WAYNE W. CLARK, et al. v. KATHLEEN L. BUTLER, et al.
Case No. 10CA3191
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
9-27-11
2011-Ohio-4943
ABELE, J.
CIVIL APPEAL FROM COMMON PLEAS COURT
COUNSEL FOR APPELLANTS: James K. Cutright, Cutright & Cutright, L.L.C., 76 West Second Street, Chillicothe, Ohio 45601
COUNSEL FOR APPELLEES: Thomas M. Spetnagel, Spetnagel & McMahon, 42 East Fifth Street, Chillicothe, Ohio 45601
{¶ 1} This is an appeal from a Ross County Common Pleas Court judgment in favor of Wayne W. Clark and Cheryl K. Clark, plaintiffs below and appellants herein, on their claim against Kathleen L. Butler and Butler Events, L.L.C., defendants below and appellants herein. Appellants assign the following errors for review:
FIRST ASSIGNMENT OF ERROR:
IN THE MAY 7, 2010, DECISION AND JUDGMENT ENTRY,
THE TRIAL COURT‘S FINDING THAT APPELLANTS DID NOT HAVE AN EASEMENT FOR THE USE OF THE COMMON SEWAGE SYSTEM WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
SECOND ASSIGNMENT OF ERROR:
IN THE MAY 7, 2010, DECISION AND JUDGMENT ENTRY, THE TRIAL COURT‘S FINDING THAT APPELLANTS DID NOT HAVE AN EASEMENT FOR THE USE OF THE COMMON SEWAGE SYSTEM WAS CONTRARY TO LAW.
{¶ 2} The parties are contiguous land owners. Appеllees commenced the action with a complaint that alleged that appellants interfered with an easement for use of a septic system located on appellants’ property. The easement was granted to appellees by a common predecessor-in-title to both properties. Appellants denied liability and assertеd a number of counterclaims. Appellees denied liability on the counterclaims.
{¶ 3} After the parties submitted the case to the trial court on stipulations of fact, the court issued a decision and judgment in favor of appellees and granted them a declaratory judgment to use the “leach field” (septic system) on appellants’ property. The court also found “no just reason for delay” and scheduled the matter for a hearing on damages. After appellees dismissed their “claims” for damages, the court issued an entry denoted as a “Final Appealable Order.” The court repeated that it granted declaratory judgment to appellees and enjoined appellants from interfering with appellees’ use of the “leach field.” The court further noted that this “order is a final appealable order pursuant to Ohio Civil Rule 54.” This appeal followed.
{¶ 4} Before we address the assignments of error, we must resolve a threshold jurisdictional issue. Ohio courts of appeal have appellate jurisdiction over “final appealable orders.”
{¶ 5} The problem in the case sub judice is that at least one issue appears to remain pending. Before we get to this issue, we note that although the trial court did not formally enter judgment against appellants to resolve their counterclaims, the declaratory judgment(s) in favor of appellees rendered those claims moot. See e.g. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 21, 540 N.E.2d 266; Wise v. Gursky (1981), 66 Ohio St.2d 241, 20 O.O.3d 233, 421 N.E.2d 150, at the syllabus. Appellees also dismissed their various “claims”
{¶ 6} When multiple “claims” are involved, as is the case here, a judgment must also satisfy the requirements of Civ.R. 54(B). State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 776 N.E.2d 101, 2002-Ohio-5315, at ¶5; Noble v. Colwell (1989), 44 Ohio St.3d 92, 540 N.E.2d 1381, at the syllabus. A judgment satisfies
{¶ 7} The September 30, 2010 judgment in the case sub judice does not contain the express “no just reason for delay” determination. Rather, it states “[t]his order is a final appealable order pursuant to Ohio Civil Rule 54.” We reluctantly conclude that this is inadequate tо comply with
{¶ 8} We acknowledge that, although the September 30, 2010 judgment does not
{¶ 9} First,
{¶ 10} Second, and more important, we are not persuaded that an express finding “no just reason for delay” in the September 30th entry would have actually made a difference. Although the negligence claim was asserted in count four of appellees’ complaint, we believe that the action below posited only one actual “claim for relief” for purposes of
“The Ohio Supreme Court gave a more precise definition in 1981 stating that a claim for relief, for purposes of [Civ.R. 54(B) ], was synonymous with a ‘cause of action.’ A ‘cause of action’ is that set of facts which establish or give rise to a ‘right of action,’ the existence of which affords a party the right to judicial relief. ‘Cause of action’ is to be distinguished from the ‘action’ itself, which is a judicial proceeding brought in a court of law to vindicate the cause of action. Thesе distinctions are critically important because an action (whether in the form of a complaint, cross-complaint or counter-complaint) may contain numerous ‘cоunts,’ ‘theories,’ or ‘demands’ for relief but still encompass only a single ‘cause of action’ or ‘claim for relief.’ For instance, where a person suffers personal injury and propеrty damage as the result of a wrongful act, there is only a single ‘cause of action’ even though the complaint asserts counts in battery and trespass. Summary judgment rendered on one оf those counts, while the other count remains pending, would not be final and appealable even with a finding of ‘no just reason for delay.” (citations omitted)
{¶ 11} Appellees’ claim for relief, for purposes of
{¶ 12} Accordingly, for all these reasons, we conclude we have no jurisdiction to review this case and we hereby dismiss this appeal.
APPEAL DISMISSED.
JUDGMENT ENTRY
It is ordered that the appeal be dismissed and that appellees recover of appellants costs herein tаxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment intо execution.
A certified copy of this entry shall constitute that mandate pursuant to
Kline, J.: Concurs in Judgment & Opinion
McFarland, J.: Concurs in Judgment Only
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further aрpeal commences from the date of filing with the clerk.