[Cite as Clark v. Butler, 2011-Ohio-4943.]

                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        ROSS COUNTY


WAYNE W. CLARK, et al.,
                                                       :
        Plaintiffs-Appellees,                              Case No. 10CA3191

        vs.                                            :

KATHLEEN L. BUTLER, et al.,                            :   DECISION AND JUDGMENT ENTRY


        Defendants-Appellants.                         :


_________________________________________________________________

                                              APPEARANCES:

COUNSEL FOR APPELLANTS:                      James K. Cutright, Cutright & Cutright, L.L.C., 76 West
                                             Second Street, Chillicothe, Ohio 45601

COUNSEL FOR APPELLEES:        Thomas M. Spetnagel, Spetnagel & McMahon, 42 East
                              Fifth Street, Chillicothe, Ohio 45601
_________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 9-27-11

ABELE, J.

        {¶ 1} This is an appeal from a Ross County Common Pleas Court judgment in favor of

Wayne W. Clark and Cheryl K. Clark, plaintiffs below and appellants herein, on their claim

against Kathleen L. Butler and Butler Events, L.L.C., defendants below and appellants herein.

Appellants assign the following errors for review:

                 FIRST ASSIGNMENT OF ERROR:

                 “IN THE MAY 7, 2010, DECISION AND JUDGMENT ENTRY,
ROSS, 10CA3191                                                                                      2

                 THE TRIAL COURT’S FINDING THAT APPELLANTS DID
                 NOT HAVE AN EASEMENT FOR THE USE OF THE
                 COMMON SEWAGE SYSTEM WAS AGAINST THE
                 MANIFEST WEIGHT OF THE EVIDENCE.”

                 SECOND ASSIGNMENT OF ERROR:

                 “IN THE MAY 7, 2010, DECISION AND JUDGMENT ENTRY,
                 THE TRIAL COURT’S FINDING THAT APPELLANTS DID
                 NOT HAVE AN EASEMENT FOR THE USE OF THE
                 COMMON SEWAGE SYSTEM WAS CONTRARY TO LAW.”

       {¶ 2} The parties are contiguous land owners. Appellees commenced the action with a

complaint that alleged that appellants interfered with an easement for use of a septic system

located on appellants’ property. The easement was granted to appellees by a common

predecessor-in-title to both properties. Appellants denied liability and asserted a number of

counterclaims. Appellees denied liability on the counterclaims.

       {¶ 3} After the parties submitted the case to the trial court on stipulations of fact, the

court issued a decision and judgment in favor of appellees and granted them a declaratory

judgment to use the “leach field” (septic system) on appellants’ property. The court also found

“no just reason for delay” and scheduled the matter for a hearing on damages. After appellees

dismissed their “claims” for damages, the court issued an entry denoted as a “Final Appealable

Order.” The court repeated that it granted declaratory judgment to appellees and enjoined

appellants from interfering with appellees’ use of the “leach field.” The court further noted that

this “order is a final appealable order pursuant to Ohio Civil Rule 54.” This appeal followed.

       {¶ 4} Before we address the assignments of error, we must resolve a threshold

jurisdictional issue. Ohio courts of appeal have appellate jurisdiction over “final appealable

orders.” Section 3(B)(2), Article IV of the Ohio Constitution. If a judgment appealed does not
ROSS, 10CA3191                                                                                                      3

constitute a final order, an appellate court has no jurisdiction to consider it and the appeal must

be dismissed. See Davison v. Reni (1996), 115 Ohio App.3d 688, 692, 686 N.E.2d 278; Prod.

Credit Assn. v. Hedges (1993), 87 Ohio App.3d 207, 621 N.E.2d 1360; Kouns v. Pemberton

(1992), 84 Ohio App.3d 499, 501, 617 N.E.2d 701. Furthermore, even if the parties do not raise

the jurisdictional issues on appeal, appellate courts are required to raise them sua sponte once

they become apparent. See In re Murray (1990), 52 Ohio St.3d 155, 159-160, 556 N.E.2d 1169,

at fn. 2; Whitaker-Merrell v. Geupel Co. (1972), 29 Ohio St.2d 184, 186, 280 N.E.2d 922. A

final order is one that, inter alia, affects a substantial right and, in effect, determines the

judgment.1

         {¶ 5} The problem in the case sub judice is that at least one issue appears to remain

pending. Before we get to this issue, we note that although the trial court did not formally enter

judgment against appellants to resolve their counterclaims, the declaratory judgment(s) in favor

of appellees rendered those claims moot. See e.g. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am.

(1989), 44 Ohio St.3d 17, 21, 540 N.E.2d 266; Wise v. Gursky (1981), 66 Ohio St.2d 241, 20

O.O.3d 233, 421 N.E.2d 150, at the syllabus. Appellees also dismissed their various “claims”



         1
            Appellees advanced a number of claims in this case that, admittedly, makes it difficult to categorize for
purposes of R.C. 2505.02. Quiet title is not a special proceeding. See Burkitt v. Shepherd, Pike App. No. 03A714,
2004-Ohio-1754, at ¶8, fn. 4. Because that particular claim is advanced before the one in declaratory judgment, we
rely on it as the essence of the proceedings. However, a declaratory judgment is a “special proceeding” for
purposes of R.C. 2505.02. West v. Stump, Meigs App. No. 07CA5, 2007-Ohio-6495, at ¶9. An equally strong
case can be made that this was the essence of the proceedings. However, even if we treated this case as a special
proceeding, a judgment in such case is final when it affects a substantial right. R.C. 25050.02(B)(2). A judgment
affects a substantial right when, if not immediately appealable, it would foreclose appropriate relief in the future.
See Copenhaver v. Copenhaver, Athens App. No. 05CA16, 2005-Ohio-4322, at ¶6. As discussed infra in this
opinion, the trial court’s reference to Civ.R. 54(B) indicates that it contemplates further action on this case in the
future. Appellants could still obtain appropriate relief here in a future appeal once every issue in the case is
decided. That said, we note that the order appealed herein would not satisfy R.C. 2505.02 whether we treated it as
an action that existed in equity prior to 1853 or as a special proceeding.
ROSS, 10CA3191                                                                                                 4

for damages.2 Thus, these two issues do not give us pause. Rather, our concern is directed

toward the portion of appellees’ negligence claim that alleged that appellants caused damage to

the septic system. Appellees asked the trial court for an order to direct appellants to

“immediately repair and/or replace [the] septic system.” We cannot find any indication that the

trial court resolved this claim and the requested remedy.

        {¶ 6} When multiple “claims” are involved, as is the case here, a judgment must also

satisfy the requirements of Civ.R. 54(B). State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 776

N.E.2d 101, 2002-Ohio-5315, at ¶5; Noble v. Colwell (1989), 44 Ohio St.3d 92, 540 N.E.2d

1381, at the syllabus. A judgment satisfies Civ.R. 54(B) only “upon an express determination

that there is no just reason for delay . . .” (Emphasis added.) We hasten to note that this rule

calls for an “express determination” and the “no just reason for delay” language has been

characterized by this Court and others as “magic words” necessary for an interlocutory order to

be reviewed. Childs v Purtee (Dec. 6, 1994), Adams App. No. 94CA579; Harter Bank & Trust

Co. v. Abbe (July 29, 1985), Stark App. No. CA-6606. In the absence of such "magic words,"

the judgment is interlocutory and the appeal must be dismissed.

        {¶ 7} The September 30, 2010 judgment in the case sub judice does not contain the

express “no just reason for delay” determination. Rather, it states “[t]his order is a final

appealable order pursuant to Ohio Civil Rule 54.” We reluctantly conclude that this is

inadequate to comply with Civ.R. 54(B).

        {¶ 8} We acknowledge that, although the September 30, 2010 judgment does not


        2
        Damages are a remedy for a claim, not a claim in and of themselves. See White v. Emmons, Scioto App.
No. 10CA3340, 2011-Ohio-1745, at ¶9.
ROSS, 10CA3191                                                                                          5

contain an express finding of “no just reason for delay,” the May 7, 2010 decision and judgment

did contain that language. As a general proposition of law, interlocutory orders merge into the

final appealable order. See e.g. Mtge. Electronic Registrations Sys. v. Mullins, 161 Ohio

App.3d 12, 829 N.E.2d 326, 2005-Ohio-2303, at ¶21; Wolfram v. Deerfield Village

Condominium Owners Assn., Inc., Butler App. No. CA2006-04-084, 2006-Ohio-4961, at ¶11.

Consequently, does the inclusion of the Civ.R. 54(B) language in the May 7th decision and

judgment make final and appealable the September 30th entry? We think not for the following

reasons.

       {¶ 9} First, Civ.R. 54(B) speaks to a trial court entering a final judgment “as to one or

more but fewer than all claims.” The May 7, 2010 decision and judgment was not intended to

be a final judgment as to any claim as the issue of damages was deferred for later adjudication.

The express finding of “no just reason for delay” was thus inappropriate. Nobody would

seriously contend, for example, that a trial court could file a blanket entry at the outset of a case

finding “no just reason for delay” and intend for it to make any subsequent order final and

appealable. For the same reason, we do not find that language in the May 7th decision and

judgment rendered the September 30th entry final and appealable.

       {¶ 10} Second, and more important, we are not persuaded that an express finding “no just

reason for delay” in the September 30th entry would have actually made a difference. Although

the negligence claim was asserted in count four of appellees’ complaint, we believe that the

action below posited only one actual “claim for relief” for purposes of Civ.R. 54(B). We

addressed this issue in Evans v. Rock Hill Local School Dist. Bd. of Edn., Lawrence App. No.

04CA39, 2005-Ohio-5318, at ¶19, and stated:
ROSS, 10CA3191                                                                                     6

       “The Ohio Supreme Court gave a more precise definition in 1981 stating that a
       claim for relief, for purposes of [Civ.R. 54(B) ], was synonymous with a ‘cause of
       action.’ A ‘cause of action’ is that set of facts which establish or give rise to a
       ‘right of action,’ the existence of which affords a party the right to judicial relief.
       ‘Cause of action’ is to be distinguished from the ‘action’ itself, which is a judicial
       proceeding brought in a court of law to vindicate the cause of action. These
       distinctions are critically important because an action (whether in the form of a
       complaint, cross-complaint or counter-complaint) may contain numerous ‘counts,’
       ‘theories,’ or ‘demands' for relief but still encompass only a single ‘cause of
       action’ or ‘claim for relief.’ For instance, where a person suffers personal injury
       and property damage as the result of a wrongful act, there is only a single ‘cause
       of action’ even though the complaint asserts counts in battery and trespass.
       Summary judgment rendered on one of those counts, while the other count
       remains pending, would not be final and appealable even with a finding of ‘no just
       reason for delay.” (citations omitted)

       {¶ 11} Appellees’ claim for relief, for purposes of Civ.R. 54(B), is that appellants had

interfered, and continue to interfere, with their use of an easement to a septic system on

appellants’ land. Their request for an order that appellants repair the damage they caused arose

from the same fact pattern as the other counts in their complaint. Consequently, even if an

express finding of “no just reason for delay” pursuant to Civ.R. 54(B) was included in the

September 30, 2010 judgment, that language would not have rendered the entry final and

appealable.

       {¶ 12} Accordingly, for all these reasons, we conclude we have no jurisdiction to review

this case and we hereby dismiss this appeal.

                                                              APPEAL DISMISSED.

                                      JUDGMENT ENTRY

       It is ordered that the appeal be dismissed and that appellees recover of appellants costs

herein taxed.

       The Court finds there were reasonable grounds for this appeal.
ROSS, 10CA3191                                                                                   7

       It is ordered that a special mandate issue out of this Court directing the Ross County

Common Pleas Court to carry this judgment into execution.

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

Rules of Appellate Procedure.

       Kline, J.: Concurs in Judgment & Opinion
       McFarland, J.: Concurs in Judgment Only
                                                             For the Court




                                                            BY:
                                           Peter B. Abele, Judge




                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
