[Cite as Geauga Savs. Bank v. Rickard, 2013-Ohio-3863.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                  ASHTABULA COUNTY, OHIO


GEAUGA SAVINGS BANK,                                      :   MEMORANDUM OPINION

                 Plaintiff-Appellee,                      :
                                                              CASE NO. 2012-A-0052
        - vs -                                            :

LAWRENCE P. RICKARD, et al.,                              :

                 Defendant-Appellee,                      :

THE BOARD OF TRUMBULL TOWNSHIP                            :
TRUSTEES,
                                                          :
                 Intervening
                 Defendant-Appellant.                     :


Civil Appeal from the Court of Common Pleas, Case No. 2011 CV 1081.

Judgment: Appeal dismissed.


Michael D. Stultz, Meyer & Kerschner, Ltd., 106 E. Market Street, P.O. Box 400, Tiffin,
OH 44883 and Christopher C. Camboni, Meyer & Kerschner, Ltd., 4249 Easton Way,
Suite 150, Columbus, OH 43219 (For Plaintiff-Appellee).

Gary L. Pasqualone, Curry and Pasqualone, 302 South Broadway, Geneva, OH
44041 (For Defendant-Appellee).

Thomas L. Sartini, Ashtabula County Prosecutor, and Catherine R. Colgan, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Intervening Defendant-Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Proposed intervenor-appellant, the Board of Trumbull Township Trustees

(“the Board”), appeals the trial court’s entry denying its motion to intervene.
      {¶2}   A review of the docket in this matter reveals that this case arises from a

foreclosure action involving two parcels of real estate in Trumbull Township. The Board

claimed an equitable interest in the real estate by virtue of a constructive trust.

However, on July 3, 2008, the Board also filed a breach of contract action in the trial

court, under Case No. 2008 CV 925. The docket in that case reveals that there has

been no monetary judgment awarded to the Board, nor has there been any

determination entitling the Board to payment.

      {¶3}   In denying the Board’s motion to intervene, the trial court explained in an

October 9, 2012 judgment entry that “ * * * a constructive trust has not been established

when the [Board] has not yet established the claimed breach of contract or the amount

of damages. * * * The issues that must be resolved as a prerequisite to making a claim

in a foreclosure case must be litigated in Case No. 2008 CV 925.”

      {¶4}   It is from the October 9, 2012 entry, that the Board filed a notice of appeal

on November 6, 2012.

      {¶5}   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 (1989). According to Section 3(B)(2), Article IV of the

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

appellate court only if it constitutes a “final order” in the action. Germ v. Fuerst, 11th

Dist. No. 2003-L-116, 2003-Ohio-6241, ¶3. If a lower court’s order is not final, then an

appellate court does not have 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 (1989).




                                            2
       {¶6}   “An order of a court is a final appealable order only if the requirements of

both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met.” State ex rel. Scruggs v.

Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315. Thus, the threshold requirement is that the

order satisfies the criteria of R.C. 2505.02. See Gehm v. Timberline Post & Frame, 112

Ohio St.3d 514, 2007-Ohio-607.         “There is no authority to support the general

proposition that [the denial of a] motion to intervene always constitutes a final,

appealable order.” Id. at ¶36.

       {¶7}   R.C. 2505.02(B) provides that “[a]n order is a final order that may be

reviewed, affirmed, modified, or reversed, * * * when it is * * * [a]n order that affects a

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

judgment.” R.C. 2505.02(A)(1) defines a substantial right as, “a right that * * * a statute

* * * entitles a person to enforce or protect.” Thus, the trial court’s denial of the motion

to intervene in this case only qualifies as a final, appealable order under R.C. 2505.02 if

it affects a “substantial right” as defined by R.C. 2505.02(A)(1) and if it “in effect

determines the action and prevents a judgment.” R.C. 2505.02(B).

       {¶8}   The Ohio Supreme Court held that because “a motion to intervene is a

right recognized by Civ.R. 24, intervention constitutes a substantial right under R.C.

2505.02(A)(1).” Gehm at ¶29. Therefore, we must determine whether the denial of the

motion in this case “in effect determines the action and prevents a judgment” pursuant

to R.C. 2505.02(B).

       {¶9}   In State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty., 121 Ohio

St.3d 507, 2009-Ohio-1523, the Ohio Supreme Court discussed whether an appeal from

a denial of a motion to intervene was a final and appealable order. In that case, the




                                             3
appellate court denied the proposed party’s motion to intervene, and the case was

eventually appealed to the Ohio Supreme Court.             In finding that the proposed

intervenor’s appeal was timely filed, the high court stated that because the motion to

intervene was not a final, appealable order, it was proper for the proposed intervenor to

wait until the case was disposed of to file its appeal. Id. The court found that “[a]lthough

intervention constitutes a substantial right under R.C. 2505.02(A)(1), ‘[t]he denial of a

motion to intervene, when the purpose for which intervention was sought may be

litigated in another action, does not affect a substantial right under R.C. 2505.02(B) that

determines the action and prevents the judgment.’” Id. at ¶14, quoting Gehm.

       {¶10} Here, the purpose for which the intervention was sought can be litigated in

another action, Case No. 2008 CV 925. Thus, the trial court’s October 9, 2012 denial of

the motion to intervene does not affect a substantial right that determines the action and

prevents a judgment. Therefore, there is no final and appealable order.

       {¶11} Based on the foregoing discussion, this court concludes that the Board

has not properly invoked our jurisdiction by basing the present appeal upon a final

appealable order. Accordingly, at this juncture, we would not have the authority to

review the actual merits of the “intervention” decision. This appeal is dismissed, sua

sponte, for lack of a final appealable order.

       {¶12} Appeal dismissed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




                                                4
