[Cite as Third Wing, Inc. v. Columbia Cas. Co., 2011-Ohio-4827.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                   No. 96450




                                 THIRD WING, INC.
                                                           PLAINTIFF-APPELLANT/
                                                           CROSS-APPELLEE

                                                    vs.

                COLUMBIA CASUALTY COMPANY
                                                           DEFENDANT-APPELLEE/
                                                           CROSS-APPELLANT




                                          JUDGMENT:
                                          DISMISSED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                 Case No. CV-688223

        BEFORE:           Keough, J., Boyle, P.J., and Rocco, J.
     RELEASED AND JOURNALIZED: September 22, 2011

ATTORNEY FOR APPELLANT/CROSS-APPELLEE

Robert P. Rutter
One Summit Office Park
Suite 650
4700 Rockside Road
Independence, OH 44131


ATTORNEYS FOR APPELLEE/CROSS-APPELLANT

Marianne K. Barsoum Stockett
Martin T. Galvin
Reminger Co., LPA
1400 Midland Building
101 Prospect Avenue, West
Cleveland, OH 44115




KATHLEEN ANN KEOUGH, J.:

     {¶ 1} Plaintiff-appellant/cross-appellee,   Third   Wing,   Inc.   (“Third

Wing”), and defendant-appellee/cross-appellant, Columbia Casualty Company

(“Columbia Casualty”), both appeal the trial court’s decision granting in part

and denying in part the parties’ respective motions for summary judgment

For the reasons that follow, we dismiss the appeal for lack of a final,

appealable order.
      {¶ 2} In 2009, Third Wing filed a complaint against its insurance

company, Columbia Casualty, seeking damages under its Liquor Liability

Policy for defense costs and attorney fees that Third Wing paid to its

Franchisor, Buffalo Wild Wings, International, Inc. (“BWWI”) as a result of a

lawsuit filed against both Third Wing and BWWI for a Dram Shop Act

violation that occurred at a Buffalo Wild Wings bar/restaurant.

      {¶ 3} Both parties filed motions for summary judgment.      On February

1, 2011, the trial court granted, in part, Third Wing’s motion, finding that

Columbia Casualty was obligated to reimburse Third Wing $10,240 for

expenses and settlement monies.          The trial court granted Columbia

Casualty’s motion in part, and found that it did not have a duty to reimburse

Third Wing for attorney fees paid to BWWI.

      {¶ 4} After the trial court issued its decision, Third Wing filed a motion

for attorney fees on February 16 and a motion for interest, which included a

request for prejudgment interest, on February 22. Prior to the trial court

ruling on these motions, Third Wing filed its notice of appeal on February 24

and Columbia Casualty cross-appealed.

      {¶ 5} Third Wing assigns as an error on appeal that because the trial

court did not rule on its motion for prejudgment interest and attorney fees, it

implicitly denied said motions and, thus, committed error.             Without
addressing the merits of any assigned error raised, we find that we do not

have jurisdiction to consider this matter for lack of a final, appealable order.

        {¶ 6} Final orders include those orders that affect a substantial right

and in effect determine an action and prevent a judgment.                    R.C.

2505.02(B)(1). For an order to determine the action, it must dispose of the

merits of the cause or some separate and distinct branch thereof and leave

nothing for the determination of the court. Miller v. First Internatl. Fid. &

Trust Bldg., Ltd., 113 Ohio St.3d 474, 2007-Ohio-2457, 866 N.E.2d 1059, ¶6.

A judgment that leaves issues unresolved and contemplates further action is

not a final, appealable order under R.C. 2505.02(B)(1) unless the remaining

issue is mechanical and involved only a ministerial task. State v. Threatt, 108

Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 20.

        {¶ 7} In Miller, the Ohio Supreme Court held that “[a] journalized jury

verdict is not a final appealable order when a motion for prejudgment interest

has been filed and remains pending.” Id. at syllabus.

        {¶ 8} In this case, although no jury verdict was rendered, the trial

court’s journal entry regarding summary judgment was filed on February 1,

2011.      Thereafter, Third Wing filed motions for interest, including

prejudgment      interest,   and   attorney   fees,   which   remain    pending.

Accordingly, we dismiss this appeal and cross-appeal for lack of a final,

appealable order. Miller.
      Dismissed.

      It   is   ordered    that    appellee/cross-appellant   recover    from

appellant/cross-appellee the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      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.



KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR
