645 N.E.2d 156 | Ohio Ct. App. | 1994
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *472 Appellants and cross-appellees, A.W. Tavern, Inc. and Wayne Trotman, appeal from the dismissal of their counterclaim against appellee and cross-appellant, Charles Diprima. Diprima cross-appeals from the same court's decision. For the reasons that follow, the judgment is affirmed in part and the appeal issua sponte dismissed in part.
On July 11, 1991, appellants answered and counterclaimed against Diprima for violation of their right to a peaceful and quiet enjoyment possession of the rental premises because appellee failed to maintain the premises, the act of which resulted in the city of Cleveland's condemnation of the building. Neither party prayed for any specific amount in damages.
On January 13, 1992, Diprima's complaint was dismissed for failure to comply with court order, specifically for Diprima's failure to answer interrogatories after he was ordered by the court to answer.
On February 26, 1993, appellants' complaint was also dismissed with prejudice for failure to pray for a specific amount of damages pursuant to Civ.R. 54(C).
"The court committed prejudicial error in dismissing the complaint of the plaintiff with prejudice." *473
Diprima, in his sole assignment of error, argues that the trial court erred in dismissing his complaint for failure to answer interrogatories. Diprima argues that the court's action was drastic.
We must begin by correcting the error in Diprima's appellate procedure. Diprima was the plaintiff below whose complaint was dismissed. Appellants' counterclaim is a separate and independent action from Diprima's. Diprima is required to file a separate notice of appeal as an independent action and argue it as such and not label his appeal as a cross-appeal.1 See App.R. 3(C)(1).
Diprima's mistake notwithstanding, sua sponte, Diprima's appeal is dismissed for lack of jurisdiction. See App.R. 4(A) and App.R. 4(B)(5). Diprima's appeal is untimely.
"I. The dismissal of appellants' causes of action for failure to amend their demands is reversible error.
"II. The trial court erred in dismissing the case belowwith prejudice.
"III. The trial court erred in dismissing the case below prior to the presentation of evidence." (Emphasis added.)
Appellants' three assignments of error touch upon one issue and will be treated together.
This appeal calls for us to resolve whether the trial court properly dismissed appellants' complaint with prejudice in light of the Ohio Supreme Court's ruling in Rockey v. 84 Lumber Co.
(1993),
It is our opinion that the trial court properly dismissed appellants' complaint because Rockey v. 84 Lumber Co., supra, is not dispositive of this case. Appellants' argument would have been viable if this case were a tort action. It is an action in contract and is governed by Civ.R. 8(A) and 54(C). Diprima filed a complaint alleging a breach of the lease agreement. Appellants counterclaimed, *474
alleging a breach of quiet enjoyment, among other breaches. There is nothing in appellants' claims that sounded in tort that would invoke the application of the pleading requirements of the defunct R.C.
Appellants' argument regarding their compliance with R.C.
"[MR. MANCINO:] Your Honor, further, for our motion to dismiss, I will draw the Court's attention to the prayer in both the defendant's cross-claim and also complaint of the defendant, Wayne Trotman, as intervenor in this case, your Honor.
"I would also draw the Court's attention to Rule 54(C). They have not asked for any money damages. Even if they were entitled to a judgment in this case, the judgment would have to be zero amount of money, your Honor. And on the basis of that, we would ask this Court to dismiss the complaint at this time.
"THE COURT: How do you reply to the prayer? That's what concerns me. I looked at these prayers, no money. [Sic.]
"MR. LILLIE: Your Honor, relative to the prayer, under 54(C), it has been our position, previously, it's been our position all along, and it's been set forth in earlier pleadings that, among other things, that this is a case of equitable nature, and that, among other things, the Court must first find that the lease was, in fact, ratified. And then, as a result of that, damages can be established by virtue of an expert.
"THE COURT: But you to have [sic] set forth what you want. It doesn't say how much. I just dismissed a case on this same question. I don't have an option here. All the law is in here. I have a brief here with Supreme Court cases; Ann McManaman's [sic, McManamon's] decision here about two years ago, that says if you don't have an amount, it's no cause of action at all. And you have to amend seven days before, under Rule 54 that he brought up. There has to be an amendment if you file like this and do not have an amount. The amendment must be filed seven days before the trial, stating forth how much money you want. Otherwise, you get zero. Ann McManaman [sic] says there's no cause of action at all."
Nowhere in the transcript did appellants mention R.C.
We do not consider the trial court's dismissal with prejudice as an abuse of discretion. The trial court could have waited until after trial and then awarded a zero amount to appellants since Civ.R. 54(C) limits judgment to the amount demanded in the complaint. Blosser v. Carter (1990),
Appellants' assignments of error are overruled.
The judgment of the trial court is affirmed. The appeal is dismissed in part and affirmed in part.
Judgment accordingly.
NAHRA, C.J., and NUGENT, J., concur.