[Cite as Cheng v. Haney, 2017-Ohio-199.]


                                      COURT OF APPEALS
                                  DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



LI CHENG, et al.                                 JUDGES:
                                                 Hon. John W. Wise, P. J.
        Plaintiffs-Appellees                     Hon. Patricia A. Delaney, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 16 CAE 06 0025
TIMOTHY HANEY

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                     Criminal Appeal from the Court of Common
                                             Pleas, Case No. 14 CVH 100735


JUDGMENT:                                    Dismissed



DATE OF JUDGMENT ENTRY:                       January 18, 2017



APPEARANCES:

For Plaintiffs-Appellees                     For Defendant-Appellant

MICHAEL J. ANTHONY                           DAVID G. BALE
VINCENT P. ZUCCARO                           BALE AND ASSOCIATES
ANDREW D. RANDOL                             392 Office Parkway, Suite B
ANTHONY LAW, LLC                             Westerville, Ohio 43082
383 North Front Street, LL
Columbus, Ohio 43215                         WILLIAM F. MCGINNIS
                                             Post Office Box 2202
                                             Westerville, Ohio 43086-2202
Delaware County, Case No. 16 CAE 06 0025                                                  2

Wise, P. J.

      {¶1}    Defendant-Appellant Timothy Haney appeals the May 16, 2016, decision of

the Court of Common Pleas, Delaware County, dismissing his cross-claims against

Plaintiffs-Appellees Li Cheng and Smart Art America, LLC.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    In January, 2010, Plaintiff-Appellee Li Cheng began a business relationship

with Defendant-Appellant Timothy Haney. Under their agreement, Appellant designed

consumer goods which were proposed to Appellee to be manufactured by the Appellee's

Chinese factory. Appellee is a resident of China. Appellant lived in Kentucky at the time

they began discussing the agreement.

      {¶3}    The parties entered into a joint venture agreement. Appellee and Appellant

agreed to move the joint venture to a larger metropolitan area in Central Ohio, with which

Appellant was familiar and Appellee was satisfied.

      {¶4}    The parties also formed Smart Art America, LLC, (SAA) as an Ohio limited

liability corporation to facilitate the business and give it an American contracting entity.

Appellee Cheng and Appellant Haney each claim to be the sole owner of SAA.

      {¶5}    On October 3, 2014, Appellee filed a Complaint against Appellant in the

Delaware Common Pleas Court alleging claims of fraud, dishonesty, theft, and conversion.

Appellee also alleged he was the sole owner of SAA and Appellant's employer.

      {¶6}    On October 24, 2014, Appellee also filed an action of forcible entry and

detainer (FE&D) against Appellant in the Delaware Municipal Court. Due to the

interconnection of the residential and commercial claims and Appellant's counterclaim in
Delaware County, Case No. 16 CAE 06 0025                                               3


excess of the Municipal Court jurisdiction, the FE&D action was transferred to the

Delaware County Court of Common Pleas.

      {¶7}   On October 30, 2014, Appellant filed his Answer denying the claims.

      {¶8}   On January 2, 2015, Appellant filed a Motion for his First Amended Answer

and Counterclaim.

      {¶9}   Appellee filed a Memorandum Contra to Defendant and Counterclaimant's

Motion to amend his Answer on January 16, 2015.

      {¶10} In addition, the “Plaintiff Intervenor” Smart Art America LLC filed a Motion

for Leave to file its Intervention Crossclaim against Li Cheng on January 2, 2015, by and

through Appellant as its purported sole owner and chief officer. Appellee filed a

Memorandum Contra on January 16, 2015.

      {¶11} Thereafter, Appellee's counsel withdrew from representation of Appellee

while asserting Appellee failed to communicate with counsel or compensate them for

legal representation. Appellee's counsel provided contact information for future legal

service on Appellee. Appellee's counsel were permitted by the Court to withdraw from

further representation of Appellee on May 27, 2015.

      {¶12} Subsequently, the trial court granted SAA's Intervenor and Cross-claimant's

motion, as Plaintiff, granting its motion to intervene against Appellee on June 8, 2015.

The Court's order granting the motion to Intervene was served on Appellee by the

Delaware County Common Pleas Clerk of Court by regular mail at the address provided

by Appellee at the time of withdrawal of Appellee's counsel.
Delaware County, Case No. 16 CAE 06 0025                                                4


      {¶13} On May 19, 2015, the trial court ordered a hearing on Appellee's eviction

claims, to be heard on June 1, 2015. Appellee was served notice at the address provided

for him pro se.

      {¶14} Appellee failed to appear for the June 1, 2015, hearing and his forcible

detainer claims were dismissed by the trial court with prejudice on June 8, 2015. In

addition, following withdrawal of Appellee's counsel, Appellee failed to respond to any of

the pleadings or engage in prosecuting his action.

      {¶15} On July 13, 2015, Appellant and SAA moved for Default Judgment against

Appellee.

      {¶16} On July 28, 2015, Appellant's and SAA's motion for default judgment was

granted by the trial court. A hearing on the issue of damages was scheduled for

September 21, 2015.

      {¶17} On September 21, 2015, the first day of the damages hearing, the attorneys

who had originally represented Appellee filed a notice of appearance.

      {¶18} Throughout the damages hearing, Appellee Cheng’s attorneys contended

that Cheng is the rightful owner of SAA, and that Appellant Haney and his attorneys have

no authority to claim any interest in SAA or to speak on that company's behalf.

      {¶19} On February 12, 2016, Appellee Cheng moved the trial court to reconsider

its prior ruling in (1) granting Appellant’s motion to intervene in SAA’s behalf and (2)

entering default judgment against Appellee Cheng.

      {¶20} On February 17, 2015, Appellant filed a Memorandum in Opposition in

which he stated that he “simply reincorporate[d] the prior arguments presented to the

court in January 2016.”
Delaware County, Case No. 16 CAE 06 0025                                                5


      {¶21} On May 16, 2016, the trial court granted Appellee’s motion for

reconsideration. In its Judgment Entry, the trial court stated:

             I conclude that Cheng has presented sound arguments supporting

      his request that I undo the default judgments against him last summer. First,

      of course, the orders granting default judgments to Haney and to SAA

      against Cheng were interlocutory orders that did not conclude the

      proceedings in this case. Second, Cheng's apparent four-month lack of

      attention to - and lack of legal representation in - this case was short-lived,

      and he has both before May 12, 2015 and after September 21, 2015

      vigorously pursued his claims and defenses here. Third, he raised his

      request that I vacate the default judgments within a reasonable time,

      bringing that request to me in February 2016 even before the hearing on

      damages had concluded. And finally, I conclude after considering the

      evidence presented at the four-day damages hearing that Cheng has

      meritorious claims and defenses to present in the case, and preventing him

      from raising those arguments would lead to an unjust outcome in the case.


      {¶22} Appellant now appeals, assigning the following error for review:

                                  ASSIGNMENT OF ERROR

      {¶23} “I. THE TRIAL COURT ERRED IN SUA SPONTE DISMISSAL OF SMART

ART AMERICA LLC’S (SAA) CROSSCLAIM, AND FINDING APPELLANT HAD NO

INTEREST IN SAA, WHILE ALSO FINDING APPELLEE IS THE OWNER OF SAA,

BASED ON EVIDENCE PRESENTED AT A DAMAGES HEARING, PURSUANT TO
Delaware County, Case No. 16 CAE 06 0025                                                 6


APPELLEE’S DEFAULT IN ANSWERING APPELLANT’S COUNTERCLAIM AND

SAA’S CROSSCLAIM.”

      {¶24} There are also two motions pending before this Court: Appellees’ Motion

 to Dismiss Appeal and Appellees’ Motion for Sanctions. We shall address the motion

  to dismiss simultaneously with this Opinion. The motion for sanctions is overruled.

                                                 I.

      {¶25} In his sole Assignment of Error, Appellants argues that the trial court erred

in sua sponte dismissing his cross-claim. We disagree.

      {¶26} As a preliminary matter, we must determine whether the decision under

review is a final, appealable order. If an order is not final and appealable, then we have

no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.

Co. of N. America, 44 Ohio St.3d 17, 540 N.E.2d 266 (1989).

      {¶27} Ohio law provides that appellate courts have jurisdiction to review only final

orders or judgments. See, generally, Section 3(B)(2), Article IV, Ohio Constitution; R.C.

2505.02. To be final and appealable, an order must comply with R.C. 2505.02 and Civ.R.

54(B), if applicable. R.C. 2502.02(B) provides the following in pertinent part:

             (B) An order is a final order that may be reviewed, affirmed, modified,

      or reversed, with or without retrial, when it is one of the following:

             (1) An order that affects a substantial right in an action that in effect

      determines the action and prevents a judgment;

             (2) An order that affects a substantial right made in a special

      proceeding or upon a summary application in an action after judgment. ***
Delaware County, Case No. 16 CAE 06 0025                                                  7


      {¶28} To qualify as final and appealable, the trial court's order must satisfy the

requirements of R.C. §2505.02, and if the action involves multiple claims and/or multiple

parties and the order does not enter judgment on all the claims and/or as to all parties,

as is the case here, the order must also satisfy Civil Rule 54(B) by including express

language that “there is no just reason for delay.” Int'l. Brotherhood of Electrical Workers,

Local Union No. 8 v. Vaughn Indus., LLC, 116 Ohio St.3d 335, 2007–Ohio–6439, 879

N.E.2d 101. However, we note that “the mere incantation of the required language does

not turn an otherwise non-final order into a final appealable order.” Noble v. Colwell, 44

Ohio St.3d 92, 540 N.E.2d 1381 (1989).

      {¶29} Upon review, we conclude the trial court's judgment does not determine the

action. The trial court's entry did not determine the action because claims between the

parties remain pending. Finally, the trial court did not include Civil Rule 54(B) language

in its judgment entry. Thus, the judgment was not a final appealable order.

      {¶30} Based on the foregoing, the judgment appealed from is not a final,

appealable order and this Court, therefore, lacks jurisdiction to address the assignments

of error.

      {¶31} Accordingly, the appeal is dismissed.

By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.

JWW/d 1230
