DES Material & Supply Co., L.L.C. v. Pincus, L.L.C.

2020 Ohio 4360

• Court: Ohio Court of Appeals
• Decided: September 8, 2020
• Docket: 2020-G-0255
• Status: Published

Opinion

[Cite as DES Material & Supply Co., L.L.C. v. Pincus, L.L.C., 2020-Ohio-4360.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

DES MATERIAL & SUPPLY COMPANY, : MEMORANDUM OPINION LLC, : Plaintiff-Appellant, CASE NO. 2020-G-0255 : - vs - : PINCUS, LLC d.b.a. PINCUS CONSTRUCTION, et al., :

Defendant-Appellee. :

Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2017 M 000984.

Judgment: Appeal dismissed.

John R. Christie, Lewis Brisbois Bisgaard & Smith, 1375 East Ninth Street, Suite 2250, Cleveland, OH 44114 (For Plaintiff-Appellant).

Peter Turner, Meyers, Roman, Friedberg & Lewis, 28601 Chagrin Boulevard, #500, Cleveland, OH 44122 (For Defendant-Appellee).

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, DES Material & Supply Company, LLC, through counsel, filed a

notice of appeal from an entry from the Geauga County Court of Common Pleas.

{¶2} Appellant filed a complaint alleging breach of contract, unjust enrichment,

and accounting against appellee, Pincus, LLC dba Pincus Construction and Corporation

Service Company. Appellee filed a counterclaim for several counts and included costs and attorney’s fees. After a bench trial, the trial court issued an entry on May 6, 2020, in

which it deferred the decision as to the amount of attorney’s fees and costs to a later date.

{¶3} On June 15, 2020, appellee filed a motion to dismiss the appeal for lack of

a final appealable order. In its motion, appellee alleges that since an amount of the

attorney’s fees and costs has not been awarded, there is no final appealable order.

{¶4} Appellant filed a brief in response to the motion to dismiss.

{¶5} 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.

{¶6} 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.

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

amount of fees is not a final appealable order. Ft. Frye Teachers Assn. v. Ft. Frye Local

School Dist. Bd. Of Education, 87 Ohio App.3d 840, 843 (1993); see, also, Bell v. Bell,

11th Dist. Portage No. 2015-P-0054, 2016-Ohio-1016. Here, the trial court’s May 6, 2020

2 entry states “[i]n order to determine the amount of [appellee’s] attorney’s fees and

litigation costs to be awarded, [appellee] shall submit supporting evidence of said fees

and costs within 14 days of the date of this Judgment. [Appellee] may also include in

such attorney’s fees those fees expended in addressing the Mechanic’s Lien at issue

herein. [Appellant] shall have a period of 14 days after the date [appellee] files such

supporting evidence to submit any opposition arguments or materials. The Court will

thereafter determine if a hearing is necessary on such issue.” Until the attorney fees

amount is determined, all matters before the trial court have not been resolved.

Therefore, this judgment is not a final appealable order.

{¶1} Accordingly, appellee’s motion to dismiss is hereby granted, and this appeal

is dismissed due to lack of a final appealable order.

{¶8} Appeal dismissed.

MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.