Tinter v. Lucik

{¶ 42} I respectfully dissent. I would decline to address the merits of plaintiffs single assignment of error and dismiss the appeal sua sponte. Chef ItalianoCorp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 87,541 N.E.2d 64. It is well settled that an appellate court may only review judgments that constitute final, appealable orders. Id.

{¶ 43} On February 6, 2004, plaintiff filed a complaint against defendants asserting claims of breach of fiduciary duty, fraud, breach of duty of good faith and fair dealing, and conversion. On March 17, 2004, defendants filed then-answer and a counterclaim alleging that plaintiff violated a noncompete agreement. On February 4, 2005, the trial of this matter commenced. After plaintiff presented its case, defendants moved for a directed verdict. The trial court granted defendants' motions for directed verdict as to all of plaintiffs claims. The court issued a judgment entry to this effect on February 4, 2005.

{¶ 44} Thereafter, plaintiff appealed the trial court's directed verdict to this court. In Tinter v.Lucik, Cuyahoga App. No. 86026, 2005-Ohio-5858,2005 WL 2885970, we dismissed the appeal, finding that it was not a final, appealable order. We reasoned that defendants' counterclaim still existed and that the judgment entry from the trial court did not contain the language "no just reason for delay" as required by Civ.R. 54(B).

{¶ 45} In response, plaintiff filed a motion for 54(B) language with the trial court and requested that the court add the language required pursuant to Civ.R. 54(B) to its judgment entry dated February 4, 2005. On December 6, 2005, defendants filed a motion to set a trial date on their counterclaim. On July 28, 2006, the trial court granted plaintiffs motion and added the language "no just reason for delay."

{¶ 46} By adding the words "no just reason for delay," the trial court intended this make the order immediately appealable pursuant to Civ.R. 54(B). Civ.R. 54(B) states:

{¶ 47} "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."

{¶ 48} The inclusion of this language, however, does not convert an otherwise interlocutory order into a final, appealable order. Chef Italiano Corp.,44 Ohio St.3d at 89-90, 541 N.E.2d 64. Partially resolved issues are not final and appealable even though the judgment entry contains the language "no just reason *Page 703 for delay" when an adjudicated claim that has a common body of interest remains pending before a trial court. Salata v.Vallas, 159 Ohio App.3d 108, 2004-Ohio-6037,823 N.E.2d 50. As the court in Dodrill v. Prudential Ins. Co., Jackson App. No. 05CA13, 2006-Ohio-3674, 2006 WL 2006184, stated:

{¶ 49} "`The trial court should include the express determination that there is no just reason for delay when a judgment has been entered as to one or more but fewer than all the claims of the parties only when the matter adjudicated is clearly independent of other rights and liabilities, because the trial court's power to modify the order[,] as may be necessary due to subsequent events[,] is otherwise substantially decreased. The trial court abuses its discretion in attempting to make the disposition of only part of the claims appealable by the addition of Civil Rule 54(B) language when the parties and issues contained in that order are so related and interconnected with an interlocutory order that, for purposes of judicial economy, they should be considered together. In that event, the appellate court is without jurisdiction to entertain the appeal until all of the intertwined claims are final.'"

{¶ 50} Id. at 1110, quoting McCormac Solimine, Ohio Civil Rules Practice (3d Ed.2003) 351, Section 13.17.

{¶ 51} In the instant matter, the trial court's incantation of the language "no just reason for delay" did not convert its interlocutory order of February 4, 2005 into a final, appealable order. Defendants' counterclaim is not separate and distinct from plaintiffs claims. Instead, all the claims are intertwined because all arise out of the same business relationship. More specifically, defendants' counterclaim alleges violations of a noncompete agreement. However, a written noncompete agreement is not provided in the record or even referred to in the counterclaim. Likewise, the counterclaim fails to indicate whether the alleged non-compete agreement was oral. Without such information, we cannot find the noncompete agreement, and consequently, the counterclaim, separate and distinct from the business relationship plaintiff complains of in her complaint. Accordingly, because defendants' counterclaim has yet to be resolved, I would dismiss the instant action for lack of a final, appealable order in the interests of judicial economy and to avoid piecemeal litigation. *Page 704