[Cite as Brown v. Potter, 2015-Ohio-4289.]




                               IN THE COURT OF APPEALS OF OHIO
                                  SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY


KENNETH J. BROWN, et al.

        Plaintiffs-Appellants
v.

DANIEL R. POTTER, et al.

        Defendants-Appellees

Appellate Case Nos. 26774
                    26775


Trial Court Case No. 2014 CV 02770

(Civil Appeal from
 Common Pleas Court)
                            DECISION AND FINAL JUDGMENT ENTRY
                                      October 13, 2015

PER CURIAM:

        {¶ 1} This consolidated matter is before the court on the notices of appeal filed

July 23, 2015, appealing the trial court’s July 7, 2015 summary judgment decision. The

decision, resolving several motions for summary judgment and nearly resolving the

underlying real estate dispute, concludes:

                [Phillipsburg Aviation, Inc.] is entitled to summary judgment in its favor

        that the Lease remains valid with the present term continuing to July 1,

        2017. It also is granted summary judgment on its claim for specific
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       performance [of its right of first refusal to purchase the property] against

       Brown and the Henz defendants, and the Court holds the transfer to Brown

       rescinded as soon as PAI exercises its option. As discussed above, PAI has

       not shown that it is “ready, willing, and able” to complete the purchase for

       the $504,996.00. The Court directs that PAI inform the Court if it still seeks

       specific performance for its option to purchase in light of the Court’s holding

       that its Lease has been renewed for another five-year term. It will do so by

       tendering that amount with the Clerk of Courts within fifteen days of the entry

       of this judgment. The trial date set in this matter is vacated.

No Civ.R. 54(B) certification was included in the decision.

       {¶ 2} On August 27, 2015, this court ordered appellants to show cause as to why

these appeals should not be dismissed for lack of jurisdiction. It appeared to the court that

the July 7, 2015 decision was not final and appealable in accordance with R.C. 2505.02, in

that the trial court contemplated further action, i.e., it ordered a party to inform the court “if

it still seeks specific performance for its option to purchase in light of the Court’s holding,”

which would affect the trial court’s anticipated final decision in the case. Proceedings

were continuing in the trial court at that time; the trial court entered a “Judgment Entry

Rescinding Prior Sale, Ordering Deed and Distribution of Funds Held by the Clerk” on

September 4, 2015. That order appears intended to be the final judgment in the case.

       {¶ 3} On September 9 and 10, 2015, appellants filed responses to the show cause

orders. They did not argue that the July 7, 2015 order was final at that time, as indeed a

“judgment that leaves issues unresolved and contemplates that further action must be

taken is not a final appealable order.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-
                                                                                           3


905, 843 N.E.2d 164, ¶ 20 (internal quotation omitted). Appellants instead argue that the

notices of appeal were premature pursuant to App.R. 4(C), but can be treated as filed

immediately after the September 4, 2015 decision, which is the final judgment.

       {¶ 4} We disagree. App.R. 4(C) applies to a specific set of circumstances not

present in this appeal:

       A notice of appeal filed after the announcement of a decision, order, or

       sentence but before entry of the judgment or order that begins the running of

       the appeal time period is treated as filed immediately after the entry.

App.R. 4(C). The rule addresses situations where a notice of appeal is filed in between a

trial court’s announcement of its decision, and the written judgment entry journalizing that

decision.   Ralston v. Chrysler Credit Corp., 6th Dist. Lucas No. L-98-1312, 1998 WL

852581, *2 (Nov. 25, 1998) (App.R. 4(C) “pertains only to the timeliness of appeals from

orders announced but not yet entered”); Cleveland v. Trzebuckowski, 85 Ohio St.3d 524,

526, 709 N.E.2d 1148 (1999).

       {¶ 5} In Trzebuckowski, the Supreme Court of Ohio applied App.R. 4(C) to a

notice of appeal filed 67 days after the order was prepared, but 15 days before the same

order was journalized. The entry was in substance a final appealable order (except for the

lack of journalization), and became final once journalized. The court noted the unique

situation App.R. 4(C) presents:

       Because the city’s notice of appeal was filed prior to the journalization of the

       court's judgment, the notice was premature. When a notice of appeal is filed

       after a judgment is announced, but before the judgment is entered, that

       notice is treated as filed immediately after the judgment is entered. App.R.
                                                                                           4


      4(C). Thus, in the case sub judice, the city’s notice of appeal is considered

      filed and effective on September 12, 1995, the date the court’s judgment

      was filed and became final.

Trzebuckowski at 527.

      {¶ 6} A different situation is presented here. The trial court entered an order on

July 7, 2015, which the parties appear to acknowledge was not a final appealable order.

The order was journalized on that date. On September 4, 2015, the trial court entered and

journalized a second order, which appears intended to be a final order. The notice of

appeal was filed in between the journalization of these two separate orders, and App.R.

4(C), by its express terms, does not apply.

      {¶ 7} Although Ohio case law is not entirely consistent in this regard, this court

does not construe App.R. 4(C) to apply more generally to appeals of clearly interlocutory

orders that later merge into a final order and become final at that time. This situation is

governed by App.R. 4(A)(2), which provides that “a party who wishes to appeal from an

order that is not final upon its entry but subsequently becomes final--such as an order that

merges into a final order entered by the clerk or that becomes final upon dismissal of the

action--shall file the notice of appeal required by App.R. 3 within 30 days of the date on

which the order becomes final.” Premature filing, in the vernacular sense, does not allow

parties to appeal orders that are interlocutory. See Finnegan v. Hillsboro Ford-Mercury

Sales, 4th Dist. Highland No. 10CA16, 2011-Ohio-5359, ¶ 10 (Harsha, P.J., concurring)

(App.R. 4(C) does not apply to appeals from orders that are simply interlocutory). Allowing

parties to appeal any interlocutory order where it is “premature” in that sense would

contravene the final appealable order statute and the jurisdictional requirement of a final
                                                                                           5


appealable order. R.C. 2505.02; Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d

17, 20, 540 N.E.2d 266 (1989). We decline to do so. The order on appeal in this case,

the July 7, 2015 summary judgment decision, is interlocutory. Without a final appealable

order, this court lacks jurisdiction. Id.

       {¶ 8} We cannot accept appellants’ argument that the order on appeal became

final by virtue of the September 4, 2015 decision for a second reason. The Supreme

Court of Ohio has “consistently held that once an appeal is perfected, the trial court is

divested of jurisdiction over matters that are inconsistent with the reviewing court’s

jurisdiction to reverse, modify, or affirm the judgment.” State ex rel. Electronic Classroom

of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-

626, 950 N.E.2d 149, ¶ 13 (internal quotation omitted). In other words, a trial court lacks

jurisdiction to act on “those claims that could be affected while the appeal [is] pending.”

Id. at ¶ 15-16.    Here, the appeal affects, among other things, the claims for specific

performance and rescission of the deed, which are the subject of the trial court’s

September 4, 2015 order.

       {¶ 9} The fact that we are dismissing the appeal for lack of jurisdiction does not

change this result. Electronic Classroom at ¶ 15-17; Horvath v. Packo, 2013-Ohio-56, 985

N.E.2d 966, ¶ 30 (6th Dist.). We find this case analogous to Electronic Classroom:

       In both cases, the trial court issued an order that was not a final judgment. *

       * * In addition, while the appeals were pending, both trial courts continued in

       a manner consistent with the appealed orders, but the trial courts’

       subsequent actions were not proceedings in aid of execution. The trial courts

       entered final judgment on the matter while the initial appeals were still
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       pending. Finally, the initial appeals were later dismissed for lack of a final,

       appealable order. Because we find no material distinction between

       Electronic Classroom and the present situation, we find its reasoning

       applicable here, and conclude that the trial court lacked jurisdiction to enter

       its December 19 and 22, 2011 orders while Horvath’s appeal from the

       October 7, 2011 order was still pending.

Id. at ¶ 44. We also conclude that because the trial court here lacked jurisdiction to enter

the September 4, 2015 order, the order cannot be used to make the earlier interlocutory

order final.

       {¶ 10} Because there is no final order before us, we lack jurisdiction. The appeal is

therefore DISMISSED, and no action is taken on the pending motion to stay. Appellants

may file a new notice of appeal once the trial court re-enters a final order resolving this

case after dismissal. See Chase Manhattan Bank v. Salehi, 11th Dist. Portage No. 2000-

P-0114, 2001 WL 137581, *1 (Jan. 16, 2001) (“if the trial court has already issued such an

order, the trial court will have to refile that order because the trial court did not have

jurisdiction to take such action after appellants filed their original notice of appeal”).

       {¶ 11} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the

Montgomery County Court of Appeals shall immediately serve notice of this judgment

upon all parties and make a note in the docket of the mailing.

       SO ORDERED.


                                                   JEFFREY E. FROELICH, Presiding Judge
                                                                                      7


                                                 MIKE FAIN, Judge



                                                 JEFFREY M. WELBAUM, Judge

Copies to:

Diane Marx
7925 Graceland Street
Dayton, Ohio 45459
Attorney for Appellants, Christine O’Connor, Martin Hoops, Cynthia Hoops, Kenneth Henz,
John Henz, and Karen Henz

James Fullencamp
131 N. Ludlow Street, Suite 1315
Dayton, Ohio 45402
Attorney for Appellant, Kenneth Brown

Richard Schulte
Stephen Behnke
812 E. National Road, Suite A
Vandalia, Ohio 45377
Attorneys for Appellee, Phillipsburg Aviation, Inc.

Johnathan Zweizig
18 E. Water Street
Troy, Ohio 45373
Attorney for Appellees, Daniel Potter and Jaime Potter

Hon. Richard Skelton
Montgomery County Common Pleas Court
41 N. Perry Street
P.O. Box 972
Dayton, Ohio 45422
CA3/KY
