[Cite as Hack v. Keller, 2015-Ohio-4128.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
PEGGY HACK C.A. No. 14CA0036-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KARL KELLER COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 11 CIV 1455
DECISION AND JOURNAL ENTRY
Dated: October 5, 2015
CARR, Presiding Judge.
{¶1} Appellant Karl Keller appeals the order of the Medina County Court of Common
Pleas that denied his purported motion to vacate pursuant to Civ.R. 60(B) the parties’ Stipulated
Order for Partition. This Court dismisses the appeal for lack of a final, appealable order.
I.
{¶2} Appellee Peggy Hack filed a complaint for partition of premises which appellant
Karl Keller and she owned. Mr. Keller answered and filed counterclaims for partition, unjust
enrichment, and conversion. Ms. Hack amended her complaint to allege claims for partition,
contribution from rents Mr. Keller collected and retained from leasing the property, and for an
accounting. The parties later filed a “Stipulated Order for Partition,” wherein they settled their
respective claims for partition and consented to partition of the property. A writ of partition issued
to the sheriff, and a commissioner was appointed to determine the value of the property. The trial
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court approved the commissioner’s report and ordered the parties to notify the court within thirty
days whether either party elected to purchase the property at the appraised value.
{¶3} After neither party elected to purchase the property within the allotted time, Ms.
Hack moved the trial court to order a sheriff’s sale. Mr. Keller objected, asserting that not only
was a sheriff’s sale premature, but so was any election to purchase, until the trial court heard the
issue of the parties’ respective proportionate interests in the property. Mr. Keller then moved for
a trial to determine the parties’ proportionate interests and to designate its determination on that
issue as a final, appealable order.
{¶4} The magistrate held a hearing on the pending motions and issued a decision, finding
that the parties’ stipulated order for partition resolved the issue of the respective interests and that,
by the terms of the stipulation, each presumptively held an equal interest in the property. The
magistrate further concluded, based on uncited case law from the Third and Seventh District Courts
of Appeals, that the stipulated order of partition was a final, appealable order that the court had no
authority to revisit or modify. Accordingly, the magistrate denied Mr. Keller’s motion to schedule
a hearing to determine the parties’ proportionate interests in the property. The magistrate further
wrote that the court would grant Ms. Hack’s motion for a sheriff’s sale later, after all remaining
claims were resolved. The trial court denied Mr. Keller’s motion to designate this magistrate’s
decision a final, appealable order, reasoning that only the appellate court had authority to determine
its jurisdiction. Mr. Keller did not file objections to the magistrate’s decision.
{¶5} Nearly four months later, however, Mr. Keller moved the court for a pretrial to
clarify whether he could still assert his claim of a greater proportionate interest in the property at
the ultimate trial on all pending claims. One month later, the trial court adopted and affirmed the
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magistrate’s decision after noting that no objections had been filed. The trial court ordered, in
relevant part:
[Mr. Keller’s] motion to schedule an evidentiary hearing on the parties’ interest in
the property is denied. [Mr. Keller’s] motion to designate this journal entry as a
final appealable order is denied. [Ms. Hack’s] motion for an order directing the
Sheriff to sell the property shall be granted upon conclusion of the adjudication of
the parties’ remaining causes of action.
{¶6} Ms. Hack moved for leave to file a motion for summary judgment solely on Mr.
Keller’s claim for unjust enrichment. The trial court granted leave. Ms. Hack filed her motion,
and Mr. Keller responded in opposition. The record indicates that the trial court has not disposed
of the motion for partial summary judgment.
{¶7} The issue giving rise to the instant attempted appeal is as follows. More than a year
and a half after the parties filed their stipulated order for partition, Mr. Keller filed a motion to
vacate that stipulated order, alleging grounds pursuant to Civ.R. 60(B)(5). Ms. Hack opposed the
motion to vacate. The trial court held an oral hearing and subsequently denied the motion to vacate
on alternative grounds. First, the trial court concluded that the parties’ stipulated order for partition
was a final, appealable order and that Mr. Keller was improperly attempting to use a Civ.R. 60(B)
motion to vacate as a substitute for appeal. Alternatively, the trial court rejected Mr. Keller’s
substantive argument that the stipulated order must be vacated because of a difference of
interpretation whether the issue of the parties’ proportionate interests had been resolved. Finding
that the language of the stipulated order, drafted and signed by the parties’ attorneys, fully resolved
the issue, the trial court concluded that Mr. Keller could not obtain relief pursuant to Civ.R.
60(B)(5). The trial court denied the motion to vacate and scheduled the parties’ remaining causes
of action for trial. Mr. Keller has attempted to appeal the trial court’s denial of his motion to
vacate, proposing two assignments of error.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO
VACATE A STIPULATION BASED ON MISTAKE.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED
TO RECOGNIZE THE STIPULATION AS VOID AB INITIO BECAUSE IT
WAS NOT ENTERED INTO KNOWINGLY AND VOLUNTARILY BY
APPELLANT.
{¶8} Mr. Keller argues that the trial court erred by denying his motion to vacate pursuant
to Civ.R. 60(B) the parties’ stipulated order for partition. Because the trial court’s journal entry
denying the Civ.R. 60(B) was not a final, appealable order, this Court dismisses the appeal for lack
of jurisdiction.
{¶9} As a preliminary matter, this Court is obligated to raise sua sponte questions related
to our jurisdiction. Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186
(1972). This Court only has jurisdiction to hear appeals from judgments and final orders. Ohio
Constitution, Article IV, Section 3(B)(2). “For a judgment to be final and appealable, the
requirements of R.C. 2505.02 and Civ.R. 54(B), if applicable, must be satisfied.” LEH Properties,
Inc. v. Pheasant Run Assn., 9th Dist. Lorain No. 07CA009275, 2008-Ohio-4500, ¶ 10, citing Chef
Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88 (1989).
{¶10} It is well settled that a trial court’s denial of a motion to vacate a judgment pursuant
to Civ.R. 60(B) is a final, appealable order. Colley v. Bazell, 64 Ohio St.2d 243, 245 (1980).
However, a Civ.R. 60(B) motion to vacate lies only from a “final judgment, order, or
proceeding[.]” Where the underlying order is not itself a final judgment, Civ.R. 60(B) is not a
proper procedural mechanism for relief and it cannot be used to convert an otherwise nonfinal
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judgment into a final appealable order. Kalapodis v. Hall, 9th Dist. Summit No. 22386, 2005-
Ohio-2567, ¶ 10. “An order is a final appealable order if it affects a substantial right and in effect
determines the action and prevents a judgment.” Price v. Klapp, 9th Dist. Summit No. 27343,
2014-Ohio-5644, ¶ 6, quoting, Yonkings v. Wilkinson, 86 Ohio St.3d 225, 229 (1999); see also
R.C. 2505.02(B)(1).
{¶11} Partition orders have been recognized as final, appealable orders as contemplated
by R.C. 2505.02(B)(1). See e.g., Rose v. Rose, 194 N.E.2d 870, 872 (7th Dist.1963), citing
Mitchell v. Crain, 108 Ohio App. 143, 149 (6th Dist.1958) (holding that “the final order from
which appeals may be had in partition are limited to the order of partition and the order confirming
the sale.”). The finality of partition orders was discussed for the first time after the 1912
amendment to the Ohio Constitution in Johnston v. Deaton, 105 Ohio St. 285 (1922). In Johnston,
after the commissioners reported the inability to divide the premises without manifest injury and
appraised the property, the trial court ordered that the property be sold. The high court concluded
that an appeal would lie from this order because it was a “final order affecting her substantial
rights” that “finally excluded [appellant] from her right to have aparted to her the one-half of the
real estate which belonged to her in common with [appellee], compelled her to allow her property
to be offered for sale to the public, and required her, if she desired to reacquire a portion of it, to
compete with the public in so acquiring it * * *.” Id. at 287. It appears that Ohio courts that have
spoken on the issue would recognize appellate jurisdiction to consider appeals in these cases from
two distinct orders, to wit, the partition order and the subsequent order confirming sale of the
property. E.g., Mitchell at 149 (but stating that “[s]o-called interlocutory order[s] such as vacating
the sheriff’s sale, do not have such finality as to accord the right of appeal.”). Assuming without
deciding that the parties’ August 23, 2012 stipulated order for partition would constitute a final
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order that may be reviewed on appeal pursuant to R.C. 2505.02(B), this does not end the inquiry,
however.1
{¶12} If Civ.R. 54(B) is applicable, its requirements must also be met before this Court
acquires jurisdiction to hear the appeal. LEH Properties, Inc., 2008-Ohio-4500, at ¶ 10, citing
Chef Italiano Corp., 44 Ohio St.3d at 88. Where a case involves multiple claims or multiple
parties, Civ.R. 54(B) allows a trial court to issue a final judgment that can immediately be appealed
“only upon an express determination that there is no just reason for delay.” Even so, merely
reciting the “no just reason for delay” language or asserting that an order is final and appealable
cannot transform an otherwise non-final order into one that is final and appealable. Wisintainer v.
Elcen Power Strut Co., 67 Ohio St.3d 352, 354 (1993), citing Chef Italiano.
{¶13} Ohio courts addressing the finality of partition orders where other claims remain
pending have held that, in the absence of the requisite Civ.R. 54(B) certification, there is no final,
appealable order. See e.g., Whipps v. Ryan, 10th Dist. Franklin No. 12AP-509, 2013-Ohio-4334,
¶ 31 (dismissing appeal where, even assuming resolution of the partition complaint, a cross-claim
remained pending); Yeckley v. Yeckley, 8th Dist. Cuyahoga No. 94358, 2010-Ohio-4252, ¶ 13 (in
partition action, “[a]n order vacating a judgment that was entered against less than all the parties
and in which the trial court did not make an express determination that there was ‘no just reason
for delay’ is not a final, appealable order.”); Yeckley v. Yeckley, 8th Dist. Cuyahoga No. 96873,
2012-Ohio-84.
{¶14} In this case, in reviewing Mr. Keller’s motion to vacate, the trial court concluded
that the stipulated order for partition was a final, appealable order. The partition order, however,
1
Case law is unclear as to what constitutes a final partition order, but this Court need not
make that determination at this time under the procedural posture of this case. See State ex rel.
Luoma v. Russo, 141 Ohio St.3d 53, 2014-Ohio-4532.
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did not contain the Civ.R. 54(B) language certifying that there was no just reason for delay.
Multiple claims by both parties remain pending.2 The trial court scheduled a trial date for the
remaining claims, including Ms. Hack’s claims for contribution and for an accounting, and Mr.
Keller’s claims for unjust enrichment and conversion.
{¶15} As the partition order did not contain the requisite Civ.R. 54(B) certification and
multiple claims remain pending for resolution, this Court concludes that the parties’ stipulated
order for partition did not constitute a final, appealable order. Instead, the stipulated order was
merely an interlocutory order subject to modification. Civ.R. 54(B) (interlocutory orders are
subject to revision). Because Civ.R. 60(B) may only be used to obtain relief from final judgments,
Mr. Keller’s purported motion to vacate pursuant to Civ.R. 60(B) was a mislabeled motion for
reconsideration. The reconsideration of an interlocutory order is itself an interlocutory order, not
subject to appeal. Yeckley, 2012-Ohio-84, at ¶ 17, citing Beyke v. Beyke, 3d Dist. Nos. 14-05-13,
14-05-15, 2005-Ohio-5465, ¶ 17.
{¶16} As the trial court’s journal entry denying Mr. Keller’s motion to vacate the parties’
stipulated order for partition was an interlocutory order reconsidering an underlying interlocutory
order, it does not constitute a final, appealable order. Accordingly, this Court retains no
jurisdiction to consider Mr. Keller’s substantive challenges to the trial court’s denial on appeal.
Appeal dismissed.
2
In her trial brief filed December 9, 2013, Ms. Hack wrote that she recently withdrew her
claims for contribution and for an accounting. There is nothing in the record beyond this assertion
to substantiate that. Even assuming that all of her claims have been fully resolved, Mr. Keller
continues to maintain two claims for resolution, and the trial court has scheduled a trial on all
remaining claims.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
SCHAFER, J.
CONCURS.
MOORE, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
DONALD GALLICK, Attorney at Law, for Appellant.
WILLIAM B. YOUNG and JARED M. HOOVER, Attorneys at Law, for Appellee.