[Cite as Jarvis v. Staley, 2012-Ohio-3832.]


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

DENNIS R. JARVIS, et al.,             :    Case No. 10CA15
                                      :
     Plaintiffs-Appellants,           :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
MORGAN S. STALEY, et al.,             :
                                      :    RELEASED 08/22/12
     Defendants-Appellees.            :
______________________________________________________________________
                            APPEARANCES:

Douglas J. Blue, Blue & Blue, LLC, Columbus, Ohio, for appellants.

George J. Cosenza, Parkersburg, West Virginia, for appellee Claudia Staley.
______________________________________________________________________
Harsha, J.

        {¶1}     Dennis and Diana Jarvis filed suit against Morgan and Claudia Staley,

alleging that Morgan negligently operated a vehicle, which Claudia negligently entrusted

to him, causing them personal and derivate injuries. The Jarvises now appeal the trial

court’s decision to grant Claudia a summary judgment on the negligent entrustment

claim. However, the Jarvises’ claims against Morgan remain pending, as do

counterclaims the Staleys filed against Dennis. Because the trial court did not certify

that there was “no just reason for delay” as Civ.R. 54(B) requires, we lack jurisdiction to

consider this appeal and must dismiss it.

                                              I. Facts

        {¶2}     The Jarvises filed a complaint against Morgan, Claudia, and Grange

Mutual Casualty Company (“Grange”) in case number 08 TR 256. The complaint

alleged that Morgan negligently rear-ended the vehicle Dennis was driving, injuring
Washington App. No. 10CA15                                                                  2


Dennis and causing Diana the loss of her husband’s consortium. It also alleged that

Claudia was liable for the Jarvises’ injuries and damages because she owned the

vehicle Morgan was driving and negligently entrusted it to him. In addition, the Jarvises

alleged that they had an insurance policy issued by Grange and were entitled to

compensation under the uninsured/underinsured motorist and medical payment

sections of that policy. The Staleys filed counterclaims against Dennis, alleging that his

negligence or recklessness during the incident resulted in personal injuries to Morgan.

The Staleys also alleged that Claudia incurred substantial medical and other expenses

for the care and treatment of Morgan, her minor son, and suffered the loss of her son’s

consortium.

       {¶3}   The Jarvises voluntarily dismissed their claim against Grange. However,

Grange also filed a complaint for declaratory judgment in case number 09 OT 60,

seeking a declaration that it had no duty to defend Dennis against the Staleys’

counterclaims. On Grange’s motion, the trial court consolidated 08 TR 256 and 09 OT

60. Later, the court granted an unopposed motion for summary judgment Grange filed

regarding its request for declaratory judgment and dismissed Grange from the case.

       {¶4}   Subsequently, Claudia filed a motion for summary judgment on the

negligent entrustment claim, which the trial court granted. Prior to the trial on the

remaining claims, Morgan notified the court that he filed for bankruptcy. The trial court

issued an entry staying the case due to the pending bankruptcy action and stating that

“this Court’s orders with regard to the other Defendants including, but not limited to

Defendant Claudia Staley, are final and constitute final appealable orders.” This appeal

followed.
Washington App. No. 10CA15                                                                       3


                                  II. Assignments of Error

       {¶5}   The Jarvises assign four errors for our review:

       1. WHETHER DEFENDANT/APPELLEE CLAUDIA STALEY’S
          PERMITTING DEFENDANT MORGAN STALEY TO USE THE ALL-
          TERRAIN VEHICLE MADE THE ALL-TERRAIN VEHICLE A
          DANGEROUS INSTRUMENTALITY SUCH THAT
          DEFENDANT/APPELLEE CLAUDIA STALEY SHOULD BE LIABLE
          FOR NEGLIGENT ENTRUSTMENT TO PLAINTIFFS/APPELLANTS
          DENNIS AND DIANA JARVIS.

       2. THE TRIAL COURT ERRED IN FINDING THAT
          DEFENDANT/APPELLEE CLAUDIA STALEY DID NOT FAIL TO
          EXERCISE CONTROL OVER HER SON, DEFENDANT MORGAN
          STALEY IN HIS USE OF THE ALL-TERRAIN VEHICLE SUCH THAT
          DEFENDANT/APPELLEE CLAUDIA STALEY WAS LIABLE FOR
          NEGLIGENT ENTRUSTMENT. (Tr. [a]t pp.3; Trial Court’s Entry)

       3. THE TRIAL COURT ERRED IN FINDING THAT
          DEFENDANT/APPELLEE CLAUDIA STALEY DID NOT SANCTION
          OR OTHERWISE DIRECT PLAINTIFF MORGAN STALEY’S
          NEGLIGENCE. (Tr. [a]t pp.3; Trial Court’s Entry)

       4. THE TRIAL COURT ERRED BY GRANTING
          DEFENDANT/APPELLEE CLAUDIA STALEY SUMMARY JUDGMENT
          WHEN THE ISSUE OF OWNERSHIP OF THE ALL-TERRAIN
          VEHICLE PRESENTED A GENUINE ISSUE OF MATERIAL FACT.
          (Tr. [a]t pp.4; Trial Court’s Entry)

                           III. No Final, Appealable Order Exists

       {¶6}   Before we address the merits of this appeal, we must decide whether we

have jurisdiction to do so. Appellate courts “have such jurisdiction as may be provided

by law to review and affirm, modify, or reverse judgments or final orders of the courts of

record inferior to the court of appeals within the district[.]” Ohio Constitution, Article IV,

Section 3(B)(2); see R.C. 2505.03(A). If a court’s order is not final and appealable, we

have no jurisdiction to review the matter and must dismiss the appeal. Eddie v.

Saunders, 4th Dist. No. 07CA7, 2008-Ohio-4755, ¶ 11. In the event that the parties do
Washington App. No. 10CA15                                                                     4

not raise the jurisdictional issue, we must raise it sua sponte. Sexton v. Conley, 4th

Dist. No. 99CA2655, 2000 WL 1137463, *2 (Aug. 7, 2000).

       {¶7}   An order must meet the requirements of both R.C. 2505.02 and Civ.R.

54(B), if applicable, to constitute a final, appealable order. Chef Italiano Corp. v. Kent

State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989). Under R.C. 2505.02(B)(1), an

order is a final order if it “affects a substantial right in an action that in effect determines

the action and prevents a judgment[.]” To determine the action and prevent a judgment

for the party appealing, the order “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.” Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v. Professionals

Guild of Ohio, 46 Ohio St.3d 147, 153, 545 N.E.2d 1260 (1989).

       {¶8}   Additionally, if the case involves multiple parties or multiple claims, the

court’s order must meet the requirements of Civ.R. 54(B) to qualify as a final,

appealable order. Under Civ.R. 54(B), “[w]hen 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 there is no just

reason for delay.” Absent the mandatory language that “there is no just reason for

delay,” an order that does not dispose of all claims is subject to modification and is not

final and appealable. Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989);

see Civ.R. 54(B). The purpose of Civ.R. 54(B) is “ ‘to make a reasonable

accommodation of the policy against piecemeal appeals with the possible injustice
Washington App. No. 10CA15                                                                   5


sometimes 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., 52 Ohio St.2d 183, 186, 370 N.E.2d 738

(1977), quoting Alexander v. Buckeye Pipeline, 49 Ohio St.2d 158, 160, 359 N.E.2d 702

(1977).

       {¶9}   Here, the case obviously involves multiple parties and claims. The claims

related to Grange have been resolved. However, the Jarvises’ claims against Morgan

obviously remain pending, as do the counterclaims Morgan and Claudia filed. The trial

court’s May 28, 2010 entry granting Claudia’s motion for summary judgment and

dismissing the claims against her does not contain the mandatory Civ.R. 54(B)

language that “there is no just reason for delay” of an appeal of the ruling. In the entry

staying the case due to Morgan’s bankruptcy proceeding, the trial court stated that “this

Court’s orders with regard to the other Defendants including, but not limited to

Defendant Claudia Staley, are final and constitute final appealable orders.” Despite the

trial court’s obvious intent to convert its ruling on Claudia’s motion for a summary

judgment into a final order, the language used is insufficient to comply with the

requirement of Civ.R. 54(B) that the court certify “there is no just reason for delay” of an

appeal. See Internatl. Bhd. of Elec. Workers, Local Union No. 8 v. Vaughn Industries,

L.L.C., 116 Ohio St.3d 335, 2007-Ohio-6439, 879 N.E.2d 187, ¶ 8 (“A court may not

bypass the requirement to include the express language of Civ.R. 54(B) simply by

designating the order as final.”); Brisk v. Draf Industries, Inc., 10th Dist. No. 11AP-23,

2012-Ohio-777, ¶ 6 (dismissing appeal where trial court’s order lacked “compulsory

determination that there is no just reason for delay” despite fact that order “clearly
Washington App. No. 10CA15                                                               6


indicate[d] an intent to render a final, appealable order”).

       {¶10} Accordingly, we dismiss the appeal for lack of a final, appealable order.

                                                                  APPEAL DISMISSED.
Washington App. No. 10CA15                                                                 7


                                   JUDGMENT ENTRY

         It is ordered that the APPEAL BE DISMISSED and that Appellants shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.


                                          For the Court


                                          BY: ________________________
                                              William H. Harsha, 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.
