[Cite as Sandesara v. Peco II, Inc., 2011-Ohio-5927.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 96532


                               HARSHAD SANDESARA
                                                   PLAINTIFF-APPELLANT

                                                        vs.

                                  PECO II, INC., ET AL.
                                                   DEFENDANTS-APPELLEES



                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-720332


        BEFORE:          Sweeney, J., Blackmon, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: November 17, 2011
ATTORNEYS FOR APPELLANT

Bruce B. Elfvin, Esq.
Barbara Kaye Besser, Esq.
Stuart Torch, Esq.
Elfvin & Besser
4070 Mayfield Road
Cleveland, Ohio 44121-3031

Eric M. Andersen, Esq.
Eduard Korsinsky, Esq.
Levi & Korsinsky, L.L.P.
30 Broad Street, 15th Floor
New York, NY 10004

ATTORNEYS FOR APPELLEES

James A. King, Esq.
Megan E. Bailey, Esq.
Eric B. Gallon, Esq.
Ryan P. Sherman, Esq.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215

Leo M. Spellacy, Jr., Esq.
Porter, Wright, Morris & Arthur
925 Euclid Avenue, Suite 1700
Cleveland, Ohio 44115

J. Christian Word, Esq.
Latham & Watkins, L.L.P.
555 Eleventh Street, N.W., Suite 1000
Washington, DC 20004

                                        (Continued)


(Continued)

David D. Yeagley, Esq.
Ulmer & Berne, L.L.P.
Skylight Office Tower
1660 West Second Street, Suite 1100
Cleveland, Ohio 44113-1448




JAMES J. SWEENEY, J.:

       {¶ 1} Plaintiff-appellant Harshad Sandesara (“appellant”) appeals from the trial

court’s order that found it lacked subject matter jurisdiction to hear his application for

attorneys’ fees. For the reasons that follow, we affirm.

       {¶ 2} Appellant commenced this action against Peco II, Inc., Lineage Power

Holdings, Inc., Lineage Power Ohio Merger Sub, Inc., John Heindel, James Green,

Matthew P. Smith, E. Richard Hottenroth, Thomas R. Thomsen, R. Louis Schneeberger,

Gerard Moersdorf, and Richard W. Orchard (collectively referred to as the “Peco

appellees”). Appellant’s claims related to a merger agreement between Peco II, Inc. and

Lineage Power Holdings, Inc. In the amended complaint, appellant alleged claims for

breach of fiduciary duty on behalf of the shareholders and a separate derivative claim on

behalf of Peco as well as an aiding and abetting claim against Peco, Lineage, and Lineage

Merger Sub.     Appellant’s demand for relief included a request that the trial court enter

judgment that, among other things, awarded “Plaintiff the costs of this action, including a

reasonable allowance for the fees and expenses of Plaintiff’s attorneys and experts * * *.”

On appeal, appellant contends that his claim for fees was a separate cause pursuant to
“the substantial benefit doctrine.”

       {¶ 3} The trial court issued a series of orders concerning appellant’s claims and

by order dated May 7, 2010, unequivocally stated, “the Court dismisses the Amended

Complaint with prejudice.” Appellant did not appeal from this order. Seven months

later, appellant filed an application for an award of attorneys’ fees and expenses. Peco

appellees opposed the application and the trial court found it lacked subject matter

jurisdiction to consider it. This appeal followed and presents the following assignment of

error for our review:

       {¶ 4} “The Cuyahoga County Court of Common Pleas erred in entering the

February 16, 2011 order as a matter of law when it found that it did not have subject

matter jurisdiction to hear an application for Plaintiff’s attorneys’ fees.”

       {¶ 5} The issue before us is not whether appellant was entitled to an award of

attorneys’ fees but rather whether the trial court had subject matter jurisdiction to consider

the application that was filed seven months after the court had dismissed the amended

complaint with prejudice and assessed court costs to appellant; and that order was not

appealed. The trial court concluded that it lacked jurisdiction and we must agree.

       {¶ 6} Appellant argues that the trial court had subject matter jurisdiction because

it did not explicitly address the claim for attorneys’ fees when it dismissed the amended

complaint with prejudice. Appellant argues that the May 7, 2010 order was not final and

appealable for that reason.      The Peco appellees maintain that it was a final and

appealable order. They rely on authority that provides “when a trial court unconditionally
dismisses a case * * * the trial court patently and unambiguously lacks jurisdiction to

proceed[.]” State ex. rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771

N.E.2d 853, ¶22.

       {¶ 7} Appellant refers us to the authority of Intl. Bhd. of Elec. Workers Local

Union No. 8 v. Vaughn Indus., L.L.C., 116 Ohio St.3d 335, 340, 2007-Ohio-6439, 879

N.E.2d 187. In Vaughn, the Union filed a complaint alleging an intentional violation of

Ohio’s Prevailing Wage Law. In its answer, the employer asserted a claim for attorneys’

fees pursuant to statutory law as well as Civil Rule 11. The trial court granted the

employer’s motion for summary judgment on the Union’s claims against it, however, the

summary judgment order did not address the employer’s outstanding claim for attorneys’

fees. Id. at ¶4. Thereafter, the employer moved the court to award it attorneys’ fees

pursuant to R.C. 4115.16(D) and/or Civ.R. 11 and R.C. 2323.51. Id. at ¶5.

       {¶ 8} The Ohio Supreme Court determined that the summary judgment order did

not dispose of all claims, specifically, it did not address the employer’s pending claim for

attorneys’ fees.   Because the claim for attorneys’ fees remained pending and the

summary judgment order did not contain the express Civ.R. 54(B) language, the order

was not final and appealable. Id. at ¶17. Under that factual and procedural scenario, the

Ohio Supreme Court held that “when attorney fees are requested in the original pleadings,

a party may wait until after entry of a judgment on the other claims in the case to file its

motion for attorney fees. We also hold that when attorney fees are requested in the

original pleadings, an order that does not dispose of the attorney-fee claim and does not
include, pursuant to Civ.R. 54(B), an express determination that there is no just reason for

delay, is not a final, appealable order.” Id., emphasis added.

       {¶ 9} Unlike the order examined in Vaughn, the order at issue in this case did

dispose of all claims in appellant’s amended complaint because it dismissed the entire

amended complaint with prejudice. That order necessarily encompassed the request/claim

for attorneys’ fees contained in the amended complaint. Clearly that was the trial court’s

intention, otherwise, it would not have found it lacked jurisdiction to consider the later

filed application for attorneys’ fees. Because the trial court dismissed the entire amended

complaint, rather than just entered an order on plaintiff’s claims, the precedent of Vaughn

is not applicable.1 We note that as a general practice most pleadings contain a request that

the court award attorneys’ fees and cost in the demand for judgment. Vaughn does not

require the trial court to independently address every generalized request for relief

contained in a pleading in order to constitute a final and appealable order.          Even

assuming, without deciding, that the claim for attorneys’ fees was a separate cause of

action, as appellant has maintained, it was nonetheless dismissed as part and parcel of the

“amended complaint.”

       {¶ 10} When the trial court dismisses the entire pleading without reservation it is

unreasonable and counterintuitive to conclude that it has reserved jurisdiction over any


1
  This order at issue in this case is also distinguishable from the judgment rendered
in favor of the plaintiff following a trial in Fair Housing Advocates Assn., Inc. v.
James (1996), 114 Ohio App.3d 104, 682 N.E.2d 1045, abrogated by Intl. Bhd. of
Elec. Workers, Local Union No. 8 v. Vaughn Industries, L.L.C., 116 Ohio St.3d 335,
335, 2007-Ohio-6439, 879 N.E.2d 187.
part of it. None of the authority cited by appellant would support a contrary conclusion

and none of the cases involve an order dismissing the entire pleading, which contained

the claim for attorneys’ fees, with prejudice. See, Firstmerit Bank, N.A. v. Moore, 183

Ohio App.3d 550, 2009-Ohio-3928, 917 N.E.2d 864, ¶14; In re Removal of Sites,

Lawrence App. No. 05CA39, 2006-Ohio-3787; Warne v. Bamfield, 161 Ohio App.3d

537, 2005-Ohio-2982, 831 N.E.2d 451; Lytle v. K&D Group, Inc., Cuyahoga App. No.

84889, 2005-Ohio-87; Cook v. Esarey (Nov. 1, 1995), Summit App. No. 17112; Dayton

Women’s Health Ctr. v. Enix (1993), 86 Ohio App.3d 777, 621 N.E.2d 1262; Fort Frye

Teachers Ass’n v. Fort Frye Local Sch. Dist. Bd. of Educ. (1993), 87 Ohio App.3d 840,

623 N.E.2d 232; Hlavin v. W.E. Plechaty Co.(1971), 28 Ohio App.2d 43, 274 N.E.2d 570.

       {¶ 11} The authority pertaining to whether an attorneys’ fee claims survives when

an action is deemed moot is not really applicable to this case either. While the trial court’s

order noted that “[t]he shareholders’ approval extinguishe[d] Plaintiff’s claim under Ohio

Law * * *,” the trial court’s order went on to dismiss “the Amended Complaint with

prejudice” and this is a distinguishing factor.

       {¶ 12} If a party believes that the trial court erred by dismissing a claim, that can

be addressed through a direct appeal. Appellant did not appeal the trial court’s May 7,

2010 order that was final. Consequently, we do not have the opportunity to decide in this

appeal whether the trial court erred by dismissing the claim for attorneys’ fees in the May

7, 2010 order because the issue at this point is whether the trial court lacked jurisdiction
to consider it after the amended complaint was dismissed with prejudiced. Because we

find that it did, this assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover from appellant 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.

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

the Rules of Appellate Procedure.




JAMES J. SWEENEY, JUDGE

PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
