Hoenigman v. Ruiz

[Cite as Hoenigman v. Ruiz, 2021-Ohio-2029.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

PATRICIA J. HOENIGMAN, ET AL., :

Plaintiffs-Appellants, :
No. 109888
v. :

WILMARIE RUIZ, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: June 17, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-914146

Appearances:

Connick Law L.L.C., and Thomas J. Connick, for
appellants.

Richard A. Di Lisi and Karen A. Perez, for appellee.

MARY J. BOYLE, A.J.:

Plaintiffs-appellants, Patricia and Eric Hoenigman, appeal the trial

court’s judgment granting defendant-appellee, Wilmarie Ruiz, partial summary

judgment on the issues of punitive damages and attorney fees. They raise one

assignment of error for our review:
 The trial court erred in granting defendant-appellee’s motion for
summary judgment on the issue of punitive damages and attorney’s
fees.

After reviewing the parties’ arguments regarding our jurisdiction over

this appeal, we find that the trial court’s judgment was not a final, appealable order,

and we, therefore, dismiss this appeal for lack of appellate jurisdiction.

I. Procedural History and Factual Background

In April 2019, appellants filed a complaint against appellee for

damages arising from a motor vehicle collision. Appellants alleged that on June 17,

2017, both Patricia Hoenigman and appellee were driving eastbound on Interstate

90 when appellee’s vehicle struck Patricia’s, injuring Patricia and damaging her

vehicle. Appellants claimed that at the time of the accident, appellee “was drag

racing at a recklessly high rate of speed.” The complaint sets forth two counts:

negligence and loss of consortium. In their prayer for relief, appellants sought

compensatory damages, punitive damages, attorney fees, pre- and post-judgment

interest, and court costs.

In May 2019, appellee filed a motion to bifurcate the case into an

initial phase involving liability and compensatory damages and, if necessary, a

second phase to determine punitive damages. The trial court granted the unopposed

motion.

In January 2020, appellee filed a motion for partial summary

judgment “on the issue of punitive damages and attorney fees.” She argued that

appellants had no evidence that she had been “drag racing” or that she acted with
malice or bad faith. Appellants filed an opposition in which they attached an

affidavit of Kristen McDevitt, an eyewitness to the accident. McDevitt averred that

she saw a car drive past her to her left at “a very high rate of speed,” followed by

appellee’s vehicle “also traveling at a very high rate of speed.” The affidavit states

that McDevitt told the police that she “thought the two cars were racing.” Appellants

argued that this affidavit was sufficient evidence to support punitive damages

because it showed that appellee acted with “wanton or reckless disregard of the legal

rights of others.”

After full briefing, on July 16, 2020, the trial court granted appellee’s

motion for partial summary judgment. The trial court found that “the facts

presented support proceeding on a claim of negligence, but do not establish the

requisite degree of malice necessary to maintain a claim for punitive damages.” The

judgment entry states that “[appellants’] claims for punitive damages and attorney

fees are hereby dismissed with prejudice. Partial. There is no just reason for delay.”

It is from this judgment that appellants timely appeal.

II. Final Order

Before we can reach the merits of appellants’ arguments, we must

address the threshold issue of jurisdiction. Appellants claim that the trial court’s

judgment is appealable at this stage of the proceedings because the trial court

dismissed their “claim” for punitive damages and attorney fees specifically “with

prejudice.” They contend that even though the order is interlocutory, the trial court

intended its order to be immediately appealable because it included the Civ.R. 54(B)
certification of “no just reason for delay.” They further maintain that they are

entitled to appeal the trial court’s judgment now because the order prevents them

from presenting evidence of recklessness and malice to the same jury that will

determine the issue of compensatory damages.

The jurisdiction of a court of appeals is constitutionally limited to the

review of “final” orders. See Section 3(B)(2), Article IV, Ohio Constitution;

R.C. 2505.02(B). To be a final, appealable order, the order must meet the

requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B). Madfan, Inc. v.

Makris, 8th Dist. Cuyahoga No. 102179, 2015-Ohio-1316, ¶ 6, citing Chef Italiano

Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989).

Under R.C. 2505.02(B)(1), an order is final if it “affects a substantial

right in an action that in effect determines the action and prevents a judgment.” To

determine the action and prevent a judgment, the order “‘must dispose of the whole

merits of the cause or some separate and distinct branch thereof and leave nothing

for the determination of the court.’” Madfan at ¶ 6, quoting Hamilton Cty. Bd. of

Mental Retardation & Dev. Disabilities v. Professionals Guild of Ohio, 46 Ohio

St.3d 147, 153, 545 N.E.2d 1260 (1989).

An order that grants partial summary judgment on the issues of

punitive damages and attorney fees but leaves the underlying claim pending is not a

final order under R.C. 2505.02(B)(1) because it does not “dispose of the whole

merits” of a claim. In Heffernan v. Cent. Natl. Bank, 8th Dist. Cuyahoga No. 52250,

1987 Ohio App. LEXIS 7478, 1 (June 11, 1987), this court addressed an order that
resolved a motion for partial summary judgment on the issues of punitive damages

and attorney fees and found no just reason for delay. We explained that the

judgment merely limited the kinds of damages that could be awarded at trial and

did not fully adjudicate the plaintiff’s claim. Id. at 2-3. We found that we lacked

jurisdiction over the appeal, holding that “an order striking punitive damages and

attorney fees allegations while leaving the issue of actual damages pending is not an

order which ‘determines the action and prevents a judgment.’” Id. at ¶ 3, quoting

R.C. 2505.02(B). Instead, such an order is interlocutory because it is “subject to

revision by the trial court at any time prior to the entering of a final judgment in the

case.” Marc Glassman, Inc. v. Fagan, 8th Dist. Cuyahoga No. 87164, 2006-Ohio-

5577, ¶ 11. After the trial court enters a final judgment in the case, the interlocutory

orders merge into the final judgment and only then become appealable. Id.

Our holding in Heffernan is consistent with Ohio case law that an

order resolving punitive damages but not the underlying claim is not a final

judgment that can be immediately appealed. See Hitchings v. Weese, 77 Ohio St.3d

390, 391-392, 674 N.E.2d 688 (1997) (trial court’s ruling on punitive damages was

not a final order because the underlying claim remained pending); Norvell v.

Cuyahoga Cty. Hosp., 11 Ohio App.3d 70, 70, 463 N.E.2d 111 (8th Dist.1983) (“An

order which strikes some damage allegations from the plaintiff’s pleading, while

permitting consideration of other claimed damages on the same cause of action, is

not appealable.”); Worthington v. Wells Fargo Bank Minn., NA, 5th Dist. Richland

No. 10 CA 40, 2010-Ohio-4541, ¶ 29, quoting Aamco Transmissions v. Hatcher, 5th
Dist. Stark No. CA-7660, 1989 Ohio App. LEXIS 2386, 4 (June 19, 1989) (“[A]n

order on ‘summary judgment dismissing the punitive damages prayer for relief

while leaving the compensatory damage[s] claim extant is not a final appealable

order.’”); Horner v. Toledo Hosp., 94 Ohio App.3d 282, 288, 640 N.E.2d 857 (6th

Dist.1993) (plaintiff asserted one claim with a demand for both punitive and

compensatory damages, and “the prayer for punitive damages is not a separate claim

in itself but rather an issue in the overall claim for damages”).

Here, the trial court’s judgment granting partial summary judgment

on the issues of punitive damages and attorney fees did not fully resolve any of

appellants’ claims. Appellants asserted two claims (negligence and loss of

consortium), and they demanded punitive damages and attorney fees in their prayer

for relief. Although the trial court’s judgment resolved the issues of punitive

damages and attorney fees, the issue of compensatory damages for both claims

remains. Despite the trial court’s language that it “dismissed with prejudice” the

“claims for punitive damages and attorney fees,” the issues of punitive damages and

attorney fees were not independent claims. The trial court’s judgment limited the

damages that appellants can receive if they succeed at trial, but it did not fully

resolve either the claim for negligence or the claim for loss of consortium. Ohio case

law is clear that such an order is not final under R.C. 2505.02(B)(1) and is not

immediately appealable. Heffernan at 3; Hitchings at 391-392; Norvell at

paragraph one of the syllabus; Horner at 288.
 Appellants’ argument that the trial court intended its order to be

immediately appealable lacks merit. It is well established that a trial court’s finding

of “no just reason for delay” cannot “transform an order that was not final for

purposes of R.C. 2505.02 into a final appealable order for Civ.R. 54(B) purposes.”

Hitchings at 391. Pursuant to Civ.R. 54(B), “[i]f 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.”

Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 22, 540 N.E.2d 266 (1989).

But because the trial court’s judgment did not fully adjudicate any of appellants’

claims, Civ.R. 54(B) does not apply here and does not render the judgment either

final or immediately appealable. See Norvell at 71 (“An order which fails to conclude

an entire cause of action is nonfinal and nonappealable, despite the court’s

certification in Civ.R. 54(B) language.”); White v. Emmons, 4th Dist. Scioto No.

10CA3340, 2011-Ohio-1745, ¶ 9 (Civ.R. 54(B) certification of “no just reason for

delay” did not cure defect that the trial court’s judgment did not fully resolve any

claim); Painter and Pollis, Ohio Appellate Practice, Section 2:9 (2019) (“Rule 54(B)

language does not apply, for example, when a single claim has not been fully

resolved, such as when the trial court has resolved liability but not damages or when

the trial court has not adjudicated all the forms of requested relief[.]”).

Appellants’ argument that the trial court’s order is final because it

used the language “with prejudice” is also misplaced. We recognize that “[a]

dismissal with prejudice in a civil case affects the substantial right of the plaintiff to
seek redress for injury in the courts.” Sunkin v. Collision Pro, Inc., 174 Ohio App.3d

56, 63, 2007-Ohio-6046, 800 N.E.2d 947 (9th Dist.). However, as previously

discussed, the issues of punitive damages and attorney fees were not independent

claims that were capable of being dismissed with prejudice. The judgment is an

interlocutory order that the trial court can revise at any time before entering a final

judgment in the case. Marc Glassman, 8th Dist. Cuyahoga No. 87164, 2006-Ohio-

5577, at ¶ 11.

Because the trial court’s judgment is not a final order that can be

appealed at this time, we have no jurisdiction over this appeal. We therefore cannot

reach the merits of appellants’ arguments about whether McDevitt’s affidavit was

self-serving and whether it created a genuine issue of material fact.

Appeal dismissed.

It is ordered that appellee recover from appellants the costs herein taxed.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., and
MICHELLE J. SHEEHAN, J., CONCUR