[Cite as Summit Mgt. Servs., Inc. v. Andrews, 2011-Ohio-2013.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

SUMMIT MANAGEMENT                                          C.A. No.   25515
SERVICES, INC.

        Appellee
                                                           APPEAL FROM JUDGMENT
        v.                                                 ENTERED IN THE
                                                           STOW MUNICIPAL COURT
DEANNA ANDREWS, et al.                                     COUNTY OF SUMMIT, OHIO
                                                           CASE No.   2009 CVF 04471
        Appellants

                                 DECISION AND JOURNAL ENTRY

Dated: April 27, 2011



        CARR, Judge.

        {¶1}    Appellants, Deanna Andrews and Joel Potter, appeal the order of the Stow

Municipal Court which ordered that their first amended answer, counterclaim, and third-

party complaint be stricken.            This Court dismisses the appeal for lack of a final,

appealable order.

                                                     I.

        {¶2}    Appellee, Summit Management Services, Inc. (“Summit”), filed a

complaint alleging that appellants breached a lease agreement. Mr. Potter sent a letter to

the trial court, answering the complaint and denying the allegations. Subsequently, an

attorney filed a notice of appearance on behalf of both Ms. Andrews and Mr. Potter.

        {¶3}    Ms. Andrews and Mr. Potter filed a motion to dismiss the complaint,

Summit responded in opposition, and the defendants replied. The magistrate denied the
                                             2


motion to dismiss. Ms. Andrews and Mr. Potter filed a combination motion which

included, among other things, a motion to set aside the magistrate’s order and a motion

for leave to file an amended answer and counterclaim. On April 20, 2010, the trial court

denied the defendants’ motion to set aside and motion for leave to file an amended

answer and counterclaim. The next day, the magistrate granted leave to the defendants to

file an amended answer and counterclaim. Ms. Andrews and Mr. Potter thereafter filed a

“first amended answer, counterclaim and third-party complaint.” Summit filed a letter

with the clerk of courts, requesting that the clerk strike the magistrate’s April 21, 2010

order because it ruled on a motion which the judge had denied one day earlier. In

response, the magistrate ordered the following: “The magistrate controls the case and

docket and the Defendant will be permitted to litigate and defend her case.             The

magistrate’s Order of 4-21-10 will remain in effect.”

       {¶4}   On May 19, 2010, Ms. Andrews and Mr. Potter filed a motion for class

certification. On June 3, 2010, and after a hearing on May 27, 2010, the trial court judge

issued an order directing that her April 20, 2010 order “stands.” The trial court reiterated

that the defendants’ motion for leave to file an amended answer and counterclaim was

denied and that the magistrate’s April 21, 2010 order to the contrary was “moot.” The

trial court, therefore, ordered stricken from the record the defendants’ amended answer,

counterclaim, and third-party complaint. The trial court denied the motion for class

certification as the basis for the motion (the counterclaim and third-party complaint) no

longer existed.   The trial court noted that the only remaining claim was Summit’s
                                             3


complaint and scheduled the matter for a bench trial. Ms. Andrews and Mr. Potter

appealed, raising one assignment of error.

                              ASSIGNMENT OF ERROR

       “THE TRIAL COURT ABUSED IT[S] DISCRETION BY STRIKING
       DEFENDANTS’ PLEADINGS FOR THE EXPRESS PURPOSES OF
       AVOIDING THE BURDEN OF A CLASS ACTION ON THE COURT
       CLERK, AVOIDING CONSIDERATION OF THE MERITS OF THE
       CLASS ACTION CLAIM AND PRESSURING APPELLANTS TO
       SETTLE.”

       {¶5}   In their sole assignment of error, Ms. Andrews and Mr. Potter argue that the

trial court abused its discretion by striking their amended answer, counterclaim, and

third-party complaint.

       {¶6}   As a preliminary matter, this Court is obligated to raise sua sponte

questions related to our jurisdiction. Whitaker-Merrell Co. v. Geupel Constr. Co., Inc.

(1972), 29 Ohio St.2d 184, 186. This Court has jurisdiction to hear appeals only from

final judgments. Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2501.02. In the

absence of a final, appealable order, this Court must dismiss the appeal for lack of subject

matter jurisdiction. Lava Landscaping, Inc. v. Rayco Mfg., Inc. (Jan. 26, 2000), 9th Dist.

No. 2930-M. “An order is a final appealable order if it affects a substantial right and in

effect determines the action and prevents a judgment.” Yonkings v. Wilkinson (1999), 86

Ohio St.3d 225, 229; see, also R.C. 2505.02(B)(1).

       {¶7}   The trial court’s order striking the defendants’ pleadings is not a final,

appealable order. Chase Manhattan Mort. Corp. v. Frazier, 5th Dist. No. 2003-CA-31,

2004-Ohio-5523, at ¶12. Moreover, the order striking the pleadings arose out of the trial
                                                4


court’s contemporaneous adherence to its previous order denying leave to defendants to

file such pleadings. The denial of a defendant’s motion for leave to plead is also not a

final, appealable order. Mabrey v. Victory Basement Waterproofing, Inc. (1993), 92 Ohio

App.3d 8, 13 (holding that “[a]n order denying leave to plead is interlocutory and in the

absence of a statute expressly making it so is neither a final order nor appealable[.]”)

Because the trial court’s order striking Ms. Andrews’ and Mr. Potter’s pleading is not a

final, appealable order, this Court is without jurisdiction to consider the merits of the

appeal.

                                                                              Appeal dismissed.




       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                    DONNA J. CARR
                                                    FOR THE COURT



BELFANCE, P.J.
DICKINSON, J.
CONCUR
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APPEARANCES:

DEAN S. HOOVER, Attorney at Law, for Appellants.

SARAH S. GRAHAM, Attorney at Law, for Appellee.
