailed information regarding the tenants, including their names as well

as the amount of their monthly rent. Tenants appeared on the rent roll regardless

of whether they paid rent for that month.

-5-
Case No. 5-13-39

{¶8} Maher was asked whether she followed company policies and whether

she collected rent from her friends living in the apartment complex. She was also

asked whether she filled out tenant cards incorrectly and why she reported some

people as delinquent to Inverness while failing to report others. She testified that

she did have friends at the apartment complex and that she did not report some of

these friends as delinquent to Inverness, but could not remember why. She also

stated that she never accepted cash for rent, and that a tenant, Eric Sommers, had

never paid rent for a townhouse he occupied on the property. Inverness next

called Sommers, who testified that he had given rental payments in cash to Maher

for the townhouse he occupied. He also testified that he had entered into a

payment agreement with Inverness to pay back the rent that he owed.

{¶9} Lindsay Bauer was called as the next witness. She testified that she

was Maher’s friend. She also testified that she did not pay rent for almost a year,

but that Maher had both notified her of her delinquency and stated that if she

didn’t pay rent she might be evicted. Bauer stated that “it was my mistake I didn’t

pay my rent.” Trial Tr., Vol. I, p. 166. She also testified that she had entered into

a payment plan with Inverness. Inverness then called Patricia to the stand, who

testified as to how Maher was hired and trained. She also testified that she noticed

discrepancies in the amount of money that Inverness was generating, and asked

Elizabeth to investigate.

-6-
Case No. 5-13-39

{¶10} Elizabeth then testified, providing greater detail as to the hiring and

training of Maher. She testified that Maher had falsified records and not followed

company procedures for collecting rent. As its last witness, Inverness called

Robert to the stand, who testified as to company policies and that he “couldn’t

understand in my own mind why [Maher] would be giving apartments away to

friends or not friends, and this many apartments.” Id. at p. 245. He also testified

that he had sent Maher a letter asking her to pay her rent or he may contact the

prosecutor to investigate.

{¶11} As her first witness, Maher called David Maurer, another owner of

Inverness, to the stand to rebut the fraud claims. Specifically, when Maher was

asked by the trial court why she was reviewing other leases with the witness, she

explained “in order to make a fraud charge, Your Honor, there has to be

reasonable reliance.” Trial Tr., Vol. II, p. 292. Maher also took the stand a

second time to discuss her claims against the other parties. After her testimony,

Maher rested.

{¶12} During closing statements, Inverness stated “[o]ur claim is focused

and limited to the am ount of rent that she failed to pay us.” Id. at p. 329. At the

conclusion of the closing statement, the following dialogue took place:

TRIAL COURT: [Inverness], you are proceeding on your fraud
claim or not?

-7-
Case No. 5-13-39

INVERNESS: No. We’re in the process of collecting rent from a
number of people. And so I think that is an ever changing number.
There’s no doubt in our mind that fraud was committed. Eric
Sommers testified that she actually pocketed money that he gave her
for rent. But that number is fluid. We just can’t give you a number
that I think the Court can trust in light of the fact that we continue to
collect from the other people that did not pay rent. So we’re simply
asking for the rent that is owed us.

TRIAL COURT: Because that was going to be my question.
[Maher] admitted to me that in fact she did falsify documents at her
employment. And you have other evidence you’ve presented, which
I haven’t decided whether I believe or not believe. I have to go
through credibility assessment. But let’s just assume for the sake of
argument some of the basic elements of fraud that you’ve
established. The issue that I wrote down that I was going [to] ask
you was, because of the unique nature of this case, as you
mentioned, the efforts to collect against these other peoples [sic],
that your mitigation efforts make it difficult for me to assess what
damages that [Maher] might have owed you if in fact she committed
fraud. So you’re going to attempt to collect that through these other
cases and you don’t want me to decide whether or not she committed
fraud then.

INVERNESS: That is correct, Your Honor. I think the Court may
need to make that decision in considering [Maher’s] action for
defamation.

Id. at p. 332-333.

In response to this dialogue, Maher asked:

MAHER: Just to be clear, Your Honor, is the fraud claim being
withdrawn? Is that what I am hearing or no?

INVERNESS: As I indicated, it’s part of our defense. I don’t know
if I can withdraw it, but indicating to the Court that we’re not
requesting the Court award us any damages.

TRIAL COURT: All right.

-8-
Case No. 5-13-39

INVERNESS: So I believe the Court can actually find that she
defrauded us, but award us no damages.

TRIAL COURT: Well I guess I could if I was required to analyze
the evidence I could, but ultimately you wouldn’t prevail on your
cause of action, but yes, that’s possible. All right.

Id. at p. 334.

{¶13} When discussing the fraud claim during closing statements, Maher

was interrupted by the trial court, which stated:

TRIAL COURT: [Maher], I think [Inverness has] withdrawn that.

MAHER: I believe they said they wanted to go forward with the
fraud as a cause of action as approved. I don’t think they could
make the fraud claim in any regard, Your Honor. I don’t mean to
overly hash it. I did write this out last night.

TRIAL COURT: I thought [Inverness] - -

MAHER: I will move past it, Your Honor.

Id. at p. 342-343.

After closing arguments, and before ruling, the trial court stated

as I understand it, the issues you’d like me to resolve, [Inverness],
would be count one of your claim. The rents due there. And you
wanted me to consider the issues of fraud, not to pursue damages,
but to - - but as in consideration of a defense that you would be
raising to [Maher’s] claims, correct?

INVERNESS: Yes.

TRIAL COURT: And [Maher], * * * [y]ou’re asking me then to
reject, which I believe they’ve withdrawn technically the fraud claim
as it relates to your client.

-9-
Case No. 5-13-39

Id. at p. 356-357. The court then left the record open to allow the parties to brief

the issue regarding Maher’s wage claims.

{¶14} The trial court journalized a decision on October 1, 2013, detailing

its conclusions of law and describing the attendant facts. On October 7, 2013,

Maher moved the court to “issue, in writing, conclusions of fact separately from

the conclusions of law * * *.” (Docket No. 92, p. 1). The trial court denied the

motion on October 11, 2013. On November 21, 2013, the trial court issued its

judgment entry, which incorporated its prior journalized decision (collectively

“judgment entry”).

{¶15} In the introduction to its judgment entry, the trial court stated that the

“matter comes before the court for ruling on a complaint filed by the Plaintiff

Inverness Gardens and a counterclaim and cross-claim filed by the Defendant

Linsday Maher.” (Docket No. 91, p.1). The entry states that the complaint filed

by Inverness “alleges that Maher, a resident manager at Inverness, failed to pay

rent and committed acts of fraud.” (Docket No. 91, p. 1). The entry goes on to

state that “[a]fter the parties presented the evidence [Inverness] advised the Court

that it was no longer seeking damages on its fraud claim, but still wished to use the

evidence of Maher’s fraudulent conduct as a defense to Maher’s counterclaim for

defamation.” (Id. at p. 2).

-10-
Case No. 5-13-39

{¶16} As its conclusions of law, the entry specifically addresses back rent,

utilities, and unit expenses, all in regards to the claim by Inverness of breach of an

oral lease. The fraud claim is not discussed. When discussing Maher’s

defamation claim, the trial court stated

there is sufficient evidence on the record to conclude that Maher had
poor job performance at Inverness and that Maher’s conduct violated
company policy. Maher has admitted to her poor job performance,
falsifying tenant cards, failing to report delinquent tenants, and
failing to pay rent. Despite there being no record of written
company policies which would bind Maher there is no doubt that
such conduct would be violative of company policy.

(Id. at p. 7). While additional reasons for why the defamation claim failed were

discussed, none of them were related to fraud. Further, while the entry states that

Robert wrote one of the allegedly defamatory letters, the claim was only discussed

as being against Inverness, and not as to Robert individually.

{¶17} The trial court then found that Maher had proven her minimum wage

and withholding a paycheck claims. As part of the recovery for a minimum wage

claim, Maher was entitled to liquidated damages and attorney fees. However, the

court found that Maher had failed to provide the proper evidence required to

establish the amount of her attorney fees, and thus was not entitled to recover

them. Again, this entire claim was discussed in relation to Inverness, without

mentioning Robert.

-11-
Case No. 5-13-39

{¶18} In its conclusion, the trial court calculated the amounts that Inverness

was entitled to as back rent from Maher. Further, it stated that “Maher has proven

by a preponderance of the evidence that she was entitled to wages for hours

worked for which she was not compensated in the amount of $105.00.” (Id. at p.

15). The decision, however, does not state whether it is Inverness that is liable for

this amount or Robert. The decision also states the amount that Maher was

entitled to for her other wage claims, and specifies that these are against Inverness.

It went on to calculate the set offs that each party was entitled to, and again denied

Maher’s attorney fees for the minimum wage claim. The court found that “[s]ince

each party has a prevailing claim in this matter, the Court finds that costs should

be divided equally between the parties.” (Id. at p. 16). The judgment entry stated

that “THIS IS A FINAL APPEALABLE ORDER.” (Emphasis sic.) (Docket No.

94, p. 2).

{¶19} It is from this judgment that Maher timely filed this appeal,

presenting the following assignments of error for our review.

Assignment of Error No. I

THE TRIAL COURT ERRED IN FINDING SUFFICIENT
EVIDENCE TO IMPLY A CONTRACT BETWEEN
APPELLANT MAHER AND APPELLEE INVERNESS
GARDENS LLC WHERE NO EVIDENCE OF DURATION OR
OTHER ESSENTIAL TERMS WAS PRESENTED.

-12-
Case No. 5-13-39

Assignment of Error No. II

THE TRIAL COURT ERRED IN FINDING AN ORAL LEASE
BETWEEN APPELLEE AND APPELLANT AND FAILING
TO ALSO FIND THAT ANY SUCH ORAL AGREEMENT
VIOLATED THE STATUTE OF FRAUDS.

Assignment of Error No. III

THE TRIAL COURT ERRED IN FAILING TO FIND
APPELLEE INVERNESS GARDENS FAILED TO MITIGATE
THEIR DAMAGES WHERE APPELLANT NEVER MADE
ANY RENTAL PAYMENTS TO INVERNESS AND
APPELLEE INVERNESS WAS IN POSSESSION OF THE
RECORDS DEMONSTRATING APPELLANT’S FAILURE
TO PAY ANY RENTAL PAYMENTS.

Assignment of Error No. IV

THE TRIAL COURT ERRED IN FAILING TO ORDER
APPELLEE INVERNESS GARDENS LLC AND ROBERT
MAURER TO PAY APPELLANT LINDSEY MAHER’S
COURT COSTS WHERE MAHER’S COSTS WERE
SIGNIFICANTLY MORE THAN HALF THE OVER-ALL
COURT COSTS AND APPELLEE ROBERT MAURER HAD
NO PREVAILING CLAIM.

Assignment of Error No. V

THE TRIAL COURT ERRED IN FAILING TO ORDER
APPELLEE INVERNESS GARDENS LLC AND ROBERT
MAURER TO PAY APPELLANT LINDSEY MAHER’S
REASONABLE ATTORNEY FEES OR IN THE
ALTERNATIVE TO ORDER A SEPARATE HEARING
REGARDING ATTORNEY FEES FOLLOWING THE
ESTABLISHMENT OF LIABILITY ON THE WAGE CLAIM
WHERE APPELLANT TESTIFIED THAT SHE HAD
INCURRED ATTORNEY FEES AND COSTS IN PURSUIT OF
HER WAGE CLAIMS AGAINST INVERNESS.

-13-
Case No. 5-13-39

Assignment of Error No. VI

THE TRIAL COURT ERRED IN FAILING TO FIND
APPELLANT MAHER PRESENTED SUFFICIENT
EVIDENCE TO ESTABLISH ADDITIONAL
UNCOMPENSATED HOURS WORKED WERE APPELLEE
KNEW OR SHOULD HAVE KNOWN OF THE HOURS
APPELLANT MAHER WAS WORKING IN ADDITION TO
THOSE PAID.

Assignment of Error No. VII

THE TRIAL COURT ERRONEOUSLY LIMITED THE
CROSS-EXAMINATION OF INVERNESS MEMBER, DAVID
MAURER BY PREVENTING MAHER FROM
THOROUGHLY CROSS EXAMINING DAVID MAURER
INCLUDING ABOUT REPRESENTATIONS MADE TO
OTHER COURTS THAT LEASES EXIST WHICH DID NOT.

{¶20} Before addressing the assignments of error, we must determine

whether we have subject matter jurisdiction to address the issues raised on appeal.

“A demonstration of a lack of subject-matter jurisdiction is fatal to any action * *

*.” Bunting v. Estate of Bunting, 5th Dist. Stark Nos. 2008CA00173,

2008CA00199, 2009-Ohio-3136, ¶ 13. While not raised by either party, the issue

of subject-matter jurisdiction may be raised, sua sponte, by a court at any stage in

the proceeding, and for the first time on appeal. Fox v. Eaton Corp., 48 Ohio

St.2d 236, 238 (1976), overruled on other grounds by Manning v. Ohio State

Library Bd., 62 Ohio St.3d 24 (1991), paragraph one of the syllabus; see also

Cathey v. Cassens Transport Co., 3d Dist. Union No. 14-99-35, 2000 WL 126654,

-14-
Case No. 5-13-39

*5 (Feb. 4, 2000). Appellate courts are “bound to raise any jurisdictional

questions not raised by the parties.” Levinsky v. Boardman Twp. Civ. Serv.

Comm., 7th Dist. Mahoning No. 04 MA 36, 2004-Ohio-5931, ¶ 26; see also State

v. Stults, 195 Ohio App.3d 488, 2011-Ohio-4328, ¶ 11 (3d Dist.). The Ohio Court

of Appeals is only vested with subject matter jurisdiction over final and appealable

orders. Ohio Constitution, Article IV, Section 3(B)(2). Therefore, before we can

reach the merits of Maher’s assignments of error, we must determine whether the

trial court’s judgment entry is a final, appealable order.

{¶21} “An order of a court is a final appealable order only if the

requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met.”

State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, ¶ 5.

Civ.R. 54(B) applies in multiple-claim or multiple-party actions
where fewer than all the claims or fewer than all the parties are
adjudicated. If a court enters final judgment as to some but not all of
the claims and/or parties, the judgment is a final appealable order
only upon the express determination that there is no just reason for
delay.

General Acc. Ins. Co. v. Ins. Co. of North America, 44 Ohio St.3d 17, 22 (1989).

Without this determination, a judgment that addresses fewer than all claims is not

a final appealable order. Gruber v. Cheney, 3d Dist. Marion No. 9-10-16, 2010-

Ohio-2827, ¶ 22. While the judgment entry in the case sub judice states that the

decision is a final appealable order, it does not contain a determination that there is

-15-
Case No. 5-13-39

no just reason for delay. Therefore, if the judgment entry disposes of fewer than

all of the claims, it is not a final appealable order.

Fraud Claim

{¶22} The judgment entry states that Inverness wished not to proceed on

damages for fraud, but that the claim would be considered as a defense to Maher’s

defamation claim. However, Inverness’s complaint alleged two causes of action:

breach of contract and fraud. Whether evidence of fraud constituted a defense

against Maher’s defamation claim does not otherwise eliminate fraud as a claim

for relief. Each separate claim for relief must be addressed for a judgment entry to

be a final appealable order. While the decision discusses Maher’s allegedly

fraudulent conduct in its analysis of the defamation claim, nothing in the decision

acted as an adjudication of the merits of the fraud claim. Therefore, the fraud

claim is still pending unless it was otherwise properly dismissed.

{¶23} “The commencement of trial cuts off a plaintiff’s ability to

unilaterally dismiss claims without prejudice.” Schwering v. TRW Vehicle Safety

Sys., Inc., 132 Ohio St.3d 129, 2012-Ohio-1481, ¶ 21. “A plaintiff may still

request a dismissal during trial but may not do so unilaterally.” Id. at ¶ 22. A

claim can only be withdrawn after a trial commences by stipulation of all of the

parties or by a motion for a court ordered dismissal pursuant to Civ.R. 41(A)(2).

Id. at ¶ 22; Chadwick v. Barba Lou, Inc., 69 Ohio St.2d 222, 229 (1982). If the

-16-
Case No. 5-13-39

withdrawal is by motion, the trial court will “determine the conditions to impose to

protect the other parties and to ensure that they are not prejudiced upon refiling.”

Schwering at ¶ 22.

{¶24} Here, while Maher dismissed several claims before the trial

commenced, Inverness did not. Inverness argued the fraud claim at trial, calling

witnesses to specifically testify as to the facts of the allegation. Therefore,

Inverness could only withdraw its fraud claim by stipulation of the parties or by

motion to the court. While Inverness notified the court that it wanted to withdraw

its fraud claim at the close of evidence, it did so without agreement by Maher.

Indeed, when Maher asked for clarification as to how Inverness was proceeding,

Inverness stated that it did not believe that it could withdraw the claim, and instead

encouraged the court to make a finding that Maher committed fraud but not award

damages. When Maher subsequently gave closing arguments regarding the fraud

claim, she disputed the statement by the court that the claim had been withdrawn.

Thus, there is no evidence that the parties agreed to dismiss the claim by

stipulation, or that Maher was even aware that Inverness wanted the claim

dismissed.

{¶25} Nor did Inverness move to withdraw the claim. Indeed, when asked

to clarify whether it was proceeding on the fraud claim, Inverness admitted that it

did not believe the claim could be withdrawn. Even if there were a motion to

-17-
Case No. 5-13-39

dismiss by Inverness, the trial court never made clear that it was granting the

motion, as it continued to entertain whether it could rule on the fraud without

awarding damages. While the trial court stated that it believed that Inverness had

technically withdrawn the fraud claim when discussing final matters after closing

arguments, it never stated that it was a result of granting a motion to dismiss.

Instead, the trial court’s statements indicate that Inverness had unilaterally

withdrawn the claim, which could not occur once trial had started.

{¶26} Further, even if the judge’s comments after closing arguments can be

considered a grant of a motion to dismiss, the judgment entry does not state that

the fraud claim was dismissed. As this court has noted, “it is well established that

a trial court speaks only through its journal entries and not by oral

pronouncement.” Johnson v. Johnson, 194 Ohio App.3d 664, 2011-Ohio-3001, ¶

16 (3d Dist.). As a result, “an oral pronouncement is not recognized as an action

of a court unless it is entered upon the journal.” Id. While the judgment entry

mentions the fraud claim, it neither rules upon the claim nor states that it was

dismissed. Further, there is no other journalized entry regarding the fraud claim in

the record.

{¶27} With no stipulation by the parties to dismiss the claim, no motion to

dismiss the claim, and no journalized entry dismissing or ruling on the claim, the

-18-
Case No. 5-13-39

fraud claim was never adjudicated in this case, and is still pending before the

court.

Claims against Robert

{¶28} A judgment entry must address any claims against other parties

raised by a defendant to be considered a final, appealable order. State ex rel.

Collier v. Farley, 4th Dist. Lawrence No. 05CA4, 2005-Ohio-4204, ¶ 18; Phillips

v. Boston, 3d Dist. Marion No. 9-77-09, 1977 WL 199591, *1 (Aug. 5, 1977).

Here, Maher asserted claims against Robert personally. While Robert moved to be

dismissed as a party, the trial court denied the motion. Further, though Maher

dismissed Patricia and Elizabeth as parties, she did not dismiss Robert. While the

trial court’s judgment entry mentions cross claims, it does not discuss any of

Maher’s claims against Robert personally, only those against Inverness. As a

result, all of the claims raised by Maher against Robert are still pending before the

court.

{¶29} By not addressing the fraud claim or Maher’s claims against Robert,

the court’s decision acted as an adjudication of less than all of the claims in the

action. Therefore, we lack jurisdiction to review this case.

{¶30} Accordingly, for the forgoing reasons, the appeal is dismissed.

Appeal Dismissed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr
-19-