[Cite as Haynes v. Haynes, 2017-Ohio-49.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                     JUDGES:
MICHELLE HAYNES                              :       Hon. Sheila G. Farmer, P.J.
                                             :       Hon. W. Scott Gwin, J.
                        Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :       Case No. 16-CA-49
RICHARD HAYNES                               :
                                             :
                    Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                         Civil appeal from the Licking County Court
                                                 of Common Pleas, Case No. 2015 CV
                                                 00729

JUDGMENT:                                        Dismissed



DATE OF JUDGMENT ENTRY:                          January 6, 2017



APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

DARCY SHAFER                                     RICHARD HAYNES PRO SE
39 East Whittier Street                          352 National Road
Columbus, OH 43206                               Hebron, OH 43025
Licking County, Case No. 16-CA-49                                                             2

Gwin, J.,

       {¶1}   Appellant appeals the June 9, 2016 judgment entry of the Licking County

Court of Common Pleas.

                                     Facts & Procedural History

       {¶2}   Appellee Michelle Haynes, appellant Richard Haynes, and James Haynes

are tenants-in-common of the property located at 13638 National Road, Thornville, Ohio.

Each owns an undivided one-third interest in the property. On August 27, 2015, appellee

filed a complaint for partition of the property. Appellant and James filed an answer on

September 23, 2015. Appellee filed an amended complaint on October 19, 2015 and

appellant and James filed an answer to the amended complaint on October 28, 2015.

       {¶3}   On February 29, 2016, appellee filed a motion for summary judgment.

Appellant and James filed an objection on March 16, 2016. Appellant filed a reply on

March 28, 2016. On April 4, 2016, the trial court issued a memorandum of decision

granting appellee’s motion for summary judgment. The memorandum of decision ordered

counsel for appellee to submit a journal entry.

       {¶4}   The trial court issued a journal entry on June 9, 2016. The trial court found

appellee was entitled to a judgment entry of partition.          The trial court appointed a

commissioner to partition and evaluate the property and report back to the trial court. The

trial court stated that within ten (10) days after the filing of the report of the commissioner,

either appellant or appellee could file objections to the commissioner’s report. The trial

court further ordered the commissioner to return a just valuation of the property and, if the

trial court approves the commissioner’s finding and valuation, appellee and appellant

would each have ten (10) days to elect to take the property at its appraised value. Finally,
Licking County, Case No. 16-CA-49                                                              3


the trial court provided that if the parties failed to elect to buy the property at its appraised

value, a writ of partition “shall issue.”

       {¶5}    After appellant filed his notice of appeal, the commissioner filed his report

in the case. However, due to the filing of appellant’s notice of appeal, the trial court was

unable to take further action on the commissioner’s report.

       {¶6}    Appellant appeals the June 9, 2016 judgment entry of the Licking County

Court of Common Pleas and assigns the following as error:

       {¶7}    “I. PLAINTIFF HAS FAILED TO DEMONSTRATE THE ABSENCE OF

GENUINE ISSUES OF MATERIAL FACT REGARDING THE ELEMENT OF

NECESSITY.

       {¶8}    “II. PLAINTIFF HAS FAILED TO DEMONSTRATE THE ABSENCE OF

GENUINE ISSUES OF MATERIAL FACT IN THEIR REQUEST FOR SUMMARY

JUDGMENT.”

                                        Final Appealable Order

       {¶9}    As a preliminary matter, we must first determine whether the order under

review is a final, appealable order. If an order is not final and appealable, then we have

no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.

Co. of N. America, 44 Ohio St.3d 17, 540 N.E.2d 266 (1989). In the event that the parties

to the appeal do not raise this jurisdictional issue, we may raise it sua sponte. See Chef

Italiano Corp. v. Kent State University, 44 Ohio St.3d 86, 541 N.E.2d 64 (1989); Whitaker-

Merrell Co. v. Geupel Constr. Co., 29 Ohio St.2d 184, 280 N.E.2d 922 (1972).

       {¶10} To be final and appealable, an order must comply with R.C. 2505.02 and

Civ.R. 54(B), if applicable. R.C. 2502.02(B) provides the following in pertinent part:
Licking County, Case No. 16-CA-49                                                             4


              (B) An order is a final order that may be reviewed, affirmed, modified,

              or reversed, without or without retrial, when it is one of the following:

                      (1) An order that affects a substantial right in an action

                         that in effect determines the action and prevents a

                         judgment * * *

       {¶11} To qualify as final and appealable, the trial court’s order must satisfy the

requirements of R.C. 2505.02, and if the action involves multiple claims and/or multiple

parties and the order does not enter judgment on all the claims and/or as to all parties,

the order must also satisfy Civil Rule 54(B) by including express language that “there is

no just reason for delay.” Int’l. Brotherhood of Electrical Workers, Local Union No. 8 v.

Vaughn Indus., LLC, 116 Ohio St.3d 335, 2007-Ohio-6439, 879 N.E.2d 101. However,

we note that “the mere incantation of the required language does not turn an otherwise

non-final order into a final appealable order.” Noble v. Colwell, 44 Ohio St.3d 92, 540

N.E.2d 1381 (1989).

       {¶12} R.C. 5307.04 provides, “if the court of common pleas finds that the plaintiff

in an action for partition has a legal right to any part of the estate, it shall order partition

of the estate in favor of the plaintiff or all interested parties, appoint one suitable

disinterested person to be the commissioner to make the partition, and issue a writ of

partition.” A writ of partition issued under R.C. 5307.04 may be directed to the sheriff of

any of the counties in which any part of the estate lies and shall command the sheriff that,

by the oaths of the commissioner or commissioners, the sheriff shall cause to be set off

and divided to the plaintiff or each interested party, whatever part and proportion of the

estate as the court of common pleas orders. R.C. 5307.05.
Licking County, Case No. 16-CA-49                                                            5


       {¶13} It has often been held that final orders from which appeals may be had in

partition are limited to the order of partition and the order confirming the sale. Reel v.

Reel, 11th Dist. Trumbull No. 2012-T-81, 2013-Ohio-2624, Schrader v. Schrader, 4th Dist.

Hocking No. 03CA20, 2004-Ohio-4104, Gruger v. Koehler, 7th Dist. Mahoning No.

01CA16, 2001-Ohio-3165, State ex rel. Luoma v. Russo, 8th Dist. Cuyahoga No. 99844,

2013-Ohio-5033. It must also be noted that a judgment in a partition suit that adjudicates

the rights and interests of the parties, ordering and appointing a commissioner to make

partition according to the respective rights and interests of the parties, is not a final

judgment, but an interlocutory order not subject to appeal. State ex rel. Luona v. Russo,

8th Dist. Cuyahoga No. 99844, 2013-Ohio-5033; Swank v. Wilson, 80 Ohio App. 58, 74

N.E.2d 773 (5th Dist. 1947).

       {¶14} In the instant case, an order of partition as described in R.C. 5307.04 has

not occurred. In granting appellee’s motion for summary judgment, the trial court ordered

the appointment of a commissioner to partition and evaluate the property and report back

to the trial court.    The parties then had ten (10) days to file objections to the

commissioner’s report. Additionally, after the trial court determined whether it would

approve the commissioner’s findings and valuation, the parties would have ten (10) days

to elect to take the property at its appraised value. If the parties failed to elect to buy the

property at its appraised value, a writ of partition “shall issue.”

       {¶15} At the time of appellant’s notice of appeal, the trial court had not had the

opportunity to review the commissioner’s report, must less approve it.            Though the

commissioner filed his report during the pendency of this appeal, the trial court was

prevented from taking action on his report due to the pendency of this appeal. Any parties
Licking County, Case No. 16-CA-49                                                           6


aggrieved by the commissioner’s report and recommendation can still bring their

objections before the trial court, as provided in the June 9, 2016 judgment entry. The trial

court might approve or disapprove the commissioner’s report. If approved, any party

would have an election to buy the property at the appraised value prior to a writ of partition

being issued. See Hendrix v. Hendrix, 1st Dist. Warren No. 284, 1979 WL 208264 (Dec.

26, 1979).

       {¶16} At the time appellant filed his notice of appeal, the commissioner had not

made a return on the partition of the property, had not reported back to the trial court, the

trial court did not review or approve the commissioner’s report, the parties did not yet

decided whether to buy the property at its appraised value, and the writ of partition had

not yet issued. See Reel v. Reel, 11th Dist. Trumbull No. 2012-T-0081, 2013-Ohio-2624.

The trial court has determined that appellee is entitled to have the property divided by

partition, but the conditions of the partition have yet to be determined.

       {¶17} The June 9, 2016 judgment entry does not determine the action or prevent

a judgment as contemplated in R.C. 2502.02(B). Accordingly, the June 9, 2016 judgment

entry, the judgment appealed from, is not a final, appealable order. Therefore, this Court

lacks jurisdiction to address appellant’s assignments of error.
Licking County, Case No. 16-CA-49                   7


      {¶18} Accordingly, the appeal is dismissed.



By Gwin, J.,

Farmer, P.J., and

Baldwin, J., concur
