[Cite as Huntington Natl. Bank v. Stanley Miller Constr. Co., 2013-Ohio-5878.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


HUNTINGTON NATIONAL BANK                              :    JUDGES:
                                                      :
                                                      :    Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                             :    Hon. William B. Hoffman, J.
                                                      :    Hon. Patricia A. Delaney, J.
-vs-                                                  :
                                                      :    Case No. 2013CA00087
                                                      :
STANLEY MILLER CONSTRUCTION                           :
CO., ET AL.                                           :
                                                      :
                                                      :
       Defendants-Appellants                          :    OPINION


CHARACTER OF PROCEEDING:                                   Appeal from the Stark County Court of
                                                           Common Pleas, Case No.
                                                           2012CV03296



JUDGMENT:                                                  DISMISSED




DATE OF JUDGMENT ENTRY:                                    December 30, 2013




APPEARANCES:

For Plaintiff-Appellee:                                    For Defendants-Appellants:

JOEL K. DAYTON                                             JOHN J. RAMBACHER
ROBERT B. PRESTON, III                                     STEPHEN P. GRIFFIN
220 Market Ave., S., Suite 1000                            MICHAEL J. KAHLENBERG
Canton, OH 44702                                           825 South Main St.
                                                           North Canton, OH 44720
Stark County, Case No. 2013CA00087                                                    2

Delaney, J.

      {¶1} Defendants-Appellants Stanley Miller Construction Co., David S. Miller,

and Steven J. Miller appeal the April 26, 2013 judgment entry of the Stark County Court

of Common Pleas.

                       FACTS AND PROCEDURAL HISTORY

      {¶2} On June 23, 2011, Plaintiff-Appellee Huntington National Bank (“Lender”)

renewed a commercial line of credit with Defendant-Appellant Stanley Miller

Construction Co. (“Borrowers”) in the principal amount of $2,000,000.00 evidenced by a

Promissory Note.     The Note was secured by the Commercial Guarantees of

Defendants-Appellants David S. Miller and Steven J. Miller (“Borrowers”).           The

Borrowers defaulted under the terms of the loan and Note.

      {¶3} On October 22, 2012, Lender filed a complaint for cognovit judgment

action against Borrowers in the Stark County Court of Common Pleas. Count I, II, and

III of the complaint alleged the Note and Commercial Guarantees contained provisions

whereby Borrowers were responsible for Lender’s attorney fees and legal expenses,

whether or not there was a lawsuit, including attorney fees and legal expenses for

bankruptcy proceedings, appeals, and post-judgment collection services.             The

complaint also alleged that pursuant to R.C. 1319.02, Lender was entitled to recover its

reasonable attorney fees in connection with the enforcement and collection on the Note

and Guarantees.

      {¶4} Borrowers filed an answer to the complaint, admitting all allegations of the

complaint.
Stark County, Case No. 2013CA00087                                                   3


        {¶5} On October 23, 2012, the trial court issued a judgment entry. It granted

judgment in favor of Lender on Counts I, II, and III of the complaint in the amount of

$855,076.22. The proposed judgment entry submitted by Lender included an award of

attorney fees and expenses in the amount of $4,480.00.       The trial court, however,

crossed out the statement regarding the award of attorney fees.

        {¶6} On December 10, 2012, Lender filed a Motion for Hearing on Attorney

Fees.    Lender filed with the trial court a “Satisfaction of Judgment (Partial)” on

December 12, 2012. The trial court granted the motion for hearing on attorney fees on

December 14, 2012.

        {¶7} Borrowers responded to the motion for hearing on attorney fees and filed

a Motion to Dismiss Proceedings.       The trial court denied the motion to dismiss

proceedings.

        {¶8} Borrowers filed a Motion for Leave to File an Amended Answer. Lender

filed a brief regarding its entitlement to attorney fees.   Borrowers filed a brief in

opposition.

        {¶9} On April 26, 2013, the trial court issued its judgment on the pending

motions. The trial court denied Borrowers’ motion for leave to file an amended answer.

It next found Lender had the right, under the Note and Guarantees, to seek recovery for

attorney fees. It found the October 23, 2012 judgment entry did not bar Lender’s claim

for attorney fees. The trial court set a hearing to determine attorney fees on May 17,

2013.

        {¶10} Borrowers filed their Notice of Appeal on May 6, 2013. The hearing on

attorney fees did not go forward.
Stark County, Case No. 2013CA00087                                                       4


                               ASSIGNMENTS OF ERROR

       {¶11} Borrowers raise two Assignments of Error:

       {¶12} “I. THE TRIAL COURT IS WITHOUT JURISDICTION TO CONDUCT ANY

FURTHER PROCEEDINGS FOLLOWING THE FINAL ENTRY.

       {¶13} “II. THE TRIAL COURT ERRED IN FINDING APPELLEE IS ENTITLED

TO ATTORNEYS’ FEES WHERE THE CONTRACT PROVIDING FOR RECOVERY OF

ATTORNEY’S FEES DOES NOT COMPLY WITH OHIO REV. CODE §1319.02.”

                                        ANALYSIS

       {¶14} Before we address the merits of Borrowers’ appeal, we must first

determine whether this Court has jurisdiction to consider the matter. Although not an

issue raised by either party, this court must address, sua sponte, whether there is a final

appealable order ripe for review. State ex rel. White vs. Cuyahoga Metro. Hous. Aut.,

79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72.

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

R.C. 2505.02(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.

       {¶16} 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
Stark County, Case No. 2013CA00087                                                      5


and/or multiple parties and the order does not enter a judgment on all the claims and/or

as to all parties, the order must satisfy Civ.R. 54(B) by including express language that

“there is no just reason for delay.” Intl. Bd. 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 St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶

5–7.

       {¶17} Civ.R. 54(B) requires a court to make an express determination there is no

just reason for delay in order to make appealable an order adjudicating fewer than all

the claims or the rights of fewer than all the parties. Civ.R. 54(B) must be followed

when a case involves multiple claims or multiple parties. State ex rel. A & D Ltd.

Partnership v. Keefe, 77 Ohio St.3d 50, 56, 671 N.E.2d 13 (1996).

       {¶18} The Supreme Court of Ohio has held that “[w]hen 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.” (Emphasis added.)

Intl. Bd. of Electrical Workers, Loc. Union No. 8 v. Vaughn Industries, L.L. C., 116 Ohio

St.3d 335, 2007–Ohio–6439, 879 N.E.2d 187, paragraph 2 of the syllabus.

       {¶19} In this case, the April 26, 2013 judgment entry appealed by Borrowers

found Lender was entitled to attorney fees. The trial court deferred the determination of

the fees until a hearing on May 17, 2013. The judgment entry did not contain Civ.R.

54(B) language. Borrowers filed their Notice of Appeal on May 6, 2013. The hearing on

attorney fees did not proceed.
Stark County, Case No. 2013CA00087                                                        6


      {¶20} The trial court specifically raised the issue of attorney fees in the judgment

entry and deferred the determination of fees. We therefore find that based on the

reasoning of the Ohio Supreme Court in Vaughn, supra, the judgment appealed from is

not a final appealable order. Accord, Bank of New York Mellon Trust Co. v. Zeigler, 5th

Dist. Richland No. 11-CA-25, 2011-Ohio-4748, ¶ 32; McMasters v. Kilbarger Constr.,

Inc., 5th Dist. Muskingum No. 2012-CA-11, 2012-Ohio-4353.

                                     CONCLUSION

      {¶21} The April 26, 2013 Judgment Entry did not include Civ.R. 54(B) language;

therefore, there is no final appealable order as the issue of attorney fees remains

unresolved. Accordingly, this Court does not have jurisdiction to entertain the appeal.

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

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concurs separately.
Stark County, Case No. 2013CA00087                                                     7

Hoffman, J., concurring

       {¶23} I concur in the majority’s determination the order being appealed is not a

final appealable order.

       {¶24} I write separately only to note, lest my concurrence be misinterpreted, I do

not believe the mere incantation of Civ.R. 54(B) language would render the appealed

judgment final.1

       {¶25} I believe the trial court must determine the amount of attorney fees

awarded before the issue become a final appealable order.




1
  The Vaughn case cited by the majority involved the failure to address the issue of
attorney fees in a summary judgment order. In the case sub judice the issue of attorney
fees was addressed but the amount left undetermined.
