[Cite as Piemonte v. Malatesta, 2013-Ohio-4.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

KELLY PIEMONTE AND                                 JUDGES:
BETH MCCARTY, EXECUTRICES OF                       Hon. Patricia A. Delaney, P.J.
THE ESTATE OF CLAUDE H. HICKS                      Hon. W. Scott Gwin, J.
                                                   Hon. William B. Hoffman, J.
        Plaintiffs-Appellants
                                                   Case No. 12-CA-28
-vs-

BRADLEY AND JANE MALATESTA                         OPINION
AND WELSH HILLS WATER CO., LLC

        Defendants-Appellees



CHARACTER OF PROCEEDING:                        Appeal from Licking County Court of
                                                Common Pleas, Case Nos. 2010CV0196
                                                and 2010CV01844


JUDGMENT:                                       Dismissed


DATE OF JUDGMENT ENTRY:                         January 2, 2013


APPEARANCES:


For Plaintiffs-Appellants                       For Defendants-Appellees


TRACY S. COMISFORD                              JEFFREY B. SAMS
P.O. BOX 44                                     10400 Blacklick Eastern Rd., Suite 140
Granville, Ohio 43023                           Pickerington, Ohio 43147
Licking County, Case No. 12-CA-28                                                     2

Hoffman, J.

        {¶1}   Kelly Piemonte and Beth McCarty, Executrices of the Estate of Claude H.

Hicks, appeal the February 27, 2012 Judgment Entry entered by the Licking County

Court of Common Pleas granting summary judgment in favor of defendants-appellees

Bradley and Jane Malatesta and Welsh Hills Water Co., LLC.

                           STATEMENT OF THE FACTS AND CASE

        {¶2}   The Estate of Claude H. Hicks is the successor in interest to Claude H.

Hicks, who owned real estate located in Granville Township, Ohio. In 1972, Hicks

discovered an artesian well on the property and formed Welsh Hills Water Company,

Inc. for the purpose of bottling and selling water from the artesian well. Hicks pledged

the real estate to Peoples Bank, NA in order to secure a loan enabling Welsh Hills

Water Company, Inc. to purchase equipment and to bottle and market water from the

well.

        {¶3}   Appellees Bradley and Jane Malatesta purchased approximately 30 acres

of neighboring land from Hicks in 2003.

        {¶4}   On October 16, 2006, People's Bank filed a complaint seeking to foreclose

on Claude Hicks’ mortgage to his real estate.

        {¶5}   On June 28, 2007, Hicks and Welsh Hills Water Company, Inc. moved the

court to appoint a receiver. On June 29, 2007, the trial court appointed a receiver over

the real estate and Welsh Hills Water Company, Inc. Martin Management Services was

appointed the receiver (“Martin”).
Licking County, Case No. 12-CA-28                                                       3


       {¶6}     Thereafter, Martin procured an offer from Sunrider Manufacturing, LP. to

purchase the real estate and other assets.          A proposed contract with Sunrider

embodying the offer was entered into on October 23, 2007.

       {¶7}     On November 16, 2007, Hicks and Bradley Malatesta discussed the

receivership and the potential for an immediate sale of the real estate and other assets

to Sunrider. The Malatestas offered to purchase the real estate and suitable assets

required to bottle water for the sum of $1,342,500.00.       The Malatestas prepared a

contract for the sale.

       {¶8}     On December 6, 2007, Hicks filed a formal objection to the proposed sale

to Sunrider. Hicks then represented his neighbors would be presenting a higher and

better offer.

       {¶9}     Prior to a hearing on December 10, 2007, Hicks filed for protection in the

bankruptcy court.

       {¶10} The Malatestas formed Welsh Hills Water Company, LLC on January 9,

2008 for the sole purpose of assigning their interest in the contract for the purchase of

the real estate.

       {¶11} The bankruptcy court approved the sale, but the Malatestas refused to

close on the sale on April 17, 2008.

       {¶12} Martin then renegotiated the purchase contract with Sunrider ultimately

selling the real estate and other assets for an amount less than the Malatesta contract

and the original Sunrider offer.

       {¶13} Claude Hicks passed away in March of 2009.
Licking County, Case No. 12-CA-28                                                     4


         {¶14} On February 8, 2010, Martin Management Services filed a complaint

against the Malatestas as the duly appointed receiver for Welsh Hills Water Company,

Inc. asserting claims for breach of contract, tortuous interference with a contract and

seeking release to receiver of a $25,000 deposit held by a title agency.

         {¶15} On August 26, 2010, Appellants sought to intervene as plaintiffs in the

Martin Management complaint as the real parties in interest. The trial court granted the

Malatestas and Martin Management's motion to strike Appellant's pleadings.

         {¶16} On December 2, 2010, Appellants Kelly Piemonte and Beth McCarty, as

the Executrices of the Estate of Claude H. Hicks filed a complaint against Bradley and

Jane Malatesta and Welsh Hills Water Company, LLC alleging breach of contract and

seeking declaratory judgment.

         {¶17} Via Judgment Entry of April 15, 2011, the trial court consolidated the

cases.

         {¶18} The parties filed cross motions for summary judgment. On February 27,

2012, the trial court granted summary judgment to the Malatestas and Welsh Hills

Water Company, LLC on Appellants’ claims for breach of contract, but denied summary

judgment on Martin Management's claim for tortious interference with a contract, finding

genuine issues of material fact remained.

         {¶19} Appellants now appeal, assigning as error:

         {¶20} “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, GRANTING

SUMMARY JUDGMENT TO THE DEFENDANTS.
Licking County, Case No. 12-CA-28                                                            5


       {¶21} “II. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN GRANTING

SUMMARY JUDGMENT TO THE INDIVIDUAL DEFENDANTS ON THE ISSUE OF

THEIR PERSONAL LIABILITY.”

       {¶22} Initially, we must address whether the trial court's February 27, 2012

Judgment Entry is a final appealable order. We conclude it is not.

       {¶23} 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. Am., 44

Ohio St.3d 17, 20, 540 N.E.2d 266, (1989). In the event the parties to the appeal do not

raise this jurisdictional issue, we may raise it sua sponte. See Chef Italiano Corp. v.

Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64, (1989); Whitaker–Merrell v. Carl M.

Geupel Const. Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922, (1972).

       {¶24} An appellate court has jurisdiction to review and affirm, modify, or reverse

judgments or final orders of the trial courts within its district. See Section 3(B)(2), Article

IV, Ohio Constitution; see also R.C. § 2505.02 and Fertec, LLC v. BBC & M

Engineering, Inc., 10th Dist. No. 08AP–998, 2009–Ohio–5246. 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., supra at 20.

       {¶25} To be final and appealable, an order must comply with R.C. 2505.02 and

Civ.R. 54(B), if applicable.

       {¶26} R.C. § 2505.02(B) provides, in pertinent part:

       {¶27} “(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:
Licking County, Case No. 12-CA-28                                                         6


       {¶28} “(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

       {¶29} “(2) An order that affects a substantial right made in a special proceeding

or upon a summary application in an action after judgment.”

       {¶30} Civ.R. 54(B) provides:

       {¶31} “When more than one claim for relief is presented in an action whether as

a claim, counterclaim, cross-claim, or third-party claim, 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 delay, 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 action 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 and liabilities

of all the parties.”

       {¶32} Therefore, 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 a judgment on all the claims and/or

as to all parties; as is the case here, the order must also satisfy Civ. R. 54(B) by

including express language that “there is no just reason for delay.” Internatl. Bhd. of

Electrical Workers, Local Union No. 8 v. Vaughn Indus., L.L.C., 116 Ohio St.3d 335,

2007–Ohio–6439, 879 N.E.2d 187, ¶ 7, citing State ex rel. Scruggs v. Sadler, 97 Ohio
Licking County, Case No. 12-CA-28                                                      7


St.3d 78, 2002–Ohio–5315, 776 N.E.2d 101, ¶ 5–7. We note, “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, 96, 540 N.E.2d 1381, (1989). To be final and

appealable, the judgment entry must also comply with R.C. 2505.02. Id.

         {¶33} As stated above, on April 15, 2011, the trial court consolidated the cases

filed against the Malatestas and Welsh Hills Water Company, LLC by Martin

Management and the Estate of Claude Hicks. Via Judgment Entry of February 27,

2012, the trial court granted summary judgment in favor of the defendants (the

Malatestas and Welsh Hills Water Company, LLC) as to the Appellants’ claim for

declaratory judgment. However, the trial found genuine issues of material fact remained

as to Martin Management's claim against the defendants (the Malastestas and Welsh

Hills Water Company, LLC) for tortuous interference of contract, and denied Martin

Mangement’s motion for summary judgment on that claim. Accordingly, fewer than all

of the claims of the parties have been determined. We find the February 27, 2012

Judgment Entry of the Licking County Court of Common Pleas is not a final appealable

order.

         {¶34} This appeal is dismissed for lack of jurisdiction.

By: Hoffman, J.

Delaney, P.J. and

Gwin, J. concur                                s/ William B. Hoffman _________________
                                               HON. WILLIAM B. HOFFMAN

                                               s/ Patricia A. Delaney _________________
                                               HON. PATRICIA A. DELANEY

                                               s/ W. Scott Gwin _____________________
                                               HON. W. SCOTT GWIN
Licking County, Case No. 12-CA-28                                                   8


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


KELLY PIEMONTE AND                          :
BETH MCCARTY, EXECUTRICES OF                :
THE ESTATE OF CLAUDE H. HICKS               :
                                            :
       Plaintiffs-Appellants                :
                                            :
-vs-                                        :        JUDGMENT ENTRY
                                            :
BRADLEY AND JANE MALATESTA                  :
AND WELSH HILLS WATER CO., LLC              :
                                            :
       Defendants-Appellees                 :        Case No. 12-CA-28


       For the reason stated in our accompanying Opinion, this appeal is dismissed for

lack of jurisdiction. Costs to Appellant.




                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN
