Stepp v. StarrettStepp v. Starrett
Sky Pettey, Lavelle and Associates, Athens, Ohio for Appellant.
Stephen C. Rodeheffer, Portsmouth, Ohio for Appellees.
Hess, J.
{¶1} Shawn E. Stepp, II appeals thе trial court’s order dismissing his claims against Michele Starrett, individually and in her capacity as the trustee for the Lawrence G. Daft Revocable Living Trust Agreement; the Lawrence G. Daft Revocable Living Trust Agreement; and Daft Farms Family Limited Partnership. Steep sought an accounting and alleged breaches of the limited partnership agreement and breaches of the fiduciary duties of loyalty and care. The trial court granted the defendants’ motion for summary judgment on the ground that Stepp lacked standing, dismissed Stepp’s amended complaint, and assessed сosts against Stepp. However, the action involved multiple claims and parties. The counterclaim of Daft Farms Family Limited Partnership against Stepp remains pending. The judgment entry originally appealed fails to include a
{¶2} We ordered Stepp to file a memorandum addressing the jurisdictional issue. In response, the parties obtained a nunc pro tunc entry from the trial court that contаined
LEGAL ANALYSIS
{¶3} Before we reach the merits of the appeal, we must determine if we have jurisdiction. Appellate courts “have such jurisdiction as may be provided by law to review аnd affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district[.]”
{¶4} Under
{¶5} When a court issues a judgment that disposes of some claims but leaves other claims pending, the order is final and appealable only if the judgment compliеs with
(B) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party сlaim, and whether arising out of 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 upon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delаy, 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 аction 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 аnd liabilities of all the parties.
{¶6}
{¶7} In this case, the trial court‘s decision granting defеndants’ summary judgment on Stepp’s claims did not address Daft Farms’ counterclaim. And the judgment entry, though declaring itself to be a final appealable order, did not contain
{¶8} In response, Stepp and Starrett filed a joint response in which they agreed that the court’s entry did not contain
{¶9} However, if the trial court intended to make a factual determination that an interlocutory appeal would lead to judicial economy and would be the most effectivе use of the parties’ resources, but failed through oversight to make such a determination, it cannot use a “nunc pro tunc” order to correct the December 3, 2018 order. “A nunc pro tunc order cannot be used to supply omitted action, or to indicate what the court might or
{¶10} We question the use of a “nunc pro tunc” entry to add
{¶11} We must dismiss an appeal for lack of jurisdiction when the order lacks
{¶12} Because this appeal is dismissed, the December 3, 2018 interlocutory order will be subject to substantive revision at any time before the entry of judgment adjudicating all the claims of all parties.
{¶13} Upon the dismissаl of this appeal, the trial court may enter an amended judgment entry that includes the proper
{¶14} The judgment is not a final appealable order and this court is without jurisdiction to consider the matter on its merits. The appeal is dismissed and the August 9, 2019 nunc pro tunc entry is void.
{¶15} The clerk shall serve a copy of this order on all counsel of record at their last known addresses by ordinary mail.
APPEAL DISMISSED. COSTS TO APPELLANT. IT IS SO ORDERED.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge