[Cite as Kreiser v. Hamrick, 2016-Ohio-7922.]


                                   IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                    PORTAGE COUNTY, OHIO


JO ANNE R. KREISER,                              :         MEMORANDUM OPINION

                 Plaintiff-Appellee,             :
                                                           CASE NO. 2016-P-0044
        - vs -                                   :

MARTHA HAMRICK, et al.,                          :

                 Defendants-Appellants.          :


Civil Appeal from the Court of Common Pleas, Case No. 2016 CV 00134.

Judgment: Appeal dismissed.


Michael J. Elliott, Scanlon & Elliott, 159 South Main Street, Suite 400, Akron, OH 44308 (For
Plaintiff-Appellee).

Ronald K. Starkey and Adam M. Runkle, Starkey Law Firm, LLC, 638 West Maple Street,
Hartville, OH 44632 (For Defendants-Appellants).


DIANE V. GRENDELL, J.

        {¶1}     On August 9, 2016, appellants, Martha Hamrick and Amelia Breckenridge, by

and through counsel of record, filed a notice of appeal with this court from a judgment entry of

the Portage County Court of Common Pleas.

        {¶2}     The docket reveals that Jo Anne R. Kreiser, appellee, filed a complaint and

petition for discovery under Civ.R. 34(D) and R.C. 2317.48. Appellants motioned the trial court

to dismiss the action against them pursuant to Civ.R. 12(B)(6). Appellee filed a motion to

compel the information in her complaint. In a July 29, 2016 entry, the trial court overruled

appellants’ motion to dismiss and also overruled appellee’s motion to compel as it was not ripe.
The judgment did not include Civ.R. 54(B) language, directing that “there is no just cause for

delay.” The instant appeal ensued.

       {¶3}    On August 16, 2016, appellee moved this court to dismiss the underlying appeal

for want of a final appealable order pursuant to R.C. 2505.02 and Civ.R. 54(B), and also

requested that she be granted an award of attorney fees, costs, and expenses. On August 22,

2016, appellants responded to the motion alleging that the appealed entry is a final appealable

order pursuant to R.C. 2505.02(B)(1), and they also requested an award of fees, costs, and

expenses.

       {¶4}    Initially, we must determine whether there is a final appealable order since this

court may entertain only those appeals from final judgments or orders. Noble v. Colwell, 44

Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989). According to Section 3(B)(2), Article IV of the

Ohio Constitution, a judgment of a trial court can only be immediately reviewed by an appellate

court if it constitutes a “final order” in the action. Estate of Biddlestone, 11th Dist. Trumbull No.

2010-T-0131, 2011-Ohio-1299, ¶ 3. If a trial court’s order is not final, then an appellate court

has no jurisdiction to review the matter, and the matter must be dismissed. Gen. Acc. Ins. Co. v.

Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). For a judgment to be final and

appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B). See

Children’s Hosp. Med. Ctr. v. Tomaiko, 11th Dist. Portage No. 2011-P-0103, 2011-Ohio-6838, ¶

3.

       {¶5}    The notion of a “final order” is premised upon the rationale that the court entering

an order which is not final retains jurisdiction to proceed further in a case. Noble, supra, at 94.

“‘A judgment that leaves issues unresolved and contemplates that further action must be taken is

not a final appealable order.’” State ex rel. Keith v. McMonagle, 103 Ohio St.3d 430, 2004-Ohio-

5580, ¶ 4, quoting Bell v. Horton, 142 Ohio App.3d 694, 696 (4th Dist.2001).


                                                 2
          {¶6}   The denial of a motion to dismiss is ordinarily not a final appealable order. Dave

v. Dave, 11th Dist. Portage No. 2016-P-0020, 2016-Ohio-5185, at ¶ 12. However, pursuant to

R.C. 2505.02(B), there are seven categories of a “final order,” and if the judgment of the trial

court satisfies any of them, it will be deemed a “final order” and can be immediately appealed

and reviewed by a court of appeals.

          {¶7}   R.C. 2505.02(B)(1) and (2) require the order to affect a “substantial right.” An

order affects a substantial right only if “an immediate appeal is necessary to protect the right

effectively.” Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, ¶ 7. Here,

we fail to see how an immediate review of the underlying judgment overruling appellants’

motion to dismiss is necessary to protect their rights. In fact, the trial court’s order does not fit

within any of the categories of R.C. 2505.02(B). The only ruling that has been made so far is the

trial court’s denial of appellants’ motion to dismiss, which did not resolve the issues between the

parties. At this point, the order appellants appealed from is simply interlocutory. Appellants will

have an opportunity to advance their arguments by way of a direct appeal or cross-appeal upon

resolution of all claims in the underlying case. We therefore discern no need for immediate

review.

          {¶8}   Further, even if the order met the elements of R.C. 2505.02(B), it would still,

under these circumstances, remain interlocutory. An appellate court may not review an order

disposing of fewer than all claims when Civ.R. 54(B) language is necessary. Kopp v. Associated

Estates Realty Corp., 10th Dist. Franklin No. 08AP-819, 2009-Ohio-2595, ¶ 10.

          {¶9}   Civ.R. 54(B) provides the following:

                 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


                                                  3
               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.

       {¶10} “Rule 54(B)’s general purpose is to accommodate the strong policy against

piecemeal litigation with the possible injustice of delayed appeals in special situations.” Noble,

supra, at 96, citing Alexander v. Buckeye Pipe Line Co., 49 Ohio St.2d 158, 160 (1977).

       {¶11} This court has repeatedly held that, where there are multiple claims and/or parties

involved, an entry entering final judgment as to one or more but fewer than all of the claims or

parties is not a final, appealable order in the absence of Civ.R. 54(B) language stating that “there

is no just reason for delay[.]” Elia v. Fisherman’s Cove, 11th Dist. Trumbull No. 2010-T-0036,

2010-Ohio-2522, ¶ 6.

       {¶12} In the instant case, appellants’ contention is that the entry is final as to them.

However, the appealed judgment ruled on appellants’ motion to dismiss, but adjudicated fewer

than all the claims, and thus, under Civ.R. 54(B), if claims or parties remain, the order “shall not

terminate the action as to any of the claims or parties.”         Therefore, in the absence of the

stipulation that there is no just cause for delay, the order appealed from “is subject to revision” or

reconsideration by the trial court.

       {¶13} Appellee cites to our holding in Rood v. FRJ, Ltd., 11th Dist. Lake No. 2010-L-

077, 2011-Ohio-2712, as authority for the proposition that the denial of a motion to dismiss falls

under R.C. 2505.02(B)(1) and is a final appealable order. That case is clearly distinguishable

from this matter.

       {¶14} In Rood, this court was faced with the trial court’s partial denial and partial

granting of a motion to dismiss appellant’s complaint and petition for discovery. In that case, we


                                                  4
held that an order granting prelitigation discovery under Civ.R. 34(D) and R.C. 2317.48 is a final

appealable order. Rood does not stand for the proposition that overruling a motion to dismiss is a

final appealable order. To the contrary, the procedural posture of that case reveals the trial

court’s judgment partially denying the motion to dismiss was final because in its entry, the trial

court also compelled discovery.

          {¶15} In this case, the trial court has not issued any order compelling discovery. It only

denied appellants’ motion to dismiss.        Therefore, the subject judgment fails to meet the

requirements of R.C. 2505.02(B); and, even if it did, there are claims still pending that would

necessitate Civ.R. 54(B) language, that there is not just reason for delay.         Thus, no final

appealable order exists at this time.

          {¶16} Accordingly, appellee’s motion to dismiss is granted, and this appeal is hereby

dismissed for lack of a final appealable order.

          {¶17} Appeal dismissed.



TIMOTHY P. CANNON, J.,

THOMAS R. WRIGHT, J.,

concur.




                                                  5
