Fagan v. BoggsFagan v. Boggs
Richard Cordray, Ohio Attorney General, and James R. Patterson, Ohio Assistant Attorney General, Reynoldsburg, Ohio, for the Appellant.
David G. Cox, Columbus, Ohio, for the Appellees.
McFarland, J.:
{¶1} Appellant, Robert J. Boggs, Director, Ohio Department of Agriculture, appeals the decision of the Washington County Court of Common Pleas, which issued a declaratory judgment and injunction in favor of Appellees, Linda Fagan and Donna Betts, with regard to a withdrawal from distribution order issued in connection with Appellees’ manufacture and distribution of pet food. Appellant also appeals the trial court‘s award of attorneys fees to Appellees. On appeal, Appellant contends that the trial
Facts
{¶2} Appellees, Linda Fagan and Donna Betts, are manufacturers of pet food, the primary ingredient of which is milk, or raw milk, and have been in this business since 2001 and 2002, respectively. Appellees were previously issued commercial feed registrations by the Ohio Department of Agriculture, “ODA,” and sold their products at local farmers markets. On February 14, 2006, Appellees were issued “Stop Sale/Withdraw from Distribution” orders from the Ohio Department of Agriculture, pursuant to
{¶3} Subsequently, by letters dated April 24, 2006, the ODA notified Appellees of their intent to revoke Appellees’ commercial feed registrations pursuant to
{¶4} Then, on July 31, 2006, Appellees filed a complaint for declaratory judgment and injunctive and other relief against the ODA. In their complaint, Appellees alleged that 1)
{¶5} On September 24, 2007, Appellees filed an amended complaint for declaratory judgment and injunctive and other relief. The ODA filed another answer on October 9, 2007, followed by a motion for summary judgment on November 16, 2007, which was ultimately denied by the trial court. The matter proceeded to a trial on the merits to the court on August 25, 2008. After hearing the evidence presented by both parties, the trial court ordered closing arguments, as well as findings of fact and conclusions of law to be submitted by the parties. The trial court then adopted, almost verbatim, Appellees proposed findings of fact and conclusions of law, and issued its order and decision on October 29, 2008.
{¶7} Subsequently, and as essentially invited to do by the trial court‘s order, Appellees filed a post-trial motion for attorney‘s fees and costs on
Assignments of Error
“I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN HOLDING THAT APPELLANT DENIED APPELLEES DUE PROCESS AND THE EQUAL PROTECTION OF THE LAWS IN APPLYING
II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING APPELLEES ATTORNEY FEES.
III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ISSUING AN INJUNCTION AGAINST FUTURE ENFORCEMENT BY APPELLANT OF OHIO‘S FEED LABEL LAWS AGAINST APPELLEES’ FEED PRODUCT LABELS.
IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN HOLDING THAT APPELLANT ENGAGED IN ILLEGAL RULE MAKING.”
{¶8} Initially, we address the threshold issue of whether the judgment entry appealed is a final, appealable order. Appellate courts have no “jurisdiction to review an order that is not final and appealable.” Oakley v. Citizens Bank of Logan, Athens App. No. 04CA25, 2004-Ohio-6824, ¶ 6, citing Section 3(B)(2), Article IV of the Ohio Constitution; General Acc. Ins. Co. v. Ins. Co. of N. America (1989), 44 Ohio St.3d 17, 540 N.E.2d 266; Noble v. Colwell (1989), 44 Ohio St.3d 92, 540 N.E.2d 1381. Further, “[a] trial court‘s finding that its judgment is a final appealable order is not binding upon this court.” In re Nichols, Washington App. No. 03CA41, 2004-Ohio-2026, ¶ 6, citing Ft. Frye Teachers Assn. v. Ft. Frye Local School Dist. Bd. of Edn. (1993), 87 Ohio App.3d 840, 843, fn. 4, 623 N.E.2d 232, citing Pickens v. Pickens (Aug. 25, 1992), Meigs App. No. 459, 1992 WL 209498. This court has “no choice but to sua sponte dismiss an appeal that is not from a final appealable order.” Id. at ¶ 6, citing Whitaker-Merrell v. Geupel Constr. Co. (1972), 29 Ohio St.2d 184, 280 N.E.2d 922.
{¶9} “An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment” or “[a]n order that affects a substantial right made in a
{¶10} An order adjudicating “one or more but fewer than all the claims or the rights and liabilities of fewer than all the parties must meet the requirements of
{¶11} As this court previously noted in Jones v. Burgess, Pickaway App. No. 07CA37, 2008-Ohio-6698 at ¶11, the Supreme Court of Ohio recently held that “[w]hen attorney fees are requested in the original pleadings, an order that does not dispose of the attorney-fee claim * * * is not a final, appealable order.” Internatl. Bhd. Of Electrical Workers, Local Union No. 8 v. Vaughn Industries, L.L.C., 116 Ohio St.3d 335, 2007-Ohio-6439, 879 N.E.2d 187, paragraph two of the syllabus. This court has continuously held that “[a] determination of liability without a determination of damages is not a final appealable order because damages are part of a claim for relief, rather than a separate claim in and of themselves.” Shelton v. Eagles Foe Aerie 2232 (Feb. 15, 2000), Adams App. No. 99CA678, 2000 WL 203857, citing Horner v. Toledo Hospital (1993), 94 Ohio App.3d 282, 640 N.E.2d 857.
{¶12} Where a prayer for relief requests a particular type of damages and the court fails to specifically adjudicate that aspect of the damages requested, no final appealable order exists. See Britton v. Gibbs Assoc., Highland App. No. 06CA34, 2008-Ohio-210, ¶ 12; In re Sites, Lawrence App. No. 05CA39, 2006-Ohio-3787, ¶ 16; see, also, Miller v. First International Fidelity & Trust Building, Ltd., 165 Ohio App.3d 281, 2006-Ohio-187, 846 N.E.2d 87, ¶ 36. In Jones v. McAlarney Pools, Spas & Billiards, Inc., Washington App. No. 07CA34, 2008-Ohio-1365, ¶ 11, this Court interpreted the syllabus in Vaughn “in light of its underlying facts” and applied the “broad syllabus language” only to those instances where attorney fees are requested pursuant to a “specific statutory or rule authority[.]” See, also, Jones v. Burgess at ¶12. Absent an attorney fee request under specific authority, appellate courts should “treat the fee
{¶13} Here, Appellees prayed for attorney fees in their amended complaint, specifically arguing that they were entitled to such as “prevailing parties” under
{¶14} Here the trial court‘s order specifically reserved the right to award further fees subsequent to its decision. As such, the judgment clearly contemplated further action by the court and therefore is not a final appealable order. Nationwide Assur. Inc, v. Thompson at ¶ 8, citing Bell v. Horton at 696. Accordingly, we dismiss this appeal because we lack of jurisdiction to consider it.
APPEAL DISMISSED.
It is ordered that the APPEAL BE DISMISSED and that the Appellees recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Kline, P.J. and Harsha, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Judge Matthew W. McFarland
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.