Lee v. Joseph Horne Co., Inc.Lee v. Joseph Horne Co., Inc.
Plaintiffs-appellants Mary K. Lee (“Mary”) and her husband Regis Lee (“Regis”) timely appeal from two judgments of the Cuyahoga County Common Plea Court as follows: (1) an April 12, 1994 judgment granting the
Mary was an employee of Jewel Masters of Pennsylvania, Inc. (“Jewel Masters”), which, pursuant to a license agreement, was permittеd to offer jewelry for sale to the public on the premises of Horne. On November 8, 1991, Mary was injured at Horne while acting within the course and scope of her еmployment *321 with Jewel Masters. Specifically, the door of a jewelry case allegedly fell open, struck Mary and caused, inter alia, a fracture to her nose.
Thereafter, Mary and her husband Rеgis commenced the within personal injury action against only Horne. Mary sought $25,000 in damages for personal injury while Regis alleged loss of consortium and services of his wife and sought $15,000 in damages. On November 5, 1993, notice of the within complaint was served on Horne. Horne, however, failed to file an answer.
On January 3, 1994, nearly two months after thе complaint had been filed, plaintiffs moved the trial court for default judgment on the ground that Horne failed to plead or otherwise defend. The trial court, on March 1, 1994, granted the motion for default judgment with respect to only one plaintiff and, in view of the circumstances that followed, we assume the judgment was in favor of Mary rаther than Regis. The March 1, 1994 journal entry stated in relevant part as follows:
“IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that upon evidence, judgment is for plaintiff in the amount of’ Twenty Five Thousand Dollars ($25,000.00) and costs for which judgment is rendered and execution may issue.” (Emphasis added.)
The trial court did not include “no just reason for delay” language in the journal entry; therefore, jurisdiction remained in the trial court.
On April 6, 1994, Horne filed a motion for relief from judgment pursuant to
Thereafter, on April 13, 1994, plaintiffs filed a memorandum in opposition to Horne’s motion for relief from judgment. In its opposition memorandum, plaintiffs argued against the granting of Horne’s
On May 6, 1994, plaintiffs filed a notice of appeal, Cuyahoga App. Nо. 67245, to this court from the April 12, 1994 judgment granting Horne’s motion to vacate. *322 Thereafter, on June 27, 1994, plaintiffs filed a notice of voluntary dismissal of only Regis Lee’s cause of action, ie., for loss of his wife’s consortium and services. On June 30, 1994, the trial court dismissed Regis Lee’s cause of action and plaintiffs, thereafter, filed another notice оf appeal on July 27, 1994, Cuyahoga App. No. 67648, from this judgment. The March 1, 1994 journal entry grant of default judgment now became a final appealable order. We then consolidated the appeals of May 6, 1994 (67245) and July 27, 1994 (67648).
Appellants’ sole assignment of error follows:
“The trial court erred in granting defendant’s motion for relief from judgment pursuant to Rule 60(B) of the Ohio Rules of Civil Procedure.”
This assignment lacks merit.
Bеfore appellants’ assignment of error is reviewed, it must first be determined whether this appellate court possesses subject matter jurisdiction to review the appeal sub judice. As noted supra, the trial court on March 1,. 1994 granted default judgment to only Mary K. Lee and, thus, her husband’s claims for loss of consortium and services remained unadjudicated.
“When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and whether arising out оf the same or separate transactions, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only uрon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of аll the parties.” (Emphasis added.)
In the ease
sub judice,
the March 1, 1994 default judgment adjudicated fewer than all the claims. The journal entry did not contain “no just reason for delay” language. In accordance with
In
Jarrett v. Dayton Osteopathic Hosp., Inc.
(1985),
*323 “An ordеr vacating a judgment that was entered against less than all the parties and in which the trial court did not make an express determination that there was ‘no just reason for delay’ is not a final, appealable order.” See, also, Matrka v. Stephens (1991),77 Ohio App.3d 518 ,602 N.E.2d 1191 .
Thus, it is clear that the April 7, 1994 judgment granting Horne’s
Nevertheless, on June 27, 1994 Regis voluntarily dismissed his claims and the trial court on June 30, 1994 so entered judgment. On June 30, 1994, thereforе, the default judgment and the order vacating the default judgment became final appealable orders. Since appellants filed a timely notice of appeal from the dismissal entry, the appeal sub judice is properly before this appellate court.
In their sole assignment of error, appellants claim the trial court erred when it granted Horne relief from thе default judgment since Horne failed to establish in its
In the case
sub judice,
however,
“Because the judgment entry against [defendant] did not adjudicate the liabilities of all the parties and it did not contаin theCiv.R. 54(B) words of ‘no just reason for delay,’ it was subject to modification. [Defendant’s] motion for relief was improperly labeled aCiv.R. 60(B) motion because it did not seek relief from a final judgment. The motion and the trial cоurt’s order vacating the judgment were instead authorized byCiv.R. 51(B) .” (Emphasis added.)
In
Bodo v. Nationwide Ins. Co.
(1991),
“Inasmuch as the law of the case on this matter is that there was never a final trial court order at that stagе, and the trial court retained jurisdiction,Civ.R. 54(B) was applicable because one of the claims had not been resolved * * *.
{( * * *
*324 “Therefore, a motion for reconsideration was the proper recourse available to the parties at bar. * * *
“Interlocutory orders are subject to motions for reconsideration, whereas judgments and final orders are not.”
In the case
sub judice,
the trial court entered an interlocutory order on March 1, 1994 granting default judgment to only Mary K. Lee. Although Horne, on April 6, 1994, filеd a
Based upon the foregoing analysis, the trial court did not abuse its discretion when it vacated the default judgment upon Horne’s motion for relief from judgment which was improperly labeled a
Judgment affirmed.