B & M Realty, Inc. v. Ferchill

2014 Ohio 4843

• Court: Ohio Court of Appeals
• Decided: October 30, 2014
• Docket: 101255
• Status: Published

Opinion

[Cite as B & M Realty, Inc. v. Ferchill, 2014-Ohio-4843.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101255

B AND M REALTY, INC.

PLAINTIFF-APPELLANT

vs.

JOHN J. FERCHILL

DEFENDANT-APPELLEE

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-785033

BEFORE: S. Gallagher, J., Celebrezze, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: October 30, 2014 ATTORNEYS FOR APPELLANT

Jeffrey M. Embleton Brendon P. Friesen Mansour, Gavin, Gerack & Manos North Point Tower 1001 Lakeside Avenue, Suite 1400 Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

David R. Mayo Michael J. Meyer Benesch, Friedlander, Coplan & Aronoff, L.L.P. 200 Public Square Suite 2300 Cleveland, OH 44114

Ronald L. House Benesch, Friedlander, Coplan & Aronoff, L.L.P. 41 South High Street Suite 2600 Columbus, OH 43215 SEAN C. GALLAGHER, J.:

{¶1} B and M Realty, Inc., appeals from the judgment of the trial court granting partial

summary judgment in favor of John Ferchill on two counts of B and M Realty’s three-count

complaint. For the following reasons, we dismiss the appeal.

{¶2} In simplistic terms, B and M Realty filed a complaint advancing three claims: breach

of contract; fraud; and unjust enrichment, arising out of Ferchill’s alleged breach of a ground

lease with 1460 LP for failure to pay rent and misrepresenting the financial condition of 1460 LP,

which directly led to a disagreement regarding unpaid rent. Both parties moved for summary

judgment. The trial court granted judgment in Ferchill’s favor upon the fraud and unjust

enrichment claims, holding that those two claims essentially restated the breach of contract claim

advanced in Count 1 of the complaint. The court determined that a genuine issue of material

fact existed with regard to the breach of contract claim, but nonetheless certified the partial

summary judgment decision pursuant to Civ.R. 54(B).

{¶3} Generally speaking, Civ.R. 54(B) only applies if there are multiple parties or

multiple claims. Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64

(1989). If the relief sought in the complaint is the same, then, for purposes of Civ.R. 54(B),

there is, essentially, only one claim. Id. In other words, for our Civ.R. 54(B) analysis, we must

determine if B and M Realty’s arguments were “distinct claims for relief in Civ.R. 54(B)

parlance.” Walker v. Firelands Community Hosp., 6th Dist. Erie No. E-06-023,

2006-Ohio-2930, ¶ 20; Ollick v. Rice, 16 Ohio App.3d 448, 476 N.E.2d 1062 (8th Dist.1984). If

the multiple claims in actuality state a single cause of action, then Civ.R. 54(B) is inapplicable. {¶4} In this case, the trial court held that all three claims stated the same claim for relief,

that Ferchill allegedly breached the terms of the undisputedly valid and enforceable contract by

failing to pay the appropriate rent derived from the financial condition of 1460 LP. In essence,

as pleaded, the fraud and unjust enrichment claims were in the alternative to the breach of

contract claim should there be a determination that the contract was invalid or otherwise

unenforceable. As recognized by the trial court, neither the validity nor enforceability of the

contract was disputed. We, therefore, agree with the trial court’s assessment. All three of B

and M Realty’s causes of action are dependent on the conduct underlying the breach of contract

claim, and therefore, this case involves a single claim for breach of contract as the complaint was

pleaded. Civ.R. 54(B) is inapplicable in light of the facts of this particular case.

{¶5} Pursuant to R.C. 2505.02, there is no final appealable order. The trial court

determined that an issue of fact existed upon the breach of contract claim, and that determination

is not immediately appealable. Even orders determining liability without damages are not final

appealable orders because those orders do not determine the action or prevent a judgment.

Dalliance Real Estate v. Covert, 11th Dist. Geauga No. 2012-G-3090, 2013-Ohio-538, ¶ 5, citing

R.C. 2505.02. In this case, the trial court denied summary judgment with regard to the breach of

contract claim in its entirety. The denial of summary judgment necessarily does not determine

the action or prevent judgment, and therefore, the order is not a final appealable one.

{¶6} We dismiss the appeal for want of a final appealable order.

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

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and MARY EILEEN KILBANE, J., CONCUR