Molk v. Perram Elec., Inc.

2022 Ohio 1007

• Court: Ohio Court of Appeals
• Decided: March 28, 2022
• Docket: 2021-L-127
• Status: Published

Opinion

[Cite as Molk v. Perram Elec., Inc., 2022-Ohio-1007.]

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

MARK MOLK, CASE NO. 2021-L-127

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

PERRAM ELECTRIC, INC., Trial Court No. 2021 CV 000660 Defendant,

CITY OF MENTOR, et al.,

Defendant-Appellee.

MEMORANDUM OPINION

Decided: March 28, 2022 Judgment: Appeal dismissed

Matthew C. Rambo, Freeburg & Freeburg, LLC, 6690 Beta Drive, Suite 320, Mayfield Village, OH 44143 (For Plaintiff-Appellant).

Joseph J. Santoro, Gallagher Sharp, LLP, 1215 Superior Avenue, 7th Floor, Cleveland, OH 44114 (For Defendant-Appellee).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Mark Molk, appeals from a Lake County Court of Common Pleas

entry. We hereby dismiss this appeal for the reasons that follow.

{¶2} Plaintiff-Appellant filed a complaint and petition for writ of mandamus against

defendant-appellee, the City of Mentor, and two other defendants, Perram Electric, Inc.

and Lake County. Appellee filed a motion to dismiss each claim against it pursuant to Civ.R. 12(B)(6) as being time-barred and/or based on governmental functions for which it

is immune from liability. Appellant opposed the motion. In a November 17, 2021, the trial

court granted appellee’s motion to dismiss based on sovereign immunity pursuant to R.C.

2744.03(A) and disposed of appellant’s claims against appellee. However, the entry did

not dispose of appellant’s claims against the other defendants and did not include “there

is no just reason for delay” language. This appeal ensued.

{¶3} On December 23, 2021, appellee filed a motion to dismiss the appeal for

lack of a final appealable order. Appellant filed a brief in opposition to the motion to

dismiss on January 18, 2022.

{¶4} Initially, we must determine if there is a final order since 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 trial court’s

judgment can only be immediately reviewed by an appellate court if it constitutes a “final

order” in the action. Germ v. Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶

3. If it 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} Civ.R. 54(B) provides the following:

Case No. 2021-L-127 When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and * * * when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delay, any order * * * which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

{¶7} While R.C. 2744.02(C) grants a political subdivision an immediate right to

appeal the denial of a benefit of sovereign immunity, there is no statutory provision

granting a litigant an automatic appeal when a political subdivision is granted such

immunity. See Zoldan v. Lordstown, 11th Dist. Trumbull No. 2014-T-0002, 2014-Ohio-

3007, ¶ 9.

{¶8} Here, while the trial court granted appellee’s motion to dismiss, appellant’s

claims against the other two defendants, Perram Electric, Inc. and Lake County, are still

pending. Further, the November 17, 2021 entry on appeal does not contain any Civ.R.

54(B) language. Thus, no final order currently exists, and this court is without jurisdiction

to hear this appeal.

{¶9} Based upon the foregoing analysis, appellee’s motion to dismiss is hereby

granted, and this appeal is dismissed for lack of a final appealable order.

{¶10} Appeal dismissed.

THOMAS R. WRIGHT, P.J.,

MATT LYNCH, J.,

concur. 3

Case No. 2021-L-127