THIRD FEDERAL SAVINGS & LOAN, ETC. v. CAROL KRYCH, ET AL.
No. 99762
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 10, 2013
[Cite as Third Fed. S. & L. v. Krych, 2013-Ohio-4483.]
PLAINTIFF-APPELLEE
vs.
DEFENDANTS-APPELLANTS
JUDGMENT: DISMISSED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-634597
BEFORE: Blackmon, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: October 10, 2013
ATTORNEY FOR APPELLANTS
Susan M. Gray Attorneys and Counselors at Law
Ohio Savings Bank Building
22255 Center Ridge Road
Suite 210
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Christopher S. Casterline
Eric T. Deighton
James L. Sassano
Carlisle, McNellie, Kramer & Ulrich, Co., L.P.A.
24755 Chagrin Blvd.
Suite 200
Cleveland, Ohio 44122
PATRICIA ANN BLACKMON, J.:
- I. The trial court erred as a matter of law and to the prejudice of appellants in granting appellee‘s motion for summary judgment, in part.
- II. The trial court erred as a matter of law in not construing counterclaims as affirmative defenses.
{¶2} Having reviewed the record and pertinent law, we dismiss the appeal for lack of a final, appealable order. The apposite facts follow.
Facts
{¶3} On September 4, 2007, Third Federal filed a complaint of foreclosure against the borrowers for nonpayment of their mortgage in the amount of $157,000. The borrowers filed an answer to the complaint in which they raised affirmative defenses and counterclaims. The counterclaims asserted were: violation of the Truth in Lending Act (“TILA“), violation of the Real Estate Settlement Procedures Act (“RESPA“), improvident lending, negligence and gross negligence, unconscionability, unjust enrichment, breach of duty of good faith and fair dealing, failure to negotiate in good faith, and failure to mitigate damages.
{¶4} Third Federal filed a motion for summary judgment on its foreclosure claim and on the borrowers’ counterclaims, which the borrowers opposed. The trial court denied Third Federal‘s motion for summary judgment on its foreclosure claim and on the borrowers’ claims under the TILA and RESPA. The trial court, however, granted
Final, Appealable Order
{¶5} We dismiss the appeal for lack of a final appealable order. Ohio courts of appeals have appellate jurisdiction over “final appealable orders.”
{¶6} An order that adjudicates 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 both
{¶7} In the instant case, the trial court added the
{¶8} We conclude that in the instant case, judicial economy will not be served by separating the claims for review. There are certain issues to consider prior to allowing an appeal pursuant to
An order that disposes of fewer than all of the claims in an action, and contains a Civ.R. 54(B) determination that there is no just reason for delay, is appealable if the claim or claims disposed of are entirely disposed of and either of the following applies. First, are the disposed of claims factually separate and independent from the remaining claims? An example would be claims that are based on different transactions or occurrences such as one claim for slander and another for negligence because of an automobile accident. Second, if the claims are not factually separate and independent, do the legal theories presented in the disposed of claims require proof of substantially different facts and/or provide for different relief from the remaining claims.
Walker v. Firelands Community Hosp., 6th Dist. Erie No. E-06-023, 2006-Ohio-2930, ¶ 23. See also Salata v. Vallas, 159 Ohio App.3d 108, 2004-Ohio-6037, 823 N.E.2d 50 (7th Dist.) (In spite of
{¶9} Here the claims that are pending are interrelated to the claims that the court entered summary judgment on. Part of the borrowers’ TILA counterclaim, which is still pending, alleges that Third Federal failed to adequately determine whether the borrowers qualified for the loan. This same allegation exists in several of the counterclaims that the trial court entered judgment. Additionally, some of the claims that the trial court granted summary judgment on also alleged that Third Federal failed to provide legally required notice regarding the terms of the note, that is also the allegation encompassed in the pending TILA and RESPA counterclaims.
{¶10} For these reasons, we believe that judicial economy and justice are better served by resolving these claims together. Therefore, we conclude that the trial court‘s judgment is not a final, appealable order, and we lack jurisdiction to conduct a review of the appeal. Accordingly, we hereby dismiss the appeal.
{¶11} Appeal dismissed.
It is ordered that appellants and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
PATRICIA ANN BLACKMON, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR