Kelly v. Swoish Ft Blue Ash, L.L.C.

2017 Ohio 836

• Court: Ohio Court of Appeals
• Decided: March 10, 2017
• Docket: C-160461
• Status: Published

Opinion

[Cite as Kelly v. Swoish Ft Blue Ash, L.L.C., 2017-Ohio-836.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

TIMOTHY F. KELLY, : APPEAL NO. C-160461 TRIAL NO. A-1407506 Plaintiff-Appellant, :

vs. : O P I N I O N.

SWOISH FT BLUE ASH, LLC, :

Defendant-Appellee, :

and :

CORPORATE WOODS I & II, LLC, :

JOHN DOES NOS. 1-5, :

Defendants. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Appeal Dismissed

Date of Judgment Entry on Appeal: March 10, 2017

James P. Urling and Thomas W. Condit, for Plaintiff-Appellant,

Jonathan W. Philipp, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Judge.

{¶1} Plaintiff-appellant Timothy F. Kelly appeals the trial court’s entry of

summary judgment in favor of defendant-appellee Swoish FT Blue Ash, LLC,

(“Swoish”) on his negligence claim. Because we have no jurisdiction to entertain the

appeal, we dismiss it.

{¶2} Kelly filed a complaint against Swoish, Corporate Woods I & II, LLC,

(“Corporate Woods”) and John Does Nos. 1-5, alleging that he had fallen on ice in the

parking lot of a commercial property owned or operated by Swoish and Corporate

Woods. He alleged that the Doe defendants were “persons, entities, agents, and/or

subcontractors, whose identities could not be ascertained * * *, [who were] engaged

in the business of owning/leasing/subcontracting, operating and maintaining” the

property.

{¶3} The complaint was served on Corporate Woods and Swoish, but the

Doe defendants were never identified nor served. Swoish filed an answer, but

Corporate Woods did not answer or appear in the action.

{¶4} Thereafter, Swoish sought and was granted leave to file a motion for

summary judgment. Following a hearing, the trial court granted summary judgment

in favor of Swoish.

{¶5} We cannot reach the merits of Kelly’s assignment of error because we

have no jurisdiction to hear the appeal. Our appellate jurisdiction is limited to the

review of final orders of lower courts. Ohio Constitution, Article IV, Section 3(B)(2);

Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593, ¶ 21. An

order is final and appealable only if it meets the requirements of both R.C. 2505.02

and, if applicable, Civ.R. 54(B). Chef Italiano Corp. v. Kent State Univ., 44 Ohio

2 OHIO FIRST DISTRICT COURT OF APPEALS

St.3d 86, 541 N.E.2d 64 (1989), syllabus; State ex rel. Scruggs v. Sadler, 97 Ohio

St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5. Civ.R. 54(B) applies where more

than one claim for relief is presented or multiple parties are involved, and where the

court has rendered a final judgment as to fewer than all claims or parties. Chef

Italiano at 88. An entry of judgment involving fewer than all claims or parties is not

a final, appealable order unless the court expressly determines that there is “no just

reason for delay.” Civ.R. 54(B); Jarrett v. Dayton Osteopathic Hosp., Inc., 20 Ohio

St.3d 77, 78, 486 N.E.2d 99 (1985); Scruggs at ¶ 6.

{¶6} In this case, Kelly filed the action against multiple defendants, but the

trial court’s judgment disposed of his claims against only one defendant. We

recognize that the action was never duly commenced against the Doe defendants

because they were never identified or served with the complaint. See Civ.R. 3(A);

Civ.R. 15(D); Dillard v. Nationwide Beauty School, 10th Dist. Franklin No. 90AP-

273, 1990 WL 204766, *3 (Dec. 11, 1990); Blanton v. Alley, 4th Dist. Pike No.

02CA685, 2003-Ohio-2594, ¶ 29. However, Kelly did obtain service upon Corporate

Woods, and Corporate Woods remained a party to the action at the time that

summary judgment was entered in Swoish’s favor.

{¶7} The trial court’s judgment in favor of Swoish did not dispose of Kelly’s

claims against Corporate Woods, so Civ.R. 54(B) applies to the order. Because the

trial court’s order does not include the requisite Civ.R. 54(B) certification that there

is “no just reason for delay,” the order appealed from is not a final and appealable

order. See Hadassah v. Schwartz, 1st Dist. Hamilton No. C-110699, 2012-Ohio-

3910, ¶ 10. Consequently, we are without jurisdiction to entertain the appeal, and for

that reason, the appeal is dismissed.

3 OHIO FIRST DISTRICT COURT OF APPEALS

Appeal dismissed.

CUNNINGHAM, P.J., and ZAYAS, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.