Dulemba v. Leet

2023 Ohio 4603

• Court: Ohio Court of Appeals
• Decided: December 18, 2023
• Docket: 2023-A-0057
• Status: Published

Opinion

[Cite as Dulemba v. Leet, 2023-Ohio-4603.]

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

MARCIA DULEMBA, CASE NO. 2023-A-0057

Plaintiff-Appellant, Civil Appeal from the - vs - Court of Common Pleas

PAUL LEET, et al., Trial Court No. 2020 CV 00218 Defendant-Appellee.

MEMORANDUM OPINION

Decided: December 18, 2023 Judgment: Appeal Dismissed

Kyle B. Smith, Smith & Miller, Attorneys at Law, 36 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellant).

William P. Bobulsky and Michelle M. Fisher, William P. Bobulsky Co., LPA, 1612 East Prospect Road, Ashtabula, OH 44004 (For Defendant-Appellee).

MATT LYNCH, J.

{¶1} Appellant, Marcia Dulemba, through counsel, appeals an entry from the

Ashtabula County Court of Common Pleas.

{¶2} Appellant filed this action in 2020, alleging a claim of nuisance and a claim

for the creation of a prescriptive easement. Appellee, Paul Leet, answered and filed a

counterclaim consisting of four counts of nuisance. The matter was tried by a Magistrate

who issued a decision awarding appellee $5,000 for his nuisance claims and $15,000 for

punitive damages against appellant. The Magistrate also decided that appellee should be awarded attorney’s fees. Appellant filed objections to the Magistrate’s Decision. In an

entry dated September 13, 2023, the trial court overruled the objections and awarded

$5,000 in damages and $10,000 in punitive damages. The trial court further awarded

“attorney’s fees to be determined at a later hearing.” This appeal ensued.

{¶3} Appellee moved to dismiss the appeal for lack of a final appealable order.

Appellant filed no opposition.

{¶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} This court has stated that a judgment entry that “expressly orders attorney

fees but does not specify an amount of fees is not a final appealable order.” Carter-

Jones Lumber Co. v. Ponder Dev., Inc., 11th Dist. Portage No. 2023-P-0072, 2023-Ohio-

4372. In the instant matter, the trial court’s September 13, 2023 judgment entry awarded

Case No. 2023-A-0057 attorney’s fees to appellee but deferred the amount to be determined at a later hearing.

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.

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

is dismissed due to lack of jurisdiction.

{¶8} Appeal dismissed.

JOHN J. EKLUND, P.J.,

ROBERT J. PATTON, J.,

concur.

Case No. 2023-A-0057