Carter-Jones Lumber Co. v. Ponder Dev., Inc.

2023 Ohio 4372

• Court: Ohio Court of Appeals
• Decided: December 4, 2023
• Docket: 2023-P-0072
• Status: Published

Opinion

[Cite as Carter-Jones Lumber Co. v. Ponder Dev., Inc., 2023-Ohio-4372.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

THE CARTER-JONES CASE NO. 2023-P-0072 LUMBER CO., et al.,

Plaintiffs-Appellees, Civil Appeal from the Court of Common Pleas - vs -

PONDER DEVELOPMENT, INC., et al., Trial Court No. 2022 CV 00867

Defendants-Appellants.

MEMORANDUM OPINION

Decided: December 4, 2023 Judgment: Appeal dismissed

Nicholas J. Horrigan and Ceasare P. Piermarini, Harpst Becker, LLC, 1559 Corporate Woods Parkway, Suite 250, Uniontown, OH 44685 (For Plaintiffs-Appellees).

Grant J. Keating, Dworken & Bernstein Co., LPA, 60 South Park Place, Painesville, OH 44077 (For Defendants-Appellants).

ROBERT J. PATTON, J.

{¶1} Appellants, Ponder Development, Inc. and Scott Neal, through counsel,

filed a notice of appeal from an entry from the Portage County Court of Common Pleas.

{¶2} Appellees, the Carter-Jones Lumber Co. and Carter Lumber of the South,

Inc., filed a complaint alleging breach of contract, account, breach of personal guarantee,

and unjust enrichment, against appellants. Appellees moved for partial summary

judgment and requested that the trial court award judgment against appellants and

schedule a hearing to determine the amount of attorney’s fees to be awarded. {¶3} In an entry dated August 30, 2023, the trial court granted appellees’ motion

for summary judgment and ordered appellees to file an “affidavit evidencing the amount

of attorney’s fees it is seeking within fourteen days” of the entry. The affidavit was filed

on September 12, 2023, seeking an award of $9,380 in attorney’s fees. This appeal

ensued on September 22, 2023.

{¶4} We must determine if there is a final order, as this court may entertain only

those appeals from final judgments. Noble v. Colwell, 44 Ohio St.3d 92, 96 (1989).

According to Section 3(B)(2), Article IV of the Ohio Constitution, a judgment of a trial court

can be immediately reviewed by an appellate court only if it constitutes a “final order” in

the action. Germ v. Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶ 3. If a

lower court’s order is not final, then an appellate court does not have 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 (1989). For a judgment to be final and appealable, it must satisfy

the requirements of R.C. 2505.02 and if applicable, Civ.R. 54(B). See Children’s Hosp.

Med. Ctr. v. Tomaiko, 11th Dist. Portage No. 2011-P-0103, 2011-Ohio-6838, ¶ 3.

{¶5} Pursuant to R.C. 2505.02(B), there are seven categories of a “final order,”

and if the judgment of the trial court satisfies any of them, it will be deemed a “final order”

and can be immediately appealed and reviewed by a court of appeals.

{¶6} An entry which expressly orders attorney fees but does not specify an

amount of fees is not a final appealable order. DES Material & Supply Co., LLC v. Pincus,

LLC, 11th Dist. Geauga No. 2020-G-0255, 2020-Ohio-4360. Here, the trial court’s August

30, 2023 entry ordered appellees to submit evidence as to the amount of attorney’s fees

within 14 days of the date of the judgment. Until the attorney fees amount is determined,

Case No. 2023-P-0072 all matters before the trial court have not been resolved. Therefore, this judgment is not

a final appealable order.

{¶1} Accordingly, this appeal is dismissed due to lack of a final appealable order.

{¶7} Appeal dismissed.

MARY JANE TRAPP, J.,

MATT LYNCH, J.,

concur.

Case No. 2023-P-0072