[Cite as Shrock Prefab, L.L.C. v. Steelrite Systems USA, Inc., 2015-Ohio-4722.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



SHROCK PREFAB, LLC                                          JUDGES:
                                                            Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                                  Hon. John W. Wise, J.
                                                            Hon. Patricia A. Delaney, J.
-vs-
                                                            Case No. 15 CA 004
STEELRITE SYSTEMS USA, INC. aka
STEELRITE
                                                            OPINION
        Defendant-Appellant




CHARACTER OF PROCEEDING:                                Civil Appeal from the Court of Common
                                                        Pleas, Case No. 14 CV 072


JUDGMENT:                                               Dismissed



DATE OF JUDGMENT ENTRY:                                 November 12, 2015



APPEARANCES:

For Plaintiff-Appellee                                  For Defendant-Appellant

STEVEN J. SHROCK                                        GREGORY H.MELICK
LUCAS K. PALMER                                         JACQUELINE M. WIRTZ
CRITCHFIELD LAW FIRM                                    LUPER NEIDENTHAL & LOGAN
138 East Jackson Street                                 50 West Broad Street, Suite 1200
Millersburg, Ohio 44654                                 Columbus, Ohio 43215-3374
Holmes County, Case No. 15 CA 004                                                      2

Wise, J.

       {¶1}   Appellant Steelrite Systems USA, Inc. aka Steelrite appeals the February

23, 2015, decision of the Holmes County Common Pleas Court granting Appellee

Shrock Prefab, LLC’s Motion for Summary Judgment.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   For purposes of this Opinion, the relevant facts and procedural history are

as follows:

       {¶3}   On September 3, 2014, Appellee Shrock Prefab, LLC filed a Complaint in

the Holmes County Court of Common Pleas seeking payment in excess of $1,000,000

for goods and services it alleges it provided to Appellant Steelrite Systems USA, Inc.

aka Steelrite under a written credit agreement. Shrock avers that pursuant to the terms

of the credit agreement executed by Steelrite, Shrock agreed to provide certain goods

and services upon credit, in exchange for payment by Steelrite (the "Contract").

Appellee alleges that Appellant promised to pay all invoices within 45 days unless

otherwise stated on each invoice, to pay interest of 2% per month and any past-due

invoices, and to pay attorney fees and costs relating to the collection of any past-due

invoices. (Complaint at 9). Appellee states that pursuant to said credit application, it

provided goods and services to two Steelrite entities, for which, Appellee argues,

Appellant has failed to pay. Appellee alleges that Appellant breached the contract and

as a result, Appellee is owed $821,074.00 plus interest at the contractual rate of 24%

per annum on each respective invoice balance from the date due on each invoice, plus

attorney fees and court costs. (Complaint, 11, 13-14).

       {¶4}   On October 9, 2014, Steelrite filed its answer.
Holmes County, Case No. 15 CA 004                                                        3


       {¶5}   On December 9, 2014, Appellee Shrock filed a Motion for Summary

Judgment. The Motion for Summary Judgment was originally scheduled for a non-oral

hearing on January 5, 2015, at 4:00 p.m.

       {¶6}   On January 2, 2015, Appellant Steelrite filed a Limited Opposition to

Appellee's Motion for Summary Judgment. Therein and through the affidavit of Stephen

Colussi, affiant testified that Appellant Steelrite Systems USA, Inc. did not contract with

Appellee on April 25, 2012, and that, instead, Appellee entered into a contract with two

different entities, Steelrite Construction, USA Inc., and Steelrite Systems, Inc. (a

Canadian corporation in receivership). Appellant therein further testified that none of the

invoices attached to Appellee's Complaint as Exhibit C show the purchaser as being

Appellant Steelrite Systems USA, Inc. but, instead, show the purchasers as being

Steelrite Construction USA, Inc. and Steelrite Systems, Inc.

       {¶7}   On January 22, 2015, Appellant Steelrite filed a Motion for Leave to File

Supplemental Affidavit, along with Appellant's Notice of Filing of the Supplemental

Affidavit.

       {¶8}   On January 26, 2015, the trial court scheduled the Motion for Leave to File

Supplemental Affidavit for oral argument, along with oral argument on the Motion for

Summary Judgment, for January 29, 2015.

       {¶9}   On January 29, 2015, the trial court heard oral argument in the morning,

and Appellee was granted fourteen (14) days leave to file a memorandum in opposition

to Appellant's Motion for Leave to File Supplemental Affidavit by the trial court's Journal

Entry docketed later that day.
Holmes County, Case No. 15 CA 004                                                            4


         {¶10} On February 12, 2015, Appellee Shrock filed a Memorandum Contra

Appellant's Motion for Leave to File Affidavit.

         {¶11} On February 23, 2015, the trial court filed two contemporaneous,

simultaneous Decisions and Entries: (1) denying Appellant's Motion for Leave to File

Supplemental Affidavit, and (2) granting Appellee's Motion for Summary Judgment.

         {¶12} On March 17, 2015, Appellant Steelrite filed a Motion for Reconsideration,

arguing that the trial court ruled on the Motion for Summary Judgment prematurely,

failing to afford Appellant the time for a full and fair response, and failing to afford

Appellant any response to the allegation that its affiant had defrauded the court in bad

faith.

         {¶13} On March 17, 2015, Appellee Shrock filed its Memo Contra Appellant's

Motion for Reconsideration, alternatively arguing that Appellant was afforded a fair

opportunity to fully oppose Appellee's Motion for Summary Judgment.

         {¶14} On March 19, 2015, the trial court denied Appellant's Motion for

Reconsideration.

         {¶1}   Appellant Steelrite now appeals, assigning the following error for review:

                                   ASSIGNMENTS OF ERROR

         {¶2}   "I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO THE APPELLEE AS A GENUINE ISSUE OF MATERIAL FACT EXISTED.

         {¶3}   “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

IN VIOLATION OF CIV.R. 56 AS APPELLEE INTRODUCED NEW EVIDENCE IN ITS

MEMO CONTRA APPELLANT'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL

AFFIDAVIT.
Holmes County, Case No. 15 CA 004                                                        5


       {¶4}   “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

AS IT IMPERMISSIBLY WEIGHED THE CREDIBILITY OF THE AFFIANT IN

APPELLANT'S SUPPLEMENTAL AFFIDAVIT AGAINST THE NEWLY INTRODUCED

EVIDENCE SUBMITTED BY APPELLEE."

                                 “Summary Judgment Standard”

       {¶5}   Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides,

in pertinent part:

       “Summary judgment shall be rendered forthwith if the pleadings,
       depositions, answers to interrogatories, written admissions, affidavits,
       transcripts of evidence in the pending case, and written stipulations of fact,
       if any, timely filed in the action, show that there is no genuine issue as to
       any material fact and that the moving party is entitled to judgment as a
       matter of law. * * * A summary judgment shall not be rendered unless it
       appears from such evidence or stipulation and only therefrom, that
       reasonable minds can come to but one conclusion and that conclusion is
       adverse to the party against whom the motion for summary judgment is
       made, such party being entitled to have the evidence or stipulation
       construed most strongly in his favor.”

       {¶6}   Pursuant to the above rule, a trial court may not enter a summary

judgment if it appears a material fact is genuinely disputed.       The party moving for

summary judgment bears the initial burden of informing the trial court of the basis for its

motion and identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact. The moving party may not make a conclusory assertion

that the non-moving party has no evidence to prove its case. The moving party must

specifically point to some evidence which demonstrates the non-moving party cannot

support its claim. If the moving party satisfies this requirement, the burden shifts to the
Holmes County, Case No. 15 CA 004                                                            6


non-moving party to set forth specific facts demonstrating there is a genuine issue of

material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing

Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.

         {¶7}   It is based upon this standard that we review Appellant’s Assignments of
Error.
                                              I., II., III.

         {¶8}   Before we reach the merits of Appellants' assignments of error, we must

initially address the threshold issue of whether the judgment entry appealed is a final,

appealable order. Appellate courts have no “jurisdiction to review an order that is not

final and appealable.” Oakley v. Citizens Bank of Logan, 4th Dist. No. 04CA25, 2004–

Ohio–6824, ¶ 6; citing Section 3(B)(2), Article IV of the Ohio Constitution; General Acc.

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

Colwell, 44 Ohio St.3d 92, 540 N.E.2d 1381 (1989). Further, “[a] trial court's finding that

its judgment is a final appealable order is not binding upon this court.” In re Nichols, 4th

Dist. No. 03CA41, 2004–Ohio–2026, ¶ 6; citing Ft. Frye Teachers Assn. v. Ft. Frye

Local School Dist. Bd. of Edn., 87 Ohio App.3d 840, 843, 623 N.E.2d 232, fn. 4 (1993);

citing Pickens v. Pickens, 4th Dist. No. 459, 1992 WL 209498 (Aug. 27, 1992). This

court has “no choice but to sua sponte dismiss an appeal that is not from a final

appealable order.” Id. at ¶ 6, citing Whitaker–Merrell Co. v. Geupel Constr. Co., 29 Ohio

St.2d 184, 280 N.E.2d 922 (1972).

         {¶9}   “An order is a final order that may be reviewed, affirmed, modified, or

reversed, with or without retrial, when it is * * * [a]n order that affects a substantial right

in an action that in effect determines the action and prevents a judgment” or “[a]n order

that affects a substantial right made in a special proceeding[.]” R.C. §2505.02(B). “A
Holmes County, Case No. 15 CA 004                                                          7


final order * * * is one disposing of the whole case or some separate and distinct branch

thereof.” Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303, 306, 272 N.E.2d 127 (1971).

       {¶10} An order adjudicating “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 R.C.

2505.02 and Civ. R. 54(B) in order to be final and appealable.” Noble at syllabus.

However, when a trial court does not resolve an entire claim, regardless of whether the

order meets the requirements of Civ.R. 54(B), the order is not final and appealable. See

Jackson v. Scioto Downs, Inc., 80 Ohio App.3d 756, 758, 610 N.E.2d 613 (1992).

Further, a judgment contemplating further action by the court is not a final appealable

order. Nationwide Assur. Inc., v. Thompson, 4th Dist. No. 04CA2960, 2005–Ohio–2339,

¶ 8; citing Bell v. Horton, 142 Ohio App.3d 694, 696, 756 N.E.2d 1241 (2001).

       {¶11} The Supreme Court of Ohio has held that “ ‘[w]hen attorney fees are

requested in the original pleadings, an order that does not dispose of the attorney-fee

claim * * * is not a final, appealable order.’ ” Internatl. Bhd. of Electrical Workers, Local

Union No. 8 v. Vaughn Industries, L.L.C., 116 Ohio St.3d 335, 2007–Ohio–6439, 879

N.E.2d 187, paragraph two of the syllabus.

       {¶12} “A determination of liability without a determination of damages is not a

final appealable order because damages are part of a claim for relief, rather than a

separate claim in and of themselves.” Horner v. Toledo Hospital, 94 Ohio App.3d 282,

640 N.E.2d 857 (1993).

       {¶13} Where a prayer for relief requests a particular type of damages and the

court fails to specifically adjudicate that aspect of the damages requested, no final

appealable order exists. See Britton v. Gibbs Assoc., 4th Dist. No. 06CA34, 2008–
Holmes County, Case No. 15 CA 004                                                      8

Ohio–210, ¶ 12; In re Sites, 4th Dist. No. 05CA39, 2006–Ohio–3787, ¶ 16; see, also,

Miller v. First International Fidelity & Trust Building, Ltd., 165 Ohio App.3d 281, 2006–

Ohio–187, 846 N.E.2d 87, ¶ 36.

       {¶14} Here, Appellee’s Complaint requested attorney fees as part of their claim

for damages under their breach of contract claim.

       {¶15} The trial court's entry dated February 23, 2015, stated as follows:

       {¶16} “In the instant case, the trial court granted summary judgment in favor of

Plaintiff-Appellee Shrock Prefab, LLC and against Defendant-Appellant Steelrite

Systems, in the “amount of $821,074.00 plus interest at the contractual rate of 24% per

annum on each respective invoice balance from the due date on each respective

invoice, plus attorneys’ fees and court costs.” The Judgment Entry does not contain any

Civ.R. 54(B) language.

       {¶17} As set forth above, when a trial court does not resolve an entire claim,

regardless of whether the order meets the requirements of Civ.R. 54(B), the order is not

final and appealable. See Jackson v. Scioto Downs, Inc., supra, at 758, 610 N.E.2d

613.

       {¶18} As the trial court's order specifically raised, but failed to determine the

issue of attorney fees which were requested in Appellants' initial complaint, the
Holmes County, Case No. 15 CA 004                                                         9


judgment clearly contemplated further action by the trial court and therefore is not a final

appealable order.

       {¶19} For the foregoing reasons, we dismiss this appeal from the Court of

Common Pleas of Holmes County, Ohio, for lack of jurisdiction to consider same.


By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.




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