[Cite as Sobin v. Lim, 2012-Ohio-4060.]




                   [Vacated opinion. Please see 2012-Ohio-5544.]



                 Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97952


                                          ROBERT SOBIN

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 CHUN BIN LIM, ET AL.
                                                     DEFENDANTS-APPELLANTS



                                           JUDGMENT:
                                            DISMISSED

                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-727635

        BEFORE: Stewart, P.J., Boyle, J., and Kilbane, J.
      RELEASED AND JOURNALIZED:   September 6, 2012




ATTORNEYS FOR APPELLANTS

H. Alan Rothenbuecher
Jay E. Krasovec
Ice Miller, LLP
Fifth Third Center
600 Superior Avenue, East
Suite 1701
Cleveland, OH 44115


ATTORNEY FOR APPELLEE

Alan J. Rapoport
55 Public Square
Suite 1717
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} Plaintiff-appellee Robert Sobin, a former employee of defendant-appellant

Trionix Research Laboratory and its majority shareholder, defendant-appellant Chun Bin

Lim, filed this declaratory judgment seeking a declaration of whether he was a

shareholder of Trionix and, if so, the value of his shares. The court conducted a trial on

the issue and held that Sobin is a Trionix shareholder, but deferred valuing those shares

until a later hearing. Lim and Trionix appealed before the court could determine the

value of the shares. We have repeatedly held that a judgment on liability without a

concomitant judgment on damages is not a final order, so we are compelled to dismiss

this appeal.

       {¶2} Sobin’s complaint alleged that, while a former Trionix employee, he

purchased shares of stock in the corporation in 1987 and 1988. He sought a declaration

of his current ownership rights and a valuation of those shares.           Trionix and Lim

counterclaimed, alleging that Sobin sold his shares back to the corporation in 1991 and

1992. They also argued that Sobin should be estopped from asserting ownership rights

because he had ceased exercising any rights as a shareholder after 1992.

       {¶3} The court held that the payments Sobin received in 1991 and 1992 were

documented by Trionix as “back-pay” and “loan reimbursement,” respectively. Sobin

treated these payments as income for federal tax purposes rather than as capital gains,
thus demonstrating that there was no meeting of the minds on whether these payments

were for the repurchase of Trionix stock. The court also noted that Lim received similar

payments at the time, and that he likewise treated these payments as income on his federal

tax returns. Finally, the court found it convincing that neither party appeared to treat the

1991 and 1992 payments as a stock sale because Sobin did not surrender his stock nor did

Trionix demand that he surrender the certificates. The court thus ruled in Sobin’s favor

on his complaint and denied the counterclaims asserted by Trionix and Lim. The court

held that “[a] hearing is set for February 27, 2012 at 9:30 AM to address the value of

Plaintiff’s 655 shares of Trionix.” Trionix and Lim appealed on February 14, 2012,

before the court could conduct the valuation hearing. The court subsequently entered an

order nunc pro tunc to state “there is no just cause for delay.”

       {¶4} Our appellate jurisdiction is limited to reviewing orders that are both final

and appealable. An order is “final” if it meets the criteria set forth in R.C. 2505.02. An

order is “appealable” if it satisfies Civ.R. 54(B). Chef Italiano Corp. v. Kent State Univ.,

44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus. If an order is not both final and

appealable, we have no jurisdiction to hear an appeal. See Section 3(B)(2), Article IV,

Ohio Constitution; Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540

N.E.2d 266 (1989).

       {¶5} “As a general rule, even where the issue of liability has been determined, but

a factual adjudication of relief is unresolved, the finding of liability is not a final

appealable order even if Rule 54(B) language was employed.” Noble v. Colwell, 44
Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989) (footnote omitted). This is because orders

determining liability and deferring the issue of damages do not determine the action or

prevent a judgment. State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d

543, 546, 684 N.E.2d 72 (1997), citing State ex rel. A & D Ltd. Partnership v. Keefe, 77

Ohio St.3d 50, 53, 671 N.E.2d 13 (1996).

       {¶6} The court declared Sobin’s shareholder rights but deferred any ruling on the

value of those shares. Under Noble, the order declaring liability was not final at the time

Trionix and Lim filed their notice of appeal.

       {¶7} It is of no consequence that the court certified that there was no just reason

for delay pursuant to Civ.R. 54(B). “‘Civ.R. 54(B) does not alter the requirement that an

order must be final before it is appealable.’” Gen. Acc. Ins., 44 Ohio St.3d at 21, quoting

Douhitt v. Garrison, 3 Ohio App.3d 254, 255, 444 N.E.2d 1068 (9th Dist.1981). The

only exception to this rule is “where the computation of damages is mechanical and

unlikely to produce a second appeal because only a ministerial task similar to assessing

costs remains.” State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543,

546, 684 N.E.2d 72 (1997). Thus, “if ‘only a ministerial task similar to executing a

judgment or assessing costs remains’ and there is a low possibility of disputes concerning

the parties’ claims, the order can be appealed without waiting for performance of that

ministerial task.” CitiMortgage v. Arnold, 9th Dist. No. 25186, 2011-Ohio-1350, at ¶ 7,

citing State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d at 546.
       {¶8} By setting the share valuation issue for an evidentiary hearing, it appears that

the court’s task of valuing Sobin’s shares will be more than a mere ministerial task. We

therefore find that we lack jurisdiction to hear this appeal.

       {¶9} Dismissed.

       It is ordered that appellee recover of appellants his costs herein taxed.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

MARY J. BOYLE, J., and
MARY EILEEN KILBANE, J., CONCUR
