[Cite as Kilroy v. Peters, 2011-Ohio-3415.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

MICHAEL P. KILROY, et al.                                 :

        Plaintiffs-Appellants                   :             C.A. CASE NO. 24268

                                                          :        T.C. NO.       07CV5170

WILLIAM PETERS, et al.                                    :            (Civil appeal from
                                                                        Common Pleas Court)
        Defendants-Appellees                              :

                                                          :

                                              ..........

                                              OPINION

                          Rendered on the           8th       day of       July    , 2011.

                                              ..........

CHRISTOPHER R. CONARD, Atty. Reg. No. 0039751 and DAVID P. PIERCE,
Atty. Reg. No. 0061972 and SASHA ALEXA M. VANDEGRIFT, Atty. Reg. No.
0080800, 33 W. First Street, Suite 600, Dayton, Ohio 45402
       Attorneys for Plaintiffs-Appellants, Michael P. Kilroy and Vickie Kilroy

DOUGLAS M. TROUT, Atty. Reg. No. 0072027, Assistant Prosecuting Attorney,
                      th
301 W. Third Street, 5 Floor, Dayton, Ohio 45422
     Attorney for Defendants-Appellees, Jackson Township Trustees

                                              ..........

PER CURIAM:

        {¶ 1} Plaintiff-appellants Michael and Vickie Kilroy (hereinafter “the Kilroys”)

appeal a decision of the Montgomery County Court of Common Pleas, General

Division, overruling their motion to enforce the settlement agreement and declaring
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a settlement reached between the Kilroys and defendant-appellee Jackson

Township Board of Trustees (hereinafter “the Trustees”). The Kilroys filed their

motion to enforce the settlement agreement on March 12, 2010. The trial court

filed its decision overruling said motion on August 23, 2010. The Kilroys filed a

notice of appeal with this Court on September 22, 2010.

                                                I

        {¶ 2} The instant appeal began as a dispute regarding the removal of

“offensive plants and noxious weeds” from the fence line running between property

owned by the Kilroys and an adjoining piece of property owned by Timothy and

Nicole Johnson.     The properties in question are located in Jackson Township,

Ohio.

        {¶ 3} Pursuant to R.C. 971.33, the Kilroys requested that the Trustees clear

the fence line or, in the alternative, direct the Johnsons to do so.              After the

Trustees failed to take any action, the Kilroys filed a complaint against the Trustees

collectively, and in the board members’ individual capacities on June 21, 2007.

The Kilroys advanced the five following claims for relief in their complaint: 1)breach

of contract; 2) declaratory judgment; 3) failure to perform a special duty; 4)
                                                                              1
tortious/intentional interference with a contract; and 5) civil conspiracy.

        {¶ 4} The case was referred to mediation in December of 2009.                   On

January 6, 2010, the parties participated in court ordered mediation, but a


          1
         Although they were initially named as defendants in the Kilroys’
  complaint, the Johnsons were dismissed from the case with prejudice on
  December 31, 2008, after both parties agreed to the Kilroys’ purchase of the
  Johnsons’ adjoining property.
                                                                                    3

settlement was not reached.      After the unsuccessful attempt at mediation, the

parties engaged in a series of communications aimed at ending the dispute.

Specifically, the parties discussed the execution of an apology letter, as well as a

monetary settlement from the Trustees, in order to end the litigation.

      {¶ 5} Between January 11 & 14, 2010, the parties reached a tentative

verbal agreement in which the Trustees agreed to sign an apology letter drafted by

the Kilroys and their legal counsel.    On January 15, 2010, the Kilroys’ counsel

contacted the trial court to report that the case had been settled. Between January

15 & 20, 2010, the parties exchanged communications regarding the final draft of

the settlement agreement.

      {¶ 6} On January 20, 2010, the Kilroys sent the Trustees a draft of the final

written settlement agreement and dismissal entry memorializing the terms of the

settlement.   Shortly after receiving the draft, the Trustees sent a message

indicating that they refused to sign the apology letter.     The Trustees proposed

several alternative apology letters containing different language.       The Kilroys

rejected all subsequent attempts to revise the language in the final draft of the

apology letter, and the parties were left at an impasse.

      {¶ 7} Thus, the Kilroys filed a motion to enforce the settlement agreement

on March 12, 2010.         The Trustees opposed the motion to enforce in a

memorandum filed on May 10, 2010. On August 23, 2010, the trial court overruled

the Kilroys’ motion to enforce the settlement, but also held that a settlement had, in

fact, been reached with respect to the financial portion of the agreement and

ordered the Trustees to pay the Kilroys approximately $15,000.00. The trial court
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also found that the Trustees had already apologized to the Kilroys several times

such that it was unnecessary for the Trustees to sign the final draft of the apology

letter sent by the Kilroys.

       {¶ 8} It is from this judgment that the Kilroys now appeal.

                                               II

       {¶ 9} The Kilroys’ assignments of error are as follows:

       {¶ 10} “THE TRIAL COURT ERRED BY FINDING THAT THE TRUSTEES

COULD NOT ENTER THE SETTLEMENT AGREEMENT WITHOUT HOLDING A

PUBLIC VOTE.”         “THE TRIAL COURT ERRED BY FINDING THAT A VALID

SETTLEMENT EXISTED WITHOUT REQUIRING THE TRUSTEES TO SIGN THE

PREVIOUSLY AGREED-TO APOLOGY LETTER.”

       {¶ 11} “IN THE ALTERNATIVE, IF A PUBLIC VOTE IS A CONDITION

PRECEDENT TO THE TRUSTEES BEING BOUND TO THE SETTLEMENT,

THEN THE TRIAL COURT ERRED BY ENFORCING ONLY THE MONETARY

PORTION OF THE SETTLEMENT AND THIS CASE MUST BE REMANDED.”

       {¶ 12} Initially, we note that the trial court failed to include Civ. R. 54(B)

language in its decision overruling the Kilroys’ motion to enforce the settlement

agreement. Accordingly, there is a lack of a final appealable order, and we are left

without jurisdiction to render a decision on the merits in the instant case.

       {¶ 13} Ohio law provides that appellate courts have jurisdiction to review the

final orders of inferior courts in their district. Section 3(B)(2), Article IV, Ohio

Constitution; R.C. 2505.02. If an order is not final and appealable, then we have

no jurisdiction to review the matter and must dismiss the appeal. Stonehill v. Jones,
                                                                                      5

Athens App. No. 09CA1, 2009-Ohio-6052.          “In the event that this jurisdictional

issue is not raised by the parties involved with the appeal, then the appellate court

must raise it sua sponte.” Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio

St.3d 86, syllabus; Whitaker-Merrell v. Geupel Co. (1972), 29 Ohio St.2d 184. An

order of a court is a final, appealable order only if the requirements of both R.C.

2505.02 and Civ. R. 54(B), if applicable are met. Chef Italiano Corp. v. Kent State

Univ., 44 Ohio St.3d at 88.

      {¶ 14} Under R.C. 2505.02(B)(1), an order is final order if it “affects a

substantial right in an action that in effect determines the action and prevents the

judgment.” For an order to determine the action and prevent a judgment for the

party appealing, it must dispose of the whole merits of the cause or some separate

and distinct branch thereof and leave nothing for the determination of the

court. State ex rel. Downs v. Panioto, 107 Ohio St.3d 347, 2006-Ohio-8, ¶ 20.

      {¶ 15} Additionally, the rationale of Civ. R. 54(B) is “‘to make a reasonable

accommodation of the policy against piecemeal appeals with the possible injustice

created by the delay of appeals,’ as well as to insure that parties to such actions

may know when an order or decree has become final for purposes of appeal.”

Pokorny v. Tilby Dev. Co. (1977), 52 Ohio St.2d 183, 186. Absent the mandatory

language “no just reason for delay,” an order that does not dispose of all claims is

not final and appealable. Noble v. Colwell (1989), 44 Ohio St.3d 92, 96.

      {¶ 16} In the instant case, the trial court notified the parties in an entry filed

on August 23, 2010, that “pursuant to Ohio Civil Rule 58(B) *** a judgment has

been filed that may be a final appealable order.” The entry in this case simply
                                                                                6

informed the parties that a final appealable order may have been issued. The

decision of August 23, 2010, did not refer to Civ. R. 54(B) and did not cite any

language from the rule. Accordingly, we hold that the trial court’s judgment entry

issued on August 23, 2010, is not a final appealable order, and the appeal is

dismissed.

                                   ..........

GRADY, P.J., DONOVAN, J., FROELICH, J., concur.

Copies mailed to:

Christopher R. Conard
David P. Pierce
Sasha Alexa M. VanDeGrift
Douglas M. Trout
Hon. Dennis Adkins, Judge
