Mynes v. BrooksMynes v. Brooks
Scott L. Braum, Dayton, Ohio, for appellants, JDG Home Inspections, Inc., d/b/a The HomeTeam Inspection Service and Tim Gambill.
Kristin E. Rosan and Timothy G. Madison, Columbus, Ohio, for appellees.
Kline, J.:
{¶1} JDG Home Inspection, Inc., d/b/a the HomeTeam Inspection Service, and Tim Gambill (collectively “JDG”) appeal the judgment of the Scioto County Court of Common Pleas in favor of Timothy and Janeen Mynes. The court granted the Mynes’
I.
{¶2} The Mynes contracted to purchase a home in Portsmouth. Before the closing, the Mynes contracted with JDG to perform a general home inspection. The agreement between JDG and the Mynes specifically states that:
Any controversy or claim arising out of or related to this Agreement, its breach, or the Report must be settled by binding arbitration in accordance with the rules of the American Arbitration Association, and judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction.
{¶3} The Mynes filed a complaint against Otis and Judy Brooks (“Brooks”), Fort Hills Estate, Inc. (“Fort Hills”), John Estep, d/b/a John R. Estep Realty (“Estep”), The HomeTeam Inspection Service, d/b/a JDG Home Inspections, Inc., Tim Gambill, John Doe defendants and Carl Webster. Webster was later dismissed from the case. The complaint asserted claims of breach of fiduciary duties, failure to disclose, negligence, and respondeat superior against JDG. The complaint also asserted a number of other causes of action against the other defendants.
{¶4} JDG moved to stay the claims against them pending arbitration. The motion represented that the “requested stay does not affect [Mynes’] claims against the other defendants, and such can continue in the ordinary course.” The court entered an agreed order granting JDG’s motion requesting stay pending arbitration.
{¶5} The Mynes filed a
{¶6} JDG appeals and asserts the following assignment of error: “THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT: 1) CONSIDERED AND THEN, WITHOUT A HEARING, GRANTED [MYNES’] CIVIL RULE 60(B) MOTION FOR RELIEF FROM THE AGREED TRIAL COURT ORDER OF SEPTEMBER 5, 2006, AND 2) WITHOUT ANY DISCOVERY, FULL BRIEFING, OR A HEARING, SUA SPONTE, DENIED [JDG’S] MOTION TO STAY CLAIMS PENDING ARBITRATION.”
II.
{¶7} Initially, we address the threshold issue of whether JDG appealed a final, appealable order.
{¶8} 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
{¶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
{¶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} A trial court‘s decision regarding a proper
{¶13} Thus, we must first determine if the trial court’s order granting a stay of proceedings against JDG pending arbitration was a final order.
{¶14}
{¶15} However, “[w]hile
{¶16} The Supreme Court of Ohio has stated that: “[t]his constitutional amendment recognizes that where conflicts arise between the Civil Rules or Appellate Rules and the statutory law, the rule will control the statute on matters of procedure and the statute will control the rule on matters of substantive law.” Morgan v. W. Elec. Co., Inc. (1982), 69 Ohio St.2d 278, 281. (Citations omitted.) The Court has further recognized that “the effect of
{¶17} Thus, “despite the provision of
{¶18} Here, following the trial court’s order granting a stay of proceedings against JDG pending arbitration, claims remained pending against a number of other parties. The court’s order failed to include any
{¶19} Further, JDG contends that the court’s grant of Mynes motion for “relief,” sua sponte, also acted as a denial of their initial motion for stay pending arbitration. Nevertheless, following such denial, claims remained pending against various other defendants, and the court’s order did not contain
{¶20} Finally, JDG requests this court to reconsider its holding in Redmond. We decline to do so.
{¶21} Accordingly, we dismiss this appeal for lack of jurisdiction.
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED and that costs herein be taxed to the appellants.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas 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 for the Rules of Appellate Procedure. Exceptions.
Abele, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Not Participating.
For the Court
BY: _________________________
Roger L. Kline, Judge
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.