[Cite as Strohminger v. B&W Cartage Co., Inc., 2018-Ohio-4265.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MICHAEL STROHMINGER JUDGES:
Hon. W. Scott Gwin ,P.J
Plaintiff – Appellant Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2017CA89
B & W CARTAGE COMPANY, INC., et al.
Defendant – Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Case No. 2017CV353R
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 22, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
CASSANDRA J. M. MAYER BRIAN D. SULLIVAN
525 Park Avenue West MICHAEL J. PELAGALLI
Mansfield, OH 44906 Reminger Co., L.P.A.
101 Prospect Avenue West
Suite 1400
Cleveland, OH 44115-1093
Richland County, Case No. 17CA89 2
Hoffman, J.
{¶1} Appellant Michael Strohminger appeals the judgment entered by the
Richland County Common Pleas Court granting the motion to dismiss his action against
Appellees B&W Cartage Company, Inc. (hereinafter “B&W”) and TVM for want of
personal jurisdiction.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant filed the instant action in the Richland County Common Pleas
Court on May 5, 2017, naming four defendants: Appellee B&W, Appellee TVM, John
Doe, and Great West Casualty Company (hereinafter “Great West”). The complaint
alleged while Appellant was waiting at B&W’s warehouse to unload the trailer of his tractor
trailer semi-truck, he was struck by a semi-truck negligently operated by John Doe. The
complaint alleged John Doe was an employee/driver for Appellees at the time of the
accident, and Appellant sustained property damage and lost wages as a direct and
proximate result of John Doe’s negligence. Appellant further sought a declaration he was
entitled to coverage from his insurer, Great West, if the court determined his damages
were not covered by B&W or TVM.
{¶3} Appellees filed a motion to dismiss for want of personal jurisdiction pursuant
to Civ. R. 12(B)(2). Appellees argued pursuant to an independent contractor agreement
between Appellant and Appellees, all claims between the parties are required to be
brought in the State of Michigan, subject to arbitration. Subsequently, Great West filed a
motion for summary judgment on other grounds.
{¶4} The trial court granted Appellees’ motion to dismiss for lack of personal
jurisdiction on September 7, 2017, finding the parties are governed by a forum selection
Richland County, Case No. 17CA89 3
clause requiring the matter to be filed in Michigan. On September 29, 2017, while Great
West’s motion for summary judgment remained pending, Appellant filed a notice of
voluntary dismissal of his complaint “against all Defendants listed in the Complaint,
without prejudice.”
{¶5} Appellant filed a notice of appeal from the September 7, 2017 judgment of
the court, assigning as error:
“THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT’S
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
FINDING THE FORUM SELECTION CLAUSE CONTAINED IN THE
CONTRACTOR AND EQUIPMENT AGREEMENT TO BE ENFORCEABLE
IN THIS MATTER.”
{¶6} As a preliminary matter, we must first determine whether the order under
review is a final appealable order. If an order is not final and appealable, then we have
no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins. Co.
of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). In the event the parties to the
appeal do not raise this jurisdictional issue, we must raise it sua sponte. See Chef Italiano
Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus.
{¶7} To be final and appealable, an order must comply with R.C. 2505.02 and
Civ.R. 54(B), if applicable.
{¶8} R.C. 2505.02(B) provides, in pertinent part:
Richland County, Case No. 17CA89 4
{¶9} (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:
{¶10} (1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶11} (2) An order that affects a substantial right made in a special proceeding or
upon a summary application in an action after judgment.
{¶12} Civ.R. 54(B) provides:
{¶13} 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. In the absence of a
determination that there is no just reason for delay, any order or other form
of decision, however designated, which adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties, shall not
terminate the action as to any of the claims or parties, and the order or other
form of decision is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities of all the
parties.
{¶14} Therefore, to qualify as final and appealable, the trial court's order must
satisfy the requirements of R.C. 2505.02, and if the action involves multiple claims and/or
multiple parties and the order does not enter a judgment on all the claims and/or as to all
Richland County, Case No. 17CA89 5
parties; as is the case here, the order must also satisfy Civ. R. 54(B) by including express
language “there is no just reason for delay.” Internatl. Bhd. of Electrical Workers, Local
Union No. 8 v. Vaughn Indus., L.L.C., 116 Ohio St.3d 335, 2007–Ohio–6439, 879 N.E.2d
187, ¶ 7, citing State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 2002–Ohio–5315, 776
N.E.2d 101, ¶ 5–7. We note, “the mere incantation of the required language does not turn
an otherwise non-final order into a final appealable order.” Noble v. Colwell, 44 Ohio St.3d
92, 96, 540 N.E.2d 1381, (1989). To be final and appealable, the judgment entry must
also comply with R.C. 2505.02. Id.
{¶15} The entry in the instant case does not dispose of the declaratory judgment
claim against Great West, nor does it dismiss John Doe, and the claims against these
parties remained pending. Further, the entry does not include Civ. R. 54(B) language
“there is no just cause for delay.” We find the September 7, 2017 judgment appealed from
is not a final, appealable order, and we therefore do not have jurisdiction over this appeal.
Richland County, Case No. 17CA89 6
As Appellant subsequently dismissed his complaint as to all defendants, no claims or
parties remain pending in the trial court.
{¶16} The appeal is dismissed.
{¶17} Costs are assessed to Appellant.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur