Law Office of Natalie F. Grubb v. BolanLaw Office of Natalie F. Grubb v. Bolan
Civil Appeal from the Chardon Municipal Court, Case No. 2007 CVF 520.
Judgment: Appeal dismissed.
Natalie F. Grubb and John S. Lobur, Grubb & Associates, L.P.A., 437 West Lafayette Road, Ste. 260-A, Medina, OH 44256 (For Plaintiff-Appellant and Third Party Defendant-Appellant).
R. Russell Kubyn, The Kubyn Law Firm, 8373 Mentor Avenue, Mentor, OH 44060 (For Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶2} On May 3, 2007, NFG filed a complaint against Kelly Bolan for failure to pay legal services rendered. Ms. Bolan later filed an answer accompanied by a counterclaim and third-party complaint which named Ms. Grubb as third-party defendant. Ms. Bolan‘s counterclaim asserted that Ms. Grubb committed malpractice in representing her in a previous case.
{¶3} On September 7, 2007, NFG and Ms. Grubb filed an answer to Ms. Bolan‘s counterclaim/third-party complaint. In addition to answering the pleadings, NFG and Ms. Grubb alleged a claim for malicious prosecution against Ms. Bolan. They further filed a motion for sanctions pursuant to
{¶4} On October 22, 2007, NFG and Ms. Grubb filed a motion for attorney fees and costs against Ms. Bolan and Mr. Kubyn also pursuant to
{¶5} On April 18, 2008, several days before the magistrate issued his decision, Ms. Bolan, via newly retained counsel, filed a pleading captioned “Suggestion of Stay.” The pleading sought to notify the trial court that a “bankruptcy stay” had been entered by the federal court pursuant to
{¶6} On May 16, 2008, appellants filed their notice of appeal of the trial court‘s April 28, 2008 decision. Ms. Bolan later filed a motion to stay the appellate proceedings, asserting all further proceedings related to the underlying case should be stayed pending a final order from the United States Bankruptcy Court. On June 5, 2008, this court granted Ms. Bolan‘s motion. On January 28, 2009, Ms. Bolan was discharged in bankruptcy. As a result, the stay of proceedings was lifted by a judgment of this court entered on May 26, 2009. The record was subsequently transmitted and the parties filed their respective briefs.
{¶8} “[1.] The trial court erred to the prejudice of Appellants as the trial court failed to make a factual finding or legal conclusion that the Appellee violated Civil Rule 11.
{¶9} “[2.] The trial court erred to the prejudice of Appellants as the trial court failed to make a factual finding or legal conclusion that the Appellee violated O.R.C. Section 2323.51.
{¶10} “[3.] The trial court erred to the prejudice of Appellants as the trial court failed to make a factual finding or legal conclusion that the Appellants presented a malicious prosecution counterclaim.”
{¶11} We need not broach the merits of appellants’ arguments because, as pointed out in our introductory paragraph, the order from which the instant appeal was taken is not final. To invoke the jurisdiction of an appellate court, the subject order or judgment must be final. Davis v. Border, 170 Ohio App.3d 758, 761, 2007-Ohio-692; see, also, Klein v. Bendix--Westinghouse Automotive Air Brake Co. (1968), 13 Ohio St.2d 85, 86. In order to be final and appealable, an order must comply with
{¶12}
{¶13} “An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
{¶14} “(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
{¶16} “(3) An order that vacates or sets aside a judgment or grants a new trial;
{¶17} “(4) An order that grants or denies a provisional remedy and to which both of the following apply:
{¶18} “(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
{¶19} “(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action. ***”
{¶20} First of all, a necessary criterion for finality under
{¶21} Additionally, the denial of the motion neither determined the underlying action nor prevented a judgment on the complaint or counterclaim. Appellants’ breach
{¶22} Further, the judgment was not entered in a special proceeding. Rather, the court‘s denial of the motion occurred after a pretrial hearing which was ancillary to an underlying action for breach of contract. A breach of contract action is an ordinary civil proceeding in which a party seeks damages. Such an action does not qualify as a special proceeding. Walters v. The Enrichment Ctr. of Wishing Well, Inc., 78 Ohio St.3d 118, 121-122, 1997-Ohio-232; see, also Mattison v. Khalil, 6th Dist. No. L-07-1393, 2008-Ohio-716, at ¶16. Given these reasons,
{¶23} The only remaining provision of the statute that could apply is
{¶24} We recognize that several days before the magistrate entered his decision, Ms. Bolan filed a pleading suggesting the underlying proceedings be stayed pending resolution of federal bankruptcy proceedings into which she had recently entered. On the same day the magistrate entered his decision overruling appellant‘s motion for sanctions, he issued an additional order granting the stay “until further order
{¶25}
{¶26} Because we conclude the judgment was not a final, appealable order under
MARY JANE TRAPP, P.J.,
TIMOTHY P. CANNON, J.,
concur.