[Cite as Kelly v. Swoish Ft Blue Ash, L.L.C., 2017-Ohio-836.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
TIMOTHY F. KELLY, : APPEAL NO. C-160461
TRIAL NO. A-1407506
Plaintiff-Appellant, :
vs. : O P I N I O N.
SWOISH FT BLUE ASH, LLC, :
Defendant-Appellee, :
and :
CORPORATE WOODS I & II, LLC, :
and :
JOHN DOES NOS. 1-5, :
Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: March 10, 2017
James P. Urling and Thomas W. Condit, for Plaintiff-Appellant,
Jonathan W. Philipp, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Plaintiff-appellant Timothy F. Kelly appeals the trial court’s entry of
summary judgment in favor of defendant-appellee Swoish FT Blue Ash, LLC,
(“Swoish”) on his negligence claim. Because we have no jurisdiction to entertain the
appeal, we dismiss it.
{¶2} Kelly filed a complaint against Swoish, Corporate Woods I & II, LLC,
(“Corporate Woods”) and John Does Nos. 1-5, alleging that he had fallen on ice in the
parking lot of a commercial property owned or operated by Swoish and Corporate
Woods. He alleged that the Doe defendants were “persons, entities, agents, and/or
subcontractors, whose identities could not be ascertained * * *, [who were] engaged
in the business of owning/leasing/subcontracting, operating and maintaining” the
property.
{¶3} The complaint was served on Corporate Woods and Swoish, but the
Doe defendants were never identified nor served. Swoish filed an answer, but
Corporate Woods did not answer or appear in the action.
{¶4} Thereafter, Swoish sought and was granted leave to file a motion for
summary judgment. Following a hearing, the trial court granted summary judgment
in favor of Swoish.
{¶5} We cannot reach the merits of Kelly’s assignment of error because we
have no jurisdiction to hear the appeal. Our appellate jurisdiction is limited to the
review of final orders of lower courts. Ohio Constitution, Article IV, Section 3(B)(2);
Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593, ¶ 21. An
order is final and appealable only if it meets the requirements of both R.C. 2505.02
and, if applicable, Civ.R. 54(B). Chef Italiano Corp. v. Kent State Univ., 44 Ohio
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OHIO FIRST DISTRICT COURT OF APPEALS
St.3d 86, 541 N.E.2d 64 (1989), syllabus; State ex rel. Scruggs v. Sadler, 97 Ohio
St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5. Civ.R. 54(B) applies where more
than one claim for relief is presented or multiple parties are involved, and where the
court has rendered a final judgment as to fewer than all claims or parties. Chef
Italiano at 88. An entry of judgment involving fewer than all claims or parties is not
a final, appealable order unless the court expressly determines that there is “no just
reason for delay.” Civ.R. 54(B); Jarrett v. Dayton Osteopathic Hosp., Inc., 20 Ohio
St.3d 77, 78, 486 N.E.2d 99 (1985); Scruggs at ¶ 6.
{¶6} In this case, Kelly filed the action against multiple defendants, but the
trial court’s judgment disposed of his claims against only one defendant. We
recognize that the action was never duly commenced against the Doe defendants
because they were never identified or served with the complaint. See Civ.R. 3(A);
Civ.R. 15(D); Dillard v. Nationwide Beauty School, 10th Dist. Franklin No. 90AP-
273, 1990 WL 204766, *3 (Dec. 11, 1990); Blanton v. Alley, 4th Dist. Pike No.
02CA685, 2003-Ohio-2594, ¶ 29. However, Kelly did obtain service upon Corporate
Woods, and Corporate Woods remained a party to the action at the time that
summary judgment was entered in Swoish’s favor.
{¶7} The trial court’s judgment in favor of Swoish did not dispose of Kelly’s
claims against Corporate Woods, so Civ.R. 54(B) applies to the order. Because the
trial court’s order does not include the requisite Civ.R. 54(B) certification that there
is “no just reason for delay,” the order appealed from is not a final and appealable
order. See Hadassah v. Schwartz, 1st Dist. Hamilton No. C-110699, 2012-Ohio-
3910, ¶ 10. Consequently, we are without jurisdiction to entertain the appeal, and for
that reason, the appeal is dismissed.
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OHIO FIRST DISTRICT COURT OF APPEALS
Appeal dismissed.
CUNNINGHAM, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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