[Cite as Third Fed. S. & L. v. Krych, 2013-Ohio-4483.]




                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 99762


            THIRD FEDERAL SAVINGS & LOAN, ETC.
                                                   PLAINTIFF-APPELLEE

                                                     vs.

                               CAROL KRYCH, ET AL.
                                                   DEFENDANTS-APPELLANTS



                                            JUDGMENT:
                                             DISMISSED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-634597

         BEFORE:           Blackmon, J., Celebrezze, P.J., and E.A. Gallagher, J.

         RELEASED AND JOURNALIZED: October 10, 2013


ATTORNEY FOR APPELLANTS
Susan M. Gray
Susan M. Gray Attorneys and Counselors at Law
Ohio Savings Bank Building
22255 Center Ridge Road
Suite 210
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Christopher S. Casterline
Eric T. Deighton
James L. Sassano
Carlisle, McNellie, Kramer & Ulrich, Co., L.P.A.
24755 Chagrin Blvd.
Suite 200
Cleveland, Ohio 44122




PATRICIA ANN BLACKMON, J.:
       {¶1} Appellants Carol Krych and Paul Biros (collectively referred to as “the

borrowers”) appeal the trial court’s granting of partial summary judgment in favor of

appellee Third Federal Savings and Loan Association of Cleveland (“Third Federal”) and

assign the following errors for our review:

       I. The trial court erred as a matter of law and to the prejudice of appellants
       in granting appellee’s motion for summary judgment, in part.

       II. The trial court erred as a matter of law in not construing counterclaims
       as affirmative defenses.

       {¶2} Having reviewed the record and pertinent law, we dismiss the appeal for

lack of a final, appealable order. The apposite facts follow.

                                           Facts

       {¶3} On September 4, 2007, Third Federal filed a complaint of foreclosure

against the borrowers for nonpayment of their mortgage in the amount of $157,000. The

borrowers filed an answer to the complaint in which they raised affirmative defenses and

counterclaims.    The counterclaims asserted were: violation of the Truth in Lending Act

(“TILA”), violation of the Real Estate Settlement Procedures Act (“RESPA”),

improvident lending, negligence and gross negligence, unconscionability, unjust

enrichment, breach of duty of good faith and fair dealing, failure to negotiate in good

faith, and failure to mitigate damages.

       {¶4} Third Federal filed a motion for summary judgment on its foreclosure claim

and on the borrowers’ counterclaims, which the borrowers opposed. The trial court

denied Third Federal’s motion for summary judgment on its foreclosure claim and on the
borrowers’ claims under the TILA and RESPA.            The trial court, however, granted

summary judgment in Third Federal’s favor on the borrowers’ counterclaims for

improvident    lending,   negligence,   gross    negligence,   negligent   and   intentional

misrepresentation, unconscionability, unjust enrichment, breach of good faith and fair

dealing, failure to negotiate in good faith, and failure to mitigate damages.    The court

added the Civ.R. 54(B) language, “No just reason for delay.”

                                Final, Appealable Order

       {¶5} We dismiss the appeal for lack of a final appealable order. Ohio courts of

appeals have appellate jurisdiction over “final appealable orders.” Ohio Constitution,

Article IV, Section 3(B)(2). If a judgment appealed is not a final order, an appellate

court has no jurisdiction to consider it and the appeal must be dismissed. In re S.M.B.,

8th Dist. Cuyahoga No. 99035, 2013-Ohio-1801, ¶ 4.

       {¶6} An order that adjudicates one or more but fewer than all the claims or the

rights and liabilities of fewer than all the parties must meet the requirements of both R.C.

2505.02 and Civ.R. 54(B) in order to be final and appealable. Noble v. Colwell, 44 Ohio

St.3d 92, 540 N.E.2d 1381 (1989), syllabus; Chef Italiano Corp. v. Kent State Univ., 44

Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus.

       {¶7} In the instant case, the trial court added the Civ.R. 54(B) language, “No just

reason for delay.” This phrase “is not a mystical incantation which transforms a nonfinal

order into a final appealable order. Such language can, however, through Civ.R. 54(B),

transform a final order into a final appealable order.” Wisintainer v. Elcen Power Strut
Co., 67 Ohio St.3d 352, 354, 1993-Ohio-120, 617 N.E.2d 1136.       The court should only

make a Civ.R. 54(B) finding when it serves the interests of judicial economy such as

avoiding piecemeal appeals. Sullivan v. Anderson, 122 Ohio St.3d 83, 2009-Ohio-1971,

909 N.E.2d 88, ¶ 10; Wisintainer at 355.   When the interests of judicial economy are not

served, a trial court’s Civ.R. 54(B) finding is subject to reversal. Hill v. Hughes, 4th

Dist. Ross No. 06CA2917, 2007-Ohio-3885, ¶ 8.

      {¶8} We conclude that in the instant case, judicial economy will not be served by

separating the claims for review. There are certain issues to consider prior to allowing

an appeal pursuant to Civ.R. 54(B).

      An order that disposes of fewer than all of the claims in an action, and
      contains a Civ.R. 54(B) determination that there is no just reason for delay,
      is appealable if the claim or claims disposed of are entirely disposed of and
      either of the following applies. First, are the disposed of claims factually
      separate and independent from the remaining claims? An example would
      be claims that are based on different transactions or occurrences such as one
      claim for slander and another for negligence because of an automobile
      accident. Second, if the claims are not factually separate and independent,
      do the legal theories presented in the disposed of claims require proof of
      substantially different facts and/or provide for different relief from the
      remaining claims.

Walker v. Firelands Community Hosp., 6th Dist. Erie No. E-06-023, 2006-Ohio-2930, ¶

23. See also Salata v. Vallas, 159 Ohio App.3d 108, 2004-Ohio-6037, 823 N.E.2d 50

(7th Dist.) (In spite of Civ.R. 54(B) language, the judgment is not a final, appealable

order because the partial summary judgment is based on the same facts and circumstances

that exist in the claims that remain pending before the trial court); Portco, Inc. v. Eye

Specialist, Inc., 173 Ohio App.3d 108, 2007-Ohio-4403, 877 N.E.2d 709 (4th Dist.)
(court should not have added Civ.R. 54(B) language because it does not serve the

“interests of sound judicial administration” because counterclaims touch on the same

facts, legal issues, and circumstances as the pending claims).

       {¶9} Here the claims that are pending are interrelated to the claims that the court

entered summary judgment on. Part of the borrowers’ TILA counterclaim, which is

still pending, alleges that Third Federal failed to adequately determine whether the

borrowers qualified for the loan.        This same allegation exists in several of the

counterclaims that the trial court entered judgment. Additionally, some of the claims that

the trial court granted summary judgment on also alleged that Third Federal failed to

provide legally required notice regarding the terms of the note, that is also the allegation

encompassed in the pending TILA and RESPA counterclaims.

       {¶10} For these reasons, we believe that judicial economy and justice are better

served by resolving these claims together.     Therefore, we conclude that the trial court’s

judgment is not a final, appealable order, and we lack jurisdiction to conduct a review of

the appeal. Accordingly, we hereby dismiss the appeal.

       {¶11} Appeal dismissed.

       It is ordered that appellants and appellee share 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.




PATRICIA ANN BLACKMON, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
