[Cite as Sauer v. Semer, 2010-Ohio-1931.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




NICHOLAS M. SAUER, ET AL.,

        PLAINTIFFS-APPELLANTS,                           CASE NO. 1-09-62

        v.

CATHY SEMER, ET AL.,                                     OPINION

        DEFENDANTS-APPELLEES.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV 2008 1528

                                      Appeal Dismissed

                              Date of Decision: May 3, 2010




APPEARANCES:

        Gregory D. Wilson for Appellants

        William C. Emerick for Appellees, Semer and BGG Inv.

        Dawn M. Frick and Edward J. Dowd for Appellees,
        Yocum Realty and Brenda Caprella
Case No. 1-09-62


PRESTON, J.

       {¶1} Plaintiffs-appellants, Nicholas Sauer and Brooke Sauer (hereinafter

collectively “the Sauers”), appeal the judgment of the Allen County Court of

Common Pleas, which granted defendants-appellees’, Brenda Caprella and Yocum

Realty (aka New Yocum) (hereinafter, respectively “Caprella” and “Yocum

Realty”), motion for summary judgment. For the reasons that follow we dismiss

for lack of a final appealable order.

       {¶2} This matter stems from the purchase of property located at 500-550

Brower Road, Lima, Ohio (hereinafter “the property”), which consisted of three

acres of property, a house, and a few outbuildings. Essentially, around July 2004,

Nicholas Sauer (hereinafter “Sauer”) was looking to purchase property for the

purpose of re-locating his insurance office that was currently at 410 Brower Road.

While driving to work one day, he drove past 500-550 Brower Road and saw a

“For Sale” sign in the yard with Caprella and Yocum Realty’s name on it. Sauer

contacted Caprella and the two met at the property the next day on July 22, 2004.

During his first walk-through of the property with Caprella, Sauer noticed that the

“basement floor [looked] like it was damp or that there was water stains,” and

noticed water stains on the ceiling of the first floor. Caprella informed Sauer that

according to the disclosure form that there was “slight seepage in the basement,”

and advised him that the sump pump may not have been working. As to the water



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stains in the first floor, Caprella advised Sauer that there had been a leak in the

roof previously, but that it had been replaced within the last six months.

       {¶3} Four days later, on July 26, 2004, after only looking up the property

on the county auditor’s website for its taxes and market value, Sauer contacted

Caprella and told her that he was ready to make an offer. Caprella and Sauer met

again at the property, and, after doing another walk-through, Sauer offered to

purchase the property for $80,000, which was verbally accepted.

       {¶4} On August 3, 2004, Caprella and Sauer met again, this time at his

office, and prepared the written offer, which was contingent upon a property

inspection. Sauer also signed a Dual Agency Agreement, which indicated that

Sauer knew Caprella was representing both him and the sellers-defendants, Cathy

Semer (hereinafter “Semer”), who was also the president of BGG Investment

Holdings, Inc. (hereinafter “BGG”).

       {¶5} Sauer hired a home inspector, Don Faulkner (hereinafter

“Faulkner”), and met Faulkner at the property on the day of the inspection. Sauer

asked Faulkner to inspect the property and determine if there were any reasons

why Sauer should not purchase the property. Because of his concerns with the

damp basement, Sauer showed Faulkner the basement. Faulkner indicated that the

basement was “very damp” and thought that the problem was because the ground

outside the house needed to be re-graded since it sloped towards the house.



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      {¶6} Regardless, on August 23, 2004, Sauer closed on the property. Soon

after closing, Sauer and his wife, Brooke Sauer (hereinafter “Brooke”), began

remodeling the house on the property. On several occasions Brooke brought the

couple’s newborn daughter with her while she worked on the flooring in the

house. On or about September 22, 2004, while Brooke was working at the house,

a man named Richard Commons (hereinafter “Commons”) came to the house. He

advised Brooke that he had been a previous tenant at the property and that he

believed there was mold in the property. Brooke immediately got her newborn

baby and left the property. Sauer met with Commons shortly thereafter and again

Commons claimed that there was mold in the property, which he believed had

caused him and his son health problems to the extent that they had to break the

lease and leave the property. Sauer contacted his attorney and faxed a letter to

Caprella advising her of what he had learned and requesting that the seller buy the

property back from him. Sauer requested a response within 24 hours. Upon

receiving the fax, Caprella attempted to contact Sauer, but was only able to leave

him a voice message, and then she contacted Semer to discuss the matter with her.

Sauer never returned Caprella’s phone call.

      {¶7} Nevertheless, on January 19, 2005, the Sauers filed their original

complaint, Case No. CV2005-0053, against seller-defendant Cathy Semer. On

January 25, 2005, the Sauers amended their complaint to include Semer’s



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company, BGG, as an additional defendant. Moreover, after conducting several

depositions, on October 26, 2005, the Sauers filed their second amended complaint

and added Yocum and Caprella as defendants. The Sauers alleged claims of

fraudulent inducement, assault, intentional infliction of emotional distress, and

violations of R.C. 5302.30 and the agency agreement.

       {¶8} On September 29, 2006, Semer and BGG filed a motion for

summary judgment, and Yocum Realty and Caprella filed a separate motion for

summary judgment.       Thereafter, on February 20, 2007, the Sauers filed a

memorandum in opposition to both summary judgment motions, attaching nine

affidavits in support. On March 20, 2007, and further amended on March 29,

2007, the trial court overruled each of the defendants’ motions for summary

judgment.

       {¶9} On October 25, 2007, all defendants’ filed a joint motion in limine to

preclude the testimony of Andrew Boester (the Sauers’ expert witness), and on

October 26, 2007, the trial court granted the defendants’ motion to exclude the

testimony of Andrew Boester on the basis that “the condition of the property when

these tests were done lacks the necessary probative value as to the condition of the

subject property at the time Plaintiffs purchased the same.” (Case No. CV2005-

0053, Oct. 26, 2007 JE). Moreover, the trial court held that the testimony would

be “speculative and more prejudicial than probative.” (Id.). Subsequently, on



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October 26, 2007, the Sauers filed their notice of voluntary dismissal under Civ.R.

41(A).

         {¶10} On October 24, 2008, the Sauers re-filed their complaint, Case No.

CV2008-1528, against the same defendants as before and alleged similar claims of

contract, fraud, concealment, intentional infliction of emotional distress, and

violations of R.C. 5302.30 and the agency agreement. On May 26, 2009, the

Sauers filed a motion to transfer the original file into the newly filed case.1

         {¶11} On August 31, 2009, Yocum Realty and Caprella filed a renewed

motion for summary judgment, which the Sauers responded to on October 5, 2009,

along with filing a motion to reconsider the testimony of Andrew Boester. On

October 15, 2009, Yocum Realty and Caprella filed their reply motion in support

of their motion for summary judgment and a memorandum in opposition to the

Sauers’ motion to reconsider Boester’s testimony. Thereafter, on October 21,

2009, the trial court granted “defendant’s renewed motion for summary

judgment,” and entered judgment in “their favor on all counts in their complaint.”

(Oct. 21, 2009 JE).

         {¶12} The Sauers now appeal and raise the following four assignments of

error for our review.


1
  We note that in the original motion to transfer Case No. CV2005-0053, the Sauers asked to transfer the
wrong case number (CV2004-0025) into Case No. CV2008-1528, while the trial court granted this
incorrectly stated motion, subsequently, the trial court has issued a corrected order to transfer which
indicates the appropriate prior case number, CV2005-0053.


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Case No. 1-09-62


                       ASSIGNMENT OF ERROR NO. I

       THE COURT ERRED IN GRANTING SUMMARY
       JUDGMENT TO A PARTY WHO DIDN’T REQUEST
       SUMMARY JUDGMENT.

                      ASSIGNMENT OF ERROR NO. II

       THE COURT ERRED IN GRANTING                            SUMMARY
       JUDGMENT TO ANY DEFENDANT.

                      ASSIGNMENT OF ERROR NO. III

       THE COURT ERRED BY GRANTING ALL DEFENDANTS’
       JOINT MOTION IN LIMINE TO PRECLUDE THE
       TESTIMONY OF PLAINTIFFS’ EXPERT WITNESS,
       ANDREW BOESTER.

                      ASSIGNMENT OF ERROR NO. IV

       THE    COURT    ERRED   BY   RULING   THAT
       PLAINTIFFS/APPELLANTS WERE NOT ENTITLED TO
       PUNITIVE DAMAGES.

       {¶13} Before addressing the merits of the Sauers’ assignments of error, this

Court must first determine whether the judgment entry appealed from is a final

appealable order and is properly before this Court.

       {¶14} Here, after the Sauers re-filed their complaint in Case No. CV2008-

1538, Yocum Realty and Caprella filed a renewed motion for summary judgment;

however, defendants Semer and BGG never filed a renewed motion for summary

judgment nor did they join Yocum Realty and Caprella’s motion for summary

judgment.   The trial court ultimately found “that Defendant’s Motion is well



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taken” and “enter[ed] summary judgment in their favor on all remaining counts in

their Complaint.” (Oct. 21, 2009 JE). While the Sauers acknowledge that the trial

court’s judgment entry is unclear and problematic in their first assignment of error,

after reading the trial court’s judgment entry we find that it is not a final

appealable order, and that the matter is not properly before this Court to review.

       {¶15} It is well established under Ohio law that a judgment of a trial court

will be considered a “final appealable order” only when it can satisfy the

requirements of R.C. 2505.02 and, if applicable, the requirements of Civ.R. 54(B).

Stewart v. Midwestern Indemn. Co. (1989), 45 Ohio St.3d 124, 543 N.E.2d 1200.

Moreover, this Court must raise jurisdictional issues sua sponte. Id. See, also, In

re Murray (1990), 52 Ohio St.3d 155, 159-60, 556 N.E.2d 1169, at fn. 2;

Whitaker-Merrell Co. v. Geupel Const Co. (1972), 29 Ohio St.2d 184, 186, 280

N.E.2d 922. Because this particular case involves multiple defendants and claims,

Civ.R. 54(B) is applicable. Civ.R. 54(B) states:

       When more than one claim for relief is presented in an action
       whether as a claim, counterclaim, cross-claim, or third-party
       claim, and whether arising out of the same or separate
       transactions, or when multiple parties are involved, 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. In the absence of a
       determination that there is no just reason for delay, any order or
       other form of decision, however designated, which adjudicates
       fewer than all the parties, shall not terminate the action as to any
       of the claims or parties, and the order or other forms of decision
       is subject to revision at any time before the entry of judgment


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       adjudicating all the claims and the rights and liabilities of all the
       parties.

Pursuant to this rule, it is clear that if a trial court’s written decision fully disposes

of fewer than all of the pending claims or parties in a civil action, then the

decision will not be considered a “final judgment” unless the trial court also makes

an express finding of no just reason for delay. Smith v. Wyatt, 5th Dist. Nos.

2003CA 00233, 2005-Ohio-371, ¶10.            Absent such a finding, the decision is

interlocutory in nature, is not immediately appealable, and can be revised by the

trial court at any time prior to the final determination of the entire action. Id.

       {¶16} After reviewing the trial court’s judgment entry, we agree with the

Sauers that the entry is confusing and unclear, and ultimately find that it is not a

final appealable order. First of all, the trial court does not specifically or clearly

identify the parties it is referring to in its summary judgment entry.            At the

beginning and end of its judgment entry the trial court only refers to the parties as

“Defendant” and “Plaintiff,” despite the fact that there are multiple defendants and

plaintiffs in this case. (Oct. 21, 2009 JE). Because of this general language,

Semer and BGG claim that the trial court considered their motion for summary

judgment from the prior case (Case No. CV2005-0053), and as such, also

dismissed them from the current case (Case No. CV2008-1528). However, we

believe that we can at least find that the trial court’s order did not involve Semer

and BGG since it was only stated that, “[t]his matter came on for consideration


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upon Defendant’s Renewed Motion for Summary Judgment.”              (Oct. 21, 2009

JE)(emphasis added). While Semer and BGG claim that the trial court considered

its motion for summary judgment from the prior case (Case No. CV2005-0053),

Caprella and Yocum Realty were the only parties that submitted a renewed motion

for summary judgment in this particular case. Therefore, we disagree with Semer

and BGG and believe that the trial court was not ordering a dismissal as to BGG

and Semer.

       {¶17} Nevertheless, it is still not clear to this Court as to which

“Defendant” the trial court was referring to in its order. This is because the trial

court only referred to a singular defendant when it stated that “[t]his matter came

on for consideration upon Defendant’s Renewed Motion for Summary Judgment,

Plaintiff’s Brief in Opposition, and Defendant’s Reply,” despite the fact that there

were two defendants, Yocum Realty and Caprella, who filed a renewed motion for

summary judgment. (Oct. 21, 2009 JE)(emphasis added). Thus, we cannot find

for certain that the trial court granted summary judgment in favor of both Yocum

Realty and Caprella since the trial court only ordered summary judgment to a

singular defendant, even though there were two defendants to consider. Despite

this, even if we were to assume, based on the trial court’s discussion in its

judgment entry, that it was ordering a dismissal as to the claims against both

Yocum Realty and Caprella, since the judgment entry suggests that the trial court



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was only dealing with Yocum Realty and Caprella, and not Semer and BGG,

pursuant to 54(B), if the trial court wanted to grant summary judgment to only

selected defendants, it was required to put in the additional language rendering the

order final and appealable. See Smith, 2005-Ohio-371, at ¶10. However, the trial

court only stated that “[t]his is a final appealable Order,” and did not add the

additional language pursuant to Civ.R. 54(B).

       {¶18} We further note that upon reading the judgment entry on its face, the

entry could be read as an order for partial summary judgment. Despite stating at

the end of its judgment entry that “the Court enters summary judgment in their

favor on all remaining counts in their Complaint,” the trial court only discussed

three of the claims alleged against Caprella and Yocum Realty and never

addressed the statutory non-disclosure nor the breach of contract issues. (Oct. 21,

2009 JE). While we acknowledge that a trial court does not have to offer any

explanation for why it is granting or denying the motion for summary judgment,

after reviewing all of the parties’ pleadings regarding the renewed motion for

summary judgment and the trial court’s judgment entry, we are unable to

determine whether the trial court intended its order to be a partial dismissal or an

entire dismissal, or even as to which party (or parties) the dismissal was ordered.

       {¶19} Overall, after reviewing the trial court’s judgment entry, we find that

while the trial court may have intended to dismiss the case as to two of the



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defendants, the trial court failed to dismiss the complaint as to the other

defendants, thereby leaving the case pending and unresolved with no express

finding of “no just reason for delay.” Therefore, we find that the order appealed

from is not a final appealable order and is not properly before this Court to review.

       {¶20} Accordingly, this appeal should be dismissed for lack of jurisdiction.

                                                                  Appeal Dismissed

ROGERS and SHAW, J.J., concur.

/jlr




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