[Cite as Altenheim v. Januszewski, 2018-Ohio-1395.]



                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 105860



                                         ALTENHEIM
                                                            PLAINTIFF-APPELLANT

                                                      vs.

                               KASHA JANUSZEWSKI
                                                            DEFENDANT-APPELLEE




                                          JUDGMENT:
                                           DISMISSED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-15-848001

          BEFORE: E.T. Gallagher, P.J., Celebrezze, J., and Jones, J.

          RELEASED AND JOURNALIZED: April 12, 2018
                                                      -i-
ATTORNEYS FOR APPELLANT

W. Cory Phillips
Joseph F. Petros, III
Rolf Goffman Martin Lang L.L.P.
30100 Chagrin Blvd., Suite 350
Cleveland, Ohio 44124


ATTORNEY FOR APPELLEE

Joseph T. Burke
Polito Rodstrom & Burke L.L.P.
21300 Lorain Road
Fairview Park, Ohio 44126
EILEEN T. GALLAGHER, P.J.:

       {¶1} Plaintiff-appellant Altenheim (“Altenheim”) appeals from the order of the

trial court granting summary judgment to Kasha Januszewski (“Januszewski”) on

Altenheim’s claims seeking $24,335 for breach of contract and other claims, in

connection with decedent James Stokowski’s (“Stokowski”) admission and care.

Altenheim assigns the following errors for our review:

       I. The trial court erred in granting [Januszewski’s] motion for summary
       judgment.

       II. The trial court erred in denying [Altenheim’s] motion for summary
       judgment.

       III. The trial court erred in failing to rule on [Altenheim’s] motion for
       leave to amend its complaint.

       IV. The trial court erred in failing to grant [Altenheim’s] motion to compel
       and failing to rule on [Altenheim’s] associated request for expenses and
       attorney’s fees for summary judgment.

       V. The trial court erred in failing to rule on [Altenheim’s] request for
       expenses and attorney’s fees in connection with responding to
       [Januszewski’s] baseless motion for sanctions.

       VI. The trial court erred in failing to rule on [Altenheim’s] motion to

       supplement pursuant to Civ.R. 56(E).

       {¶2} Having reviewed the record and pertinent law, we dismiss this case for lack

of a final appealable order.

       {¶3}    On July 8, 2015, Altenheim filed a four-claim complaint against

Januszewski, alleging that her late father, Stokowski, incurred expenses during his 2014

stay at Altenheim. Altenheim alleged that Januszewski signed Stokowski’s admission
agreement as his legal representative and attorney-in- fact and that she breached the terms

of the admission agreement requiring her to pay for Stokowski’s care “using Stokowski’s

resources” and to “cooperate in obtaining Medicaid * * * for Stokowski.” Altenheim

also set forth claims against Januszewski for promissory estoppel, personal liability as

power of attorney under R.C. 1337.092(B), and fraudulent transfer of Stokowski’s assets.

      {¶4} Januszewski denied liability and asserted that Stokowski was “fully able to

sign on his own behalf” but Altenheim insisted that Januszewski sign the admission

agreement as his attorney-in-fact for insurance purposes and indicated that she would not

be liable for his care. She asserted counterclaims for breach of contract, promissory

estoppel, violations of the Consumer Sales Practices Act (“CSPA”), abuse of process,

negligent misrepresentation, and fraud.

      {¶5} Januszewski filed a motion for summary judgment on July 22, 2016, and

Altenheim filed a cross-motion for summary judgment on December 30, 2016.

      {¶6} On May 3, 2017, the trial court issued the following journal entry:

      The court hereby denies plaintiff’s motion for summary judgment and

      grants defendant’s motion for summary judgment. Plaintiff failed to show

      that defendant had any duty to pay decedent’s debt to plaintiff. Pursuant to

      the plaintiff’s admission agreement, Defendant, as decedent’s legal

      representative and attorney-in-fact, is not personally liable for the

      decedent’s debts as decedent was not declared mentally incapable of

      meeting his financial obligations to plaintiff.    Accordingly, defendant’s
       motion for summary judgment is granted and this case is hereby dismissed

       with prejudice.

       {¶7} After Altenheim filed its notice of appeal, this court asked the parties to

brief the issue of appellate jurisdiction. Januszewski maintains that this court is without

jurisdiction because her counterclaims have not been adjudicated and the trial court’s

order does not assert that there is no just reason for delay. Altenheim argues that

Januszewski cannot challenge the court’s failure to resolve the counterclaims because she

did not cross-appeal the trial court’s ruling. We conclude that the May 3, 2017 order is

not a final appealable order and we are without jurisdiction over this appeal.

       {¶8} This court may entertain only those appeals from final judgments or orders.

Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989); Section 3(B)(2), Article

IV of the Ohio Constitution. If a trial court’s order is not final, then an appellate court

has no jurisdiction to review the matter, and the matter must be dismissed. Gen. Acc.

Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989); Assn. of

Cleveland Firefighters, # 93 v. Campbell, 8th Dist. Cuyahoga No. 84148,

2005-Ohio-1841, ¶ 6. Moreover, this court has a duty to examine, sua sponte, potential

deficiencies in jurisdiction. See, e.g., Scheel v. Rock Ohio Caesars Cleveland, L.L.C.,

8th Dist. Cuyahoga No. 105037, 2017-Ohio-7174, ¶ 7, citing Arch Bay Holdings, L.L.C.

v. Goler, 8th Dist. Cuyahoga No. 102455, 2015-Ohio-3036, ¶ 9.

       {¶9} 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 (defining a final order) and Civ.R. 54(B) (defining a judgment) in order to be
final and appealable. Noble at syllabus; Chef Italiano Corp. v. Kent State Univ., 44 Ohio

St.3d 86, 88, 541 N.E.2d 64 (1989), syllabus.    Pursuant to Civ.R. 54(B), “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.” (Emphasis added.)

       {¶10}   However, Civ.R. 54(B) does not alter the requirement that an order must

be final before the no just reason for delay language renders it appealable. Gen. Acc. Ins.

Co. at 21, citing Douthitt v. Garrison, 3 Ohio App.3d 254, 255, 444 N.E.2d 1068 (9th

Dist.1981). Therefore, a partial final order is not appealable pursuant to Civ. R. 54(B) if

pending unresolved counterclaims touch upon the very same facts, legal issues and

circumstances as the original claim. Portco, Inc. v. Eye Specialists, Inc., 173 Ohio

App.3d 108, 2007-Ohio-4403, 877 N.E.2d 709, ¶ 10 (4th Dist.). Accord Salata v. Vallas,

159 Ohio App.3d 108, 2004-Ohio-6037, 823 N.E.2d 50, ¶ 10 (7th Dist.) (adjudicated

claim that has a common body of interest with an unadjudicated claim is not final and

appealable even with Civ.R. 54(B) language); Ollick v. Rice, 16 Ohio App.3d 448, 452,

476 N.E.2d 1062 (8th Dist.1984); Pesta v. Parma, 8th Dist. Cuyahoga No. 92363,

2009-Ohio-3060, ¶ 13.

       {¶11} In this matter, the trial court awarded Januszewski summary judgment on

the claims of Altenheim’s complaint but the court did not dispose of any of Januszewski’s

counterclaims for relief. It is therefore not final. Scheel at ¶ 21; Myocare Nursing

Home, Inc. v. Hohmann, 8th Dist. Cuyahoga No. 104290, 2017-Ohio-186, ¶ 17; Demsey

v. Sheehe, 8th Dist. Cuyahoga No. 100693, 2014-Ohio-2409, ¶ 9-14; Bericic v. Gibson,

8th Dist. Cuyahoga No. 83387, 2004-Ohio-1458, ¶ 8; Mayfield v. Flagg, 8th Dist.
Cuyahoga No. 97637, 2012-Ohio-1957, ¶ 3. We additionally note that the trial court’s

order did not certify that there is not just reason for delay under Civ.R. 54(B). However,

because the unresolved counterclaims touch on the same facts, legal issues, and

circumstances as the claims presented on appeal, the simple addition of this language to

the trial court’s May 3, 2017 journal entry would not be sufficient to render that order

final and appealable. Portco; Pesta; Third Fed. S. & L. v. Krych, 8th Dist. Cuyahoga No.

99762, 2013-Ohio-4483, ¶ 8-10.

      {¶12}       Accordingly,   we    find   that   the   trial   court’s   order   granting

Januszewski’smotion for summary judgment is not a final and appealable order.

      {¶13} Appeal is dismissed.

      It is ordered that appellee recover of appellant costs herein taxed.

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

the Rules of Appellate Procedure.




EILEEN T. GALLAGHER, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J. CONCUR
