[Cite as Debis v. Pineview Court Condominium Assn., Inc. , 2011-Ohio-5931.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96740




                              JERRY J. DEVIS, ET AL.
                                                          PLAINTIFFS-APPELLEES

                                                    vs.

  PINEVIEW COURT CONDOMINIUM ASSOCIATION,
                 INC., ET AL.
                                                          DEFENDANTS-APPELLANTS




                                           JUDGMENT:
                                            DISMISSED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-646202

        BEFORE: Rocco, J., Blackmon, P.J., and Celebrezze, J.

    RELEASED AND JOURNALIZED: November 17, 2011
ATTORNEYS FOR APPELLANTS
                               2


For Gemini Development Group

Patrick S. Corrigan
55 Public Square
Suite 930
Cleveland, Ohio 44113

For R.E. Warner & Associates

F. Thomas Vickers
Vickers Law Group Co., LPA
1119 Bassett Road
Westlake, Ohio 44145

ATTORNEYS FOR APPELLEES

For Jerry J. Devis, et al.

Kerrie K. Matre
Joseph L. Beyke
Matre & Beyke Co., LPA
Conrey Business Center
11800 Conrey Road
Suite 200
Cincinnati, Ohio 45249

F. Harrison Green
4015 Executive Park Drive
Suite 105
Cincinnati, Ohio 45241

Francis P. Manning
Western Reserve Law Building
7556 Mentor Avenue
Mentor, Ohio 44060



For Rosine M. Botten
                                      3


Robert E. Goff, Jr.
Weston Hurd, LLP
The Tower at Erieview
1301 East Ninth Street, Suite 1900
Cleveland, Ohio 44114-2241

For Pineview Court Condominium Association, et al.

Brian P. Downey
Jennifer E. Schwartz
Schwartz, Downey & Co., LPA
1616 Guildhall
45 West Prospect Avenue
Cleveland, Ohio 44115

Robert J. Koeth
Koeth, Rice & Leo Co., LPA
1280 West Third Street
Third Floor
Cleveland, Ohio 44113-1514

For Specialized Construction Inc.

Richard E. Herthneck
Richard E. Herthneck Co., LPA
20220 Center Ridge Road
Suite 304
Rocky River, Ohio 44116

For Willoughby Supply Co.

Cari Fusco Evans
Fischer, Evans, Robbins Ltd.
4505 Stephen Circle, N.W.
Suite 100
Canton, Ohio 44718
                                            4

KENNETH A. ROCCO, J.:

       {¶ 1} Defendants-appellants Gemini Development Group and R.E. Warner &

Associates1 appeal from the order of the Cuyahoga County Court of Common Pleas that

“granted in part and denied in part” the motion for certification that plaintiffs-appellees

Jerry J. Devis and Michael A. Duvall filed pursuant to Civ.R. 23.1.2

       {¶ 2} Appellants present two assignments of error that challenge the propriety of

the trial court’s order. However, since the order is not final, this appeal is dismissed.

       {¶ 3} The facts are briefly summarized to illustrate this court’s decision to dismiss

this appeal. Appellees, owners of two condominium units, filed an amended complaint

against their condominium association, the members of the association’s Board of

Managers, all of the other owners, and certain contractors; appellants were among the

foregoing.

       {¶ 4} Appellees brought causes of action seeking certification, and for declaratory

judgment, breach of contract, breach of duty to repair common areas, breach of duty to

maintain reserves, breach of fiduciary duty, civil conspiracy, and waste.              As to

appellants, appellees alleged they breached contracts made with the association.

Appellants additionally brought individual claims against the Board and its officers, and


       1 The   trial court referred to appellants below as two of the “commercial
defendants.”
       2 Civ.R.
              23.1 permits corporate shareholders to file derivative actions to
enforce a right of the corporation that the corporation itself refuses to enforce.
                                             5

requested the court appoint a receiver to oversee the business of the association during the

pendency of the action.

       {¶ 5} After the defendants filed their answers to the amended complaint,

appellees subsequently filed a separate Civ.R. 23.1 motion for certification. Many of the

defendants filed briefs in opposition to appellees’ motion.3 The trial court heard oral

argument on the matter before issuing its opinion.4

       {¶ 6} In relevant part, the trial court stated in its opinion as follows:

       {¶ 7} “Plaintiffs allege damage to their condominium units from damage/defects

in the common property owned as tenants in common by all unit owners (23 total)

through the Pineview Court Condominium Association, Inc. (wall, foundations, footers,

drainage, driveways, etc). Plaintiffs also complain the common property surrounding

other units (the Association owns 11 separate buildings) has not been properly addressed

by the Association through its Board and Officers. Attempts to repair have allegedly

increased the damage, or, at the least, failed to correct the underlying cause * * * .

Plaintiffs, therefore, seek redress from the commercial defendants [, including

appellants,] hired by the Association to remediate [sic] these problems. Plaintiffs have

no ability to cause the necessary repairs as they only own a 1/23 portion of the common



       3The record reflects that of the two appellants herein, only Gemini filed an
opposition brief.
       4No   transcript was made of this hearing.
                                             6

property at issue. * * * Thus far, the * * * Board and Officers have refused to * * * make

claims against [appellants] for their potential responsibility.

       {¶ 8} “* * *

       {¶ 9} “In regard to the derivative action against [appellants], the Court finds that

plaintiffs have met their burden pursuant to Civ.R. 23.1 * * * . If plaintiffs prevail in

their suit against [appellants], the remedy sought, money damages, is for the direct benefit

of all the unit owners. Also, plaintiffs’ personal interests are not greater than the other

unit owners and plaintiffs would adequately represent all unit owners.

       {¶ 10} “The Court also finds that a derivative action is the only mechanism to

litigate the Associations’ claims against the [appellants] as individual owners lack privity

to pursue a direct action against companies hired by the Association.             Defendants

concede this point as well.

       {¶ 11} “Finally, the Association itself argued * * * that a possible resolution to this

motion would be for the Court to grant the motion for certification as to the [appellants].

       {¶ 12} “For all these reasons, the Court grants in part the Motion for Certification

under Civ.R. 23.1 as to all claims against the [appellants] (counts eight through thirteen).”

       {¶ 13} The trial court concluded its opinion by denying appellees’ motion for

certification with respect to “the Association and its officers and directors for claims

involving breach of contract and breach of fiduciary duty.”
                                            7

       {¶ 14} Appellants filed their notice of appeal from the foregoing order. Although

appellants present two assignments of error, this court lacks jurisdiction to consider them,

because the trial court’s order does not constitute a final order pursuant to either R.C.

2505.02 or Civ.R. 54(B).

       {¶ 15} It is axiomatic that an order must be final before an appellate court has

jurisdiction to review it. Walburn v. Dunlop, 121 Ohio St.3d 373, 2009-Ohio-1221, 904

N.E.2d 863, ¶13, citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17,

540 N.E.2d 266. A final order is one that disposes of either the whole case or some

separate and distinct branch thereof. Noble v. Colwell (1989), 44 Ohio St.3d 92, 94, 540

N.E.2d 1381. If an order from which an appeal is taken is not final and appealable, the

appellate court must dismiss the appeal. Niehaus v. Columbus Maennerchor, Franklin

App. No. 07AP-1024, 2008-Ohio-4067, ¶16.

       {¶ 16} The Supreme Court of Ohio set forth a two-step analysis for determining

whether an order is final and appealable. Walburn. First, the appellate court must

determine whether the order constitutes a final order as defined by R.C. 2505.02. If the

order meets the statutory definition, the court then must determine whether Civ.R. 54(B)

language is required and, if so, whether the order contains a certification that “there is no

just reason for delay.” As in this case, when an order adjudicates fewer than all claims, it

must meet the requirements of both R.C. 2505.02 and Civ.R. 54(B). Id.
                                            8

       {¶ 17} The trial court order from which appellants appeal, therefore, must fit into

at least one of the categories set forth in R.C. 2505.02(B) to be final. Noble at 96. In

pertinent part, R.C. 2505.02(B) defines a final order as one that either “affects a

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

judgment,” or that “affects a substantial right made in a special proceeding or upon a

summary application in an action after judgment.”

       {¶ 18} The supreme court explained the terms used in R.C. 2505.02(B) by stating:

       {¶ 19} “In Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213, we

considered the question of what constitutes a final order in a special proceeding. We held,

‘Orders that are entered in actions that were recognized at common law or in equity and

were not specially created by statute are not orders entered in special proceedings pursuit

to R.C. 2505.02.’ Id. at syllabus. We later clarified that ‘[i]t is the underlying action that

must be examined to determine whether an order was entered in a special proceeding.

Walters v. Enrichment Ctr. of Wishing Well, Inc. (1997), 78 Ohio St.3d 118, 121-122, 676

N.E.2d 890.” Walburn, ¶19.

       {¶ 20} In this case, appellees filed a shareholder derivative suit that alleged

appellants breached a contract they made with the association. Shareholder derivative

actions are recognized in equity and are not special proceedings. Polikoff. An action

alleging breach of contract, obviously, also is one that is recognized at common law.

       {¶ 21} Moreover, Civ.R. 54 provides in pertinent part:
                                            9

       “(B) Judgment upon multiple claims or involving multiple parties

       {¶ 22} “When more than one claim for relief is presented in an action * * *, 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. In the absence of [such] a determination * * *, any order * * *

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.” (Emphasis

added.)

       {¶ 23} In this case, the trial court added no Civ.R. 54(B) language to its order, and

the order simply permitted some of appellees’ claims, such as those against appellants, to

proceed. This failed to either affect any of appellants’ “substantial rights,” or actually

determine appellees’ claims against appellants.

       {¶ 24} Accordingly, appellants have sought to challenge a nonfinal order over

which this court lacks jurisdiction. Polikoff.

       Appeal dismissed.

       It is ordered that appellees recover from appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
                                          10

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________
KENNETH A. ROCCO, JUDGE

PATRICIA ANN BLACKMON, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
