Wolford v. Newark City School District Board of Education

596 N.E.2d 1085 | Ohio Ct. App. | 1991

Plaintiff-appellant, Julia Wolford, procured a default judgment against the Board of Education of the Newark City School District in the Licking County Common Pleas Court. The default judgment continued the matter for a determination of damages. Thereafter, the board filed a motion for Civ.R. 60(B) relief from judgment, and the court eventually granted Civ.R. 60(B) relief.

From that judgment, the plaintiff appeals, claiming favor of R.C. 2505.02 and Chef Italiano Corp. v. Kent State Univ. (1989),44 Ohio St.3d 86, 87-88, 541 N.E.2d 64, 66-67, wherein the court held:

"R.C. 2505.02 defines three types of final orders: (1) an order affecting a substantial right in an action which in effect determines the action and prevents a judgment; (2) an order affecting a substantial right made in a special proceeding or made upon summary application after judgment; or (3) an order vacating or setting aside a judgment or granting a new trial. * * *"

The genesis of this right of appeal where the work of the trial court is not completed is GTE Automatic Electric v. ARCIndustries (1976), 47 Ohio St.2d 146, 1 O.O.3d 86,351 N.E.2d 113.

The unique hitch in this case is that the default judgment, from which relief was granted, was itself not a final, appealable order. Chef Italiano, supra.

Appellee persuasively argues that a default judgment as to only part of the claim is distinguishable from the default judgment reviewed and held reviewable in GTE Automatic, supra.

Appellant, by rejoinder, persuasively argues that if the original default judgment was not a final judgment, Civ.R. 60(B) relief was inappropriate.

This issue engraves one more chapter onto the continuing saga frustrating Ohio lawyers as to what is, or is not, a final, appealable order.

We conclude that because the judgment vacated was itself not a final, appealable order, the judgment vacating the partial, incomplete judgment is not a final, appealable order.

The motion of appellee is sustained, and the cause is dismissed for want of appellate jurisdiction.

Motion sustained.

SMART and GWIN, JJ., concur.