Alt v. Bauer

[Cite as Alt v. Bauer, 2018-Ohio-4264.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JANICE ALT, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellant : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ROGER L. BAUER, et al., : Case No. 17CA97
:
Defendants - Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2015 CV 1531

JUDGMENT: Dismissed

DATE OF JUDGMENT: October 19, 2018

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

J. JEFFREY HECK ANDREW J. BURTON
The Heck Law Offices, Ltd. Renwick, Welsh & Burton LLC
One Marion Avenue, Suite 104 9 N. Mulberry Street
Mansfield, Ohio 44903 Mansfield, Ohio 44902
Richland County, Case No. 17CA97 2

Baldwin, J.

{¶1} Plaintiff-appellant Janice Alt appeals from the October 25, 2017 Order of

the Richland County Court of Common Pleas granting the Motion for Summary Judgment

filed by defendants-appellees Roger L. Bauer and Jacqueline Bauer.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant is the owner of real properly located at 2953 Plymouth-Springmill

Road in Shelby, Ohio. Appellees are neighbors. Appellant and appellees have lived on

adjoining parcels for approximately twenty-two (22) years.

{¶3} According to appellant, on or about July 16, 2013, appellee Roger Bauer

and another family member entered onto her property without her permission while

carrying a can of spray paint, a piece of rebar, a metal detector and a sledge hammer.

Appellant, in her affidavit, alleged that she told them repeatedly to get off of her property

and that the property was hers, but appellee Roger Bauer claimed that it was his property

and proceeded to pound the rebar into the ground and spray paint a large “X” with orange

paint on the grass.

{¶4} On or about May 19, 2014, appellee Roger Bauer submitted an Application

for Zoning Certificate to Craig Stover as the Jackson Township Zoning Inspector, for the

construction of a six foot high fence at appellees’ property. The application indicted that

the fence was to consist of four sections as follows: 24 feet, 24 feet, 80 feet and 120 feet

for a total of 248 feet. No sketch or plan of the proposed fence was attached to the

application which was approved on May 21, 2014 by Stover. Several weeks later, the plan

and sketch of the fence were delivered to the township. The fence was completed in

June of 2014. It was 275 feet.
Richland County, Case No. 17CA97 3

{¶5} The Richland County Regional Planning Commission Staff, in September

of 2014, recommended revocation of the fence permit on the basis that it had been

improperly filed and approved, among other reasons.

{¶6} In December of 2015, appellant filed a complaint against appellees, alleging

nuisance and trespass. Appellant, in her complaint, sought injunctive relief and money

damages. Appellant, in her complaint, alleged in support of her nuisance claim that the

person who appellees submitted their application to for a fence permit was not the lawful

Zoning Inspector of Jackson Township at the time and that appellees “knew or should

have known” this; that the application was incomplete and improper and that appellees

knew this, and that the fence was completed in a manner inconsistent with the application.

Appellant further alleged in her complaint, in relevant part, as follows, at paragraphs 15-

16:

{¶7} Further, since the erection of the fencing, defendants have failed and

refused to maintain the grass, noxious weeds and other plant materials along their fencing

and between that fencing and plaintiff’s property line. This grass, noxious weeds and

other plant material are unsightly and have grown to the point that they violate provisions

of the Ohio Revised Code and also constitutes a nuisance.

{¶8} Further, defendants have cemented in place a six foot (6’) high permanent

post in the ground only 3 inches from the plaintiff’s southern property line. Such post is

not any portion of any fencing and violates known an existing Jackson Township setback

regulations and requirements.
Richland County, Case No. 17CA97 4

{¶9} In support of her trespass action, appellant alleged that, before the fence

was constructed, appellee Roger Bauer and another family member had entered onto her

property without her permission and remained thereon, refusing to leave.

{¶10} On February 22, 2016, appellees filed an answer and counterclaims for

trespass, nuisance and an injunction. In their counterclaims, they alleged that appellant

and/or her agent trespassed on their property and removed their survey stakes, that

appellant’s chain link fence encroached on their property and that the portion of such

fence not encroaching on their property was not in compliance with applicable zoning

regulations, and that appellant’s wooden fence was constructed in violation of applicable

zoning regulations, and was either too close to appellees’ property or encroaching on it

and that appellant knew or should have known that construction and maintenance of the

fences was in violation of the zoning regulations. Appellees sought both injunctive relief

and damages.

{¶11} On March 7, 2016, appellees filed a Third Party Complaint against Richard

Gorsuch, appellant’s fiancé at all times complained of in the complaint and counterclaim,

alleging trespass. On March 22, 2016, appellant filed a reply to the counterclaim and

Gorsuch filed an answer to the Third Party Complaint.

{¶12} Thereafter, on August 14, 2017, appellees filed a Motion for Summary

Judgment and a Notice of Dismissal of their counterclaim for nuisance pursuant to Civ.R.

41(A). Appellant and Gorsuch filed a memorandum in opposition to the Motion for

Summary Judgment on September 18, 2017 and appellees filed a reply on October 2,

2017.
Richland County, Case No. 17CA97 5

{¶13} Pursuant to an Order filed on October 25, 2017, the trial court granted

appellees’ Motion for Summary Judgment and dismissed the case with prejudice.

Appellant and Third Party Defendant Richard Gorsuch, on November 1, 2017, filed a

Motion for Findings of Fact and Conclusions of Law. Via an Order filed on November 3,

2017, the trial court overruled the motion.

{¶14} Appellant filed a Notice of Appeal on November 22, 2017, appealing from

the trial court’s October 25, 2017 Order. On February 23, 2018, the trial court filed an

Amended Order overruling Appellant’s Motion or Findings of Fact and Conclusions of

Law. On the same date, the trial court filed an Amended Order granting the Motion for

Summary Judgment to add language stating that “There is no just cause for delay.”

{¶15} Appellant now raises the following assignment of error on appeal:

{¶16} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO APPELLEES.”

{¶17} As an initial matter, we shall address appellant’s argument that there is no

final, appealable order. Even if a party does not raise the issue, this court must address,

sua sponte, whether there is a final appealable order ripe for review. State ex rel. White

vs. Cuyahoga Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72.

{¶18} Appellate courts have jurisdiction to review the final orders or judgments of

lower courts within their appellate districts. Section 3(B) (2), Article IV, Ohio Constitution.

If a lower court's order is not final, then an appellate court does not have jurisdiction to

review the matter and the matter must be dismissed. General Acc. Ins. Co. vs. Insurance

of North America, 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989); Harris v. Conrad, 12th

Dist. Warren No. CA-2001-12- 108, 2002-Ohio-3885.
Richland County, Case No. 17CA97 6

{¶19} To be final and appealable, an order must comply with R.C. 2505.02 and

Civ.R. 54(B), if applicable. R.C. 2502.02(B) provides the following in pertinent part:

{¶20} (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:

{¶21} (1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

{¶22} (2) An order that affects a substantial right made in a special proceeding or

upon a summary application in an action after judgment.

{¶23} (3) An order that vacates or sets aside a judgment or grants a new trial;

{¶24} (4) An order that grants or denies a provisional remedy and to which both

of the following apply:

{¶25} (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.

{¶26} (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.

{¶27} (5) An order that determines that an action may or may not be maintained

as a class action;

{¶28} (6) An order determining the constitutionality of any changes to the

Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly, including the

amendment of sections 1751.67, 2117.06, 2305.11, 2305.15, 2305.234, 2317.02,

2317.54, 2323.56, 2711.21, 2711.22, 2711.23, 2711.24, 2743.02, 2743.43, 2919.16,
Richland County, Case No. 17CA97 7

3923.63, 3923.64, 4705.15, and 5111.018 (renumbered as 5164.07 by H.B. 59 of the

130th general assembly1), and the enactment of sections 2305.113, 2323.41, 2323.43,

and 2323.55 of the Revised Code or any changes made by Sub. S.B. 80 of the 125th

general assembly, including the amendment of sections 2125.02, 2305.10, 2305.131,

2315.18, 2315.19, and 2315.21 of the Revised Code;

{¶29} (7) An order in an appropriation proceeding that may be appealed pursuant

to division (B)(3) of section 163.09 of the Revised Code.

{¶30} 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 judgment on all the claims and/or as to all parties,

as is the case here, the order must also satisfy Civil Rule 54(B) by including express

language that “there is no just reason for delay.” Int'l. Brotherhood of Electrical Workers,

Local Union No. 8 v. Vaughn Indus., LLC, 116 Ohio St.3d 335, 2007–Ohio–6439, 879

N.E.2d 101. However, we note that “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). Civ.R. 54(B) does not alter the requirement

that an order must be final before the no just reason for delay language renders it

appealable. Gen. Acc. Ins. Co. at 21, citing Douthitt v. Garrison, 3 Ohio App.3d 254, 255,

444 N.E.2d 1068 (9th Dist.1981). Therefore, a partial final order is not appealable

pursuant to Civ. R. 54(B) if pending unresolved counterclaims touch upon the very same

facts, legal issues and circumstances as the original claim. See Portco, Inc. v. Eye

Specialists, Inc., 173 Ohio App.3d 108, 2007–Ohio–4403, 877 N.E.2d 709, ¶ 10 (4th

Dist.).
Richland County, Case No. 17CA97 8

{¶31} In the case sub judice, appellant filed a complaint against appellees and

appellees filed counterclaims against appellant. Appellees, in their counterclaim, set forth

causes of action for nuisance, trespass, and injunctive relief. Appellees filed a Motion for

Summary Judgment on the complaint and the trial court, On October 25, 2017 granted

the same. Appellees, on August 14, 2017, had dismissed their nuisance counterclaim,

leaving the remaining counterclaims pending. The trial court, on February 23, 2018,

issued an Amended Order granting the Motion for Summary Judgment to add language

stating that “There is no just cause for delay.” While, in this matter, the trial court awarded

appellees summary judgment on the claims of appellant’s complaint, the court did not

dispose of the remaining counterclaims for relief. There is, therefore, no final, appealable

order. Despite the fact that the trial court used Civ.R. 54(B) language, the summary

judgment for appellees is not a final appealable order within the meaning of R.C. 2505.02,

as it does not determine the action or prevent a judgment for appellant. Appellant’s

counterclaims against appellees are not rendered moot nor are they fully resolved by the

summary judgment for appellees. Noble v. Colwell (1989), 44 Ohio St.3d 92, 96; 540

N.E.2d 1381, 1384.
Richland County, Case No. 17CA97 9

{¶32} The appeal is dismissed for want of jurisdiction, as the order appealed from

is not a final, appealable order.

By: Baldwin, J.

Gwin, P.J. and

Hoffman, J. concur.