[Cite as State ex rel. DeWine v. RAAW, L.L.C., 2015-Ohio-4547.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO ex rel. MICHAEL                          :          MEMORANDUM OPINION
DEWINE, OHIO ATTORNEY GENERAL,
                                                       :
                 Plaintiff,                                       CASE NO. 2015-T-0046
                                                       :
        - vs -
                                                       :
RAAW, LLC, et al.,
                                                       :
                 Defendants-Appellees,
                                                       :
EVERGREEN ENVIRONMENTAL CORP.,
                                                       :
                 Defendant-Appellant.


Civil Appeal from the Court of Common Pleas, Case No. 2013 CV 674.

Judgment: Appeal dismissed.


Mark F. Fischer and James A. DeSmith, Fischer, Evan & Robbins, Ltd., 3521 Whipple
Avenue, N.W., Canton, OH 44718 and Charles E. Dunlap, 7330 Market Street,
Youngstown, OH 44512 (For Defendants-Appellees).

David W. Goldense, 50 Public Square, Suite 920, Cleveland, OH                      44113 (For
Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     Appellant, Evergreen Environmental Corp., appeals the trial court’s April 7,

2015 entry granting appellees’, RAAW, LLC, Robert A. Walley, Sr., and Robert M.

Walley, motion for summary judgment.

        {¶2}     On March 25, 2013, plaintiff, the State of Ohio ex rel. Michael DeWine,

Ohio Attorney General (“the Plaintiff”), filed an action for injunctive relief and civil penalty
on behalf of the Ohio EPA for violations of the Clean Water Act against appellees,

appellant, and several other defendants. The alleged violations occurred on several

parcels of property, each of which has been owned by RAAW at the time of the alleged

violations. The other defendants are those that subsequently purchased the parcels of

property from RAAW. Those defendants filed cross-claims against appellees seeking

indemnification for any fines assessed against them and for their legal costs.      Erie

Insurance Exchange and Westfield Insurance Company intervened seeking declaratory

judgment that they owed no coverage for the claims asserted against RAAW.

       {¶3}   The Plaintiff along with the insurance companies filed motions for

summary judgment against appellees. Appellees filed a motion for summary judgment

against appellant and the other cross-claimants arguing that there is no right of

indemnification for the Clean Water Act violations.

       {¶4}   The trial court granted appellees’ motion for summary judgment, and

dismissed the cross-claims of appellant and the other defendants.         Subsequently,

appellant filed a motion for relief from judgment or, in the alternative a motion for

reconsideration, which the trial court denied.

       {¶5}   Appellees filed an “Unopposed Motion to Dismiss Appeal or, In the

Alternative, Motion to Stay.”    In their motion, appellees allege that the appeal is

premature given the damages hearing that is scheduled in the trial court for November

2, 2015.

       {¶6}   Initially, we must determine whether there is a final, appealable order, as

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


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

Dist. Lake 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). 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.

       {¶7}   R.C. 2505.02(B) defines a final order as one of the following:

       {¶8}   “An order is a final order that may be reviewed, affirmed, modified, or

reversed, with or without retrial, when it is one of the following:

       {¶9}   “(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

       {¶10} “(2) An order that affects a substantial right made in a special proceeding

or upon a summary application in an action after judgment;

       {¶11} “(3) An order that vacates or sets aside a judgment or grants a new trial;

       {¶12} “(4) An order that grants or denies a provisional remedy and to which both

of the following apply:

       {¶13} “(a) The order in effect determines the action with respect to the

provisional remedy and prevents a judgment in the action in favor of the appealing party

with respect to the provisional remedy.

       {¶14} “(b) The appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment as to all proceedings, issues, claims, and

parties in the action.




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       {¶15} “(5) An order that determines that an action may or may not be maintained

as a class action;

       {¶16} “(6) An order determining the constitutionality of any changes to the

Revised Code * * *;

       {¶17} “(7) An order in an appropriation proceeding * * *.”

       {¶18} Here, the trial court’s April 7, 2015 order granted appellees’ motion for

summary judgment and dismissed appellant’s cross-claims and also stated that “[t]his is

a final and appealable order and there is no just cause for delay.”

       {¶19} A civil proceeding that defers damages for a later determination of an

uncertain amount is not a final appealable order because it does not determine the

action, prevent a judgment, or affect a substantial right in a special proceeding. State

ex rel. DeWine v. Big Sky Energy, Inc., 11th Dist. No. Ashtabula 2012-A-0042, 2013-

Ohio-437, ¶ 12. Therefore, there is no final order as damages remain undetermined.

       {¶20} Although the trial court included Civ.R. 54(B) language in its April 7, 2015

judgment, the mere incantation of this language does not convert the entry into a final

order. See Noble, supra, at 96.

       {¶21} For the foregoing reasons, appellees’ motion to dismiss the appeal is

granted, and this appeal is hereby dismissed for lack of a final appealable order.

       {¶22} Appeal dismissed.



TIMOTHY P. CANNON, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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