[Cite as State ex rel. Streetsboro City School Dist. Bd. of Edn. v. Streetsboro, 2019-Ohio-663.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                       PORTAGE COUNTY, OHIO


STATE ex rel. STREETSBORO CITY                             :           MEMORANDUM OPINION
SCHOOL DISTRICT BOARD OF
EDUCATION,                                                 :
                                                                       CASE NO. 2018-P-0042
                 Plaintiff-Appellee,                       :

        - vs -                                             :

CITY OF STREETSBORO,                                       :

                 Defendant-Appellant.                      :


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2015 CV
00996.

Judgment: Appeal dismissed.


Christian M. Williams, Megan D. Maurer and Samantha A. Vajskop, Pepple &
Waggoner, Ltd., Crown Centre Building, 5005 Rockside Road, Suite 260, Cleveland,
OH 44131 (For Plaintiff-Appellee).

Paul A. Janis, Streetsboro Law Director, 555 Frost Road, Streetsboro, OH 44241; and
John D. Latchney, O’Toole, McLaughlin, Dooley & Pecora Co, LPA, 5455 Detroit Road,
Sheffield, OH 44054 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, the city of Streetsboro (“the City”), appeals from the judgment of

the Portage County Court of Common Pleas, granting summary judgment in favor of

appellee, Streetsboro City School District Board of Education (“the Board”). For the
reasons discussed below, the appeal must be dismissed for lack of appellate

jurisdiction.

        {¶2}    The underlying dispute arises from a dispute between the parties relating

to the interpretation of an “Income Tax Revenue Sharing Agreement.” As a result, the

Board filed suit against the City seeking a declaratory judgment interpreting the contract

in its favor; it also filed a claim for breach of contract, seeking damages and a statutory

claim seeking damages.         The City filed an answer and a counterclaim seeking

declaratory judgment on the contract’s interpretation in its favor.

        {¶3}    The parties filed motions for summary judgment.        The Board sought

summary judgment on all claims raised in its complaint and on the City’s counterclaim.

Similarly, the City sought summary judgment on its counterclaim and the claims alleged

in the Board’s complaint.

        {¶4}    On March 22, 2018, the trial court partially granted the Board’s motion for

summary judgment finding no genuine issue of material fact on its claims and, as a

result, the Board was entitled to summary judgment as a matter of law on the issue of

liability. The court also denied the City’s motion. The judgment provided, in relevant

part:

        {¶5}    Upon review of the pleadings, motions and evidence filed herein,
                this Court concludes that there are no genuine issues of material
                fact in dispute in regards to the claims of the Plaintiff and the
                Plaintiff is entitled to judgment as a matter of law. The Court also
                concludes that there are genuine issues of material fact in dispute
                in regards to the claims of the Defendant and, as such, Defendant
                is not entitled to judgment as a matter of law.

        {¶6}    IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
                the Motion of Plaintiff, Streetsboro City School District Board of
                Education, for Summary Judgment is hereby GRANTED.




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      {¶7}   IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the
             Motion of Defendant City of Streetsboro, for Summary Judgment is
             hereby DENIED.

      {¶8}   The judgment additionally ordered that a damages hearing to be set and

included Civ.R. 54(B) language that “[t]here is no just reason for delay.” The Board filed

a brief relating to damages on May 7, 2018. And, without formal motion, the trial court

issued a nunc pro tunc judgment entry on May 8, 2018. In the entry, the court made the

following highlighted changes to the March 22, 2018 judgment:

      {¶9}   Upon review of the pleadings, motions and evidence filed herein,
             this Court concludes that there are no genuine issues of material
             fact in dispute in regards to the claims of the Plaintiff and the
             Plaintiff is entitled to judgment as a matter of law on its claims and
             on Defendant’s counterclaim. The Court also concludes since
             Plaintiff’s Motion for Summary Judgment has been granted as
             to Plaintiff’s claims on Defendant’s counterclaim, Defendant’s
             Motion for Summary Judgment must be denied.

      {¶10} IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
            the Motion of Plaintiff, Streetsboro City School District Board of
            Education, for Summary Judgment is hereby GRANTED as to
            Plaintiff’s claims and on Defendant’s counterclaim.

      {¶11} IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the
            Motion of Defendant City of Streetsboro, for Summary Judgment is
            hereby DENIED.

      {¶12} On June 6, 2018, the City filed its notice of appeal from the May 8, 2018

nunc pro tunc entry. This court subsequently issued a show-cause order regarding why

the appeal should not be dismissed for lack of a final order due to the pending damages

hearing. In response, the City argued the nunc pro tunc order complied with R.C.

2505.02(B) because the declaratory judgment action was a special proceeding and it

was seeking enforcement of a contract, which involves a substantial right. Moreover,




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even though the damages hearing was pending, the City pointed out the order included

the requisite Civ.R. 54(B) language.

       {¶13} The Board responded that, notwithstanding the accuracy of the City’s

points, the appeal should be dismissed because it was untimely. The Board argued that

the March 22, 2018 judgment was a final order and the nunc pro tunc entry, which did

not change the substantive effect of the previous order, did not toll the 30-day timeframe

for filing an appeal from the March order. Thus, the Board concluded the appeal should

be dismissed for lack of jurisdiction.

       {¶14} On July 18, 2018, this court issued judgment stating its jurisdictional

concerns were resolved and also denied the Board’s motion to dismiss. As such, the

matter proceeded to briefing. In its answer brief, the Board requested this court to

revisit its ruling on the jurisdictional issue. Upon reconsideration, we conclude this

matter must be dismissed.

       {¶15} The Board’s complaint sought declaratory judgment that its interpretation

of the agreement was correct; the Board also claimed the City breached the agreement

for failing to adhere to this interpretation and, as such, the Board asserted it was entitled

to damages. Although a declaratory judgment action is an appropriate means for a

declaration of rights and obligations under an agreement, the breach of contract claim in

this matter is simply a restatement of the basis of the declaratory action, only seeking

damages. In effect, the two counts are substantively the same as they relate to the

issue of liability. In this instance, permitting an appeal to go forward on the declaratory

action claim would be tantamount to impermissibly allowing an appeal to proceed on the

breach claim without resolution of damages. See e.g. Walburn v. Dunlap, 121 Ohio




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St.3d     373,    2009-Ohio-1221,     ¶31   (The    general     rule   is   that   an   order

determining liability but not damages is not a final, appealable order).

        {¶16} Civ.R. 54(B) certification serves to demonstrate that the trial court has

determined that its order should be appealable. Mynes v. Brooks, 124 Ohio St.3d 13,

2009-Ohio-5946, ¶9. The purpose of Civ.R. 54(B) is to reconcile the strong policy

against piecemeal litigation with the possible injustice of delayed appeals in special

situations. citing Noble v. Colwell, 44 Ohio St.3d 92, 96 (1989). A trial court’s use

of Civ .R. 54(B) certification is discretionary. Noble, supra, 97, fn. 7.

        {¶17} Permitting the underlying appeal to go forward, in light of the substantive

redundancy of the declaratory judgment action and breach claim, would unnecessarily

fragment the underlying litigation.    We therefore conclude the trial court abused its

discretion when it certified the matter pursuant to Civ.R. 54(B). The arguments upon

which the City premised its appeal may be properly raised after all issues are disposed

of in the trial court.

        {¶18} Because the issue of damages vis-à-vis the breach and statutory claims

were unresolved at the time the instant appeal was filed, and Civ. R. 54(B) was not

appropriate, this appeal must be dismissed for lack of a final appealable order.



THOMAS R. WRIGHT, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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