[Cite as Piemonte v. Malatesta, 2013-Ohio-4.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
KELLY PIEMONTE AND JUDGES: BETH MCCARTY, EXECUTRICES OF Hon. Patricia A. Delaney, P.J. THE ESTATE OF CLAUDE H. HICKS Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J. Plaintiffs-Appellants Case No. 12-CA-28 -vs-
BRADLEY AND JANE MALATESTA OPINION AND WELSH HILLS WATER CO., LLC
Defendants-Appellees
CHARACTER OF PROCEEDING: Appeal from Licking County Court of Common Pleas, Case Nos. 2010CV0196 and 2010CV01844
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: January 2, 2013
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
TRACY S. COMISFORD JEFFREY B. SAMS P.O. BOX 44 10400 Blacklick Eastern Rd., Suite 140 Granville, Ohio 43023 Pickerington, Ohio 43147 Licking County, Case No. 12-CA-28 2
Hoffman, J.
{¶1} Kelly Piemonte and Beth McCarty, Executrices of the Estate of Claude H.
Hicks, appeal the February 27, 2012 Judgment Entry entered by the Licking County
Court of Common Pleas granting summary judgment in favor of defendants-appellees
Bradley and Jane Malatesta and Welsh Hills Water Co., LLC.
STATEMENT OF THE FACTS AND CASE
{¶2} The Estate of Claude H. Hicks is the successor in interest to Claude H.
Hicks, who owned real estate located in Granville Township, Ohio. In 1972, Hicks
discovered an artesian well on the property and formed Welsh Hills Water Company,
Inc. for the purpose of bottling and selling water from the artesian well. Hicks pledged
the real estate to Peoples Bank, NA in order to secure a loan enabling Welsh Hills
Water Company, Inc. to purchase equipment and to bottle and market water from the
well.
{¶3} Appellees Bradley and Jane Malatesta purchased approximately 30 acres
of neighboring land from Hicks in 2003.
{¶4} On October 16, 2006, People's Bank filed a complaint seeking to foreclose
on Claude Hicks’ mortgage to his real estate.
{¶5} On June 28, 2007, Hicks and Welsh Hills Water Company, Inc. moved the
court to appoint a receiver. On June 29, 2007, the trial court appointed a receiver over
the real estate and Welsh Hills Water Company, Inc. Martin Management Services was
appointed the receiver (“Martin”). Licking County, Case No. 12-CA-28 3
{¶6} Thereafter, Martin procured an offer from Sunrider Manufacturing, LP. to
purchase the real estate and other assets. A proposed contract with Sunrider
embodying the offer was entered into on October 23, 2007.
{¶7} On November 16, 2007, Hicks and Bradley Malatesta discussed the
receivership and the potential for an immediate sale of the real estate and other assets
to Sunrider. The Malatestas offered to purchase the real estate and suitable assets
required to bottle water for the sum of $1,342,500.00. The Malatestas prepared a
contract for the sale.
{¶8} On December 6, 2007, Hicks filed a formal objection to the proposed sale
to Sunrider. Hicks then represented his neighbors would be presenting a higher and
better offer.
{¶9} Prior to a hearing on December 10, 2007, Hicks filed for protection in the
bankruptcy court.
{¶10} The Malatestas formed Welsh Hills Water Company, LLC on January 9,
2008 for the sole purpose of assigning their interest in the contract for the purchase of
the real estate.
{¶11} The bankruptcy court approved the sale, but the Malatestas refused to
close on the sale on April 17, 2008.
{¶12} Martin then renegotiated the purchase contract with Sunrider ultimately
selling the real estate and other assets for an amount less than the Malatesta contract
and the original Sunrider offer.
{¶13} Claude Hicks passed away in March of 2009. Licking County, Case No. 12-CA-28 4
{¶14} On February 8, 2010, Martin Management Services filed a complaint
against the Malatestas as the duly appointed receiver for Welsh Hills Water Company,
Inc. asserting claims for breach of contract, tortuous interference with a contract and
seeking release to receiver of a $25,000 deposit held by a title agency.
{¶15} On August 26, 2010, Appellants sought to intervene as plaintiffs in the
Martin Management complaint as the real parties in interest. The trial court granted the
Malatestas and Martin Management's motion to strike Appellant's pleadings.
{¶16} On December 2, 2010, Appellants Kelly Piemonte and Beth McCarty, as
the Executrices of the Estate of Claude H. Hicks filed a complaint against Bradley and
Jane Malatesta and Welsh Hills Water Company, LLC alleging breach of contract and
seeking declaratory judgment.
{¶17} Via Judgment Entry of April 15, 2011, the trial court consolidated the
cases.
{¶18} The parties filed cross motions for summary judgment. On February 27,
2012, the trial court granted summary judgment to the Malatestas and Welsh Hills
Water Company, LLC on Appellants’ claims for breach of contract, but denied summary
judgment on Martin Management's claim for tortious interference with a contract, finding
genuine issues of material fact remained.
{¶19} Appellants now appeal, assigning as error:
{¶20} “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, GRANTING
SUMMARY JUDGMENT TO THE DEFENDANTS. Licking County, Case No. 12-CA-28 5
{¶21} “II. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN GRANTING
SUMMARY JUDGMENT TO THE INDIVIDUAL DEFENDANTS ON THE ISSUE OF
THEIR PERSONAL LIABILITY.”
{¶22} Initially, we must address whether the trial court's February 27, 2012
Judgment Entry is a final appealable order. We conclude it is not.
{¶23} If an order is not final and appealable, then we have no jurisdiction to
review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44
Ohio St.3d 17, 20, 540 N.E.2d 266, (1989). In the event the parties to the appeal do not
raise this jurisdictional issue, we may raise it sua sponte. See Chef Italiano Corp. v.
Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64, (1989); Whitaker–Merrell v. Carl M.
Geupel Const. Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922, (1972).
{¶24} An appellate court has jurisdiction to review and affirm, modify, or reverse
judgments or final orders of the trial courts within its district. See Section 3(B)(2), Article
IV, Ohio Constitution; see also R.C. § 2505.02 and Fertec, LLC v. BBC & M
Engineering, Inc., 10th Dist. No. 08AP–998, 2009–Ohio–5246. If an order is not final
and appealable, then we have no jurisdiction to review the matter and must dismiss it.
See Gen. Acc. Ins. Co., supra at 20.
{¶25} To be final and appealable, an order must comply with R.C. 2505.02 and
Civ.R. 54(B), if applicable.
{¶26} R.C. § 2505.02(B) provides, in pertinent part:
{¶27} “(B) An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following: Licking County, Case No. 12-CA-28 6
{¶28} “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶29} “(2) An order that affects a substantial right made in a special proceeding
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Piemonte v. Malatesta, 2013-Ohio-4.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
KELLY PIEMONTE AND JUDGES: BETH MCCARTY, EXECUTRICES OF Hon. Patricia A. Delaney, P.J. THE ESTATE OF CLAUDE H. HICKS Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J. Plaintiffs-Appellants Case No. 12-CA-28 -vs-
BRADLEY AND JANE MALATESTA OPINION AND WELSH HILLS WATER CO., LLC
Defendants-Appellees
CHARACTER OF PROCEEDING: Appeal from Licking County Court of Common Pleas, Case Nos. 2010CV0196 and 2010CV01844
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: January 2, 2013
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
TRACY S. COMISFORD JEFFREY B. SAMS P.O. BOX 44 10400 Blacklick Eastern Rd., Suite 140 Granville, Ohio 43023 Pickerington, Ohio 43147 Licking County, Case No. 12-CA-28 2
Hoffman, J.
{¶1} Kelly Piemonte and Beth McCarty, Executrices of the Estate of Claude H.
Hicks, appeal the February 27, 2012 Judgment Entry entered by the Licking County
Court of Common Pleas granting summary judgment in favor of defendants-appellees
Bradley and Jane Malatesta and Welsh Hills Water Co., LLC.
STATEMENT OF THE FACTS AND CASE
{¶2} The Estate of Claude H. Hicks is the successor in interest to Claude H.
Hicks, who owned real estate located in Granville Township, Ohio. In 1972, Hicks
discovered an artesian well on the property and formed Welsh Hills Water Company,
Inc. for the purpose of bottling and selling water from the artesian well. Hicks pledged
the real estate to Peoples Bank, NA in order to secure a loan enabling Welsh Hills
Water Company, Inc. to purchase equipment and to bottle and market water from the
well.
{¶3} Appellees Bradley and Jane Malatesta purchased approximately 30 acres
of neighboring land from Hicks in 2003.
{¶4} On October 16, 2006, People's Bank filed a complaint seeking to foreclose
on Claude Hicks’ mortgage to his real estate.
{¶5} On June 28, 2007, Hicks and Welsh Hills Water Company, Inc. moved the
court to appoint a receiver. On June 29, 2007, the trial court appointed a receiver over
the real estate and Welsh Hills Water Company, Inc. Martin Management Services was
appointed the receiver (“Martin”). Licking County, Case No. 12-CA-28 3
{¶6} Thereafter, Martin procured an offer from Sunrider Manufacturing, LP. to
purchase the real estate and other assets. A proposed contract with Sunrider
embodying the offer was entered into on October 23, 2007.
{¶7} On November 16, 2007, Hicks and Bradley Malatesta discussed the
receivership and the potential for an immediate sale of the real estate and other assets
to Sunrider. The Malatestas offered to purchase the real estate and suitable assets
required to bottle water for the sum of $1,342,500.00. The Malatestas prepared a
contract for the sale.
{¶8} On December 6, 2007, Hicks filed a formal objection to the proposed sale
to Sunrider. Hicks then represented his neighbors would be presenting a higher and
better offer.
{¶9} Prior to a hearing on December 10, 2007, Hicks filed for protection in the
bankruptcy court.
{¶10} The Malatestas formed Welsh Hills Water Company, LLC on January 9,
2008 for the sole purpose of assigning their interest in the contract for the purchase of
the real estate.
{¶11} The bankruptcy court approved the sale, but the Malatestas refused to
close on the sale on April 17, 2008.
{¶12} Martin then renegotiated the purchase contract with Sunrider ultimately
selling the real estate and other assets for an amount less than the Malatesta contract
and the original Sunrider offer.
{¶13} Claude Hicks passed away in March of 2009. Licking County, Case No. 12-CA-28 4
{¶14} On February 8, 2010, Martin Management Services filed a complaint
against the Malatestas as the duly appointed receiver for Welsh Hills Water Company,
Inc. asserting claims for breach of contract, tortuous interference with a contract and
seeking release to receiver of a $25,000 deposit held by a title agency.
{¶15} On August 26, 2010, Appellants sought to intervene as plaintiffs in the
Martin Management complaint as the real parties in interest. The trial court granted the
Malatestas and Martin Management's motion to strike Appellant's pleadings.
{¶16} On December 2, 2010, Appellants Kelly Piemonte and Beth McCarty, as
the Executrices of the Estate of Claude H. Hicks filed a complaint against Bradley and
Jane Malatesta and Welsh Hills Water Company, LLC alleging breach of contract and
seeking declaratory judgment.
{¶17} Via Judgment Entry of April 15, 2011, the trial court consolidated the
cases.
{¶18} The parties filed cross motions for summary judgment. On February 27,
2012, the trial court granted summary judgment to the Malatestas and Welsh Hills
Water Company, LLC on Appellants’ claims for breach of contract, but denied summary
judgment on Martin Management's claim for tortious interference with a contract, finding
genuine issues of material fact remained.
{¶19} Appellants now appeal, assigning as error:
{¶20} “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, GRANTING
SUMMARY JUDGMENT TO THE DEFENDANTS. Licking County, Case No. 12-CA-28 5
{¶21} “II. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN GRANTING
SUMMARY JUDGMENT TO THE INDIVIDUAL DEFENDANTS ON THE ISSUE OF
THEIR PERSONAL LIABILITY.”
{¶22} Initially, we must address whether the trial court's February 27, 2012
Judgment Entry is a final appealable order. We conclude it is not.
{¶23} If an order is not final and appealable, then we have no jurisdiction to
review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44
Ohio St.3d 17, 20, 540 N.E.2d 266, (1989). In the event the parties to the appeal do not
raise this jurisdictional issue, we may raise it sua sponte. See Chef Italiano Corp. v.
Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64, (1989); Whitaker–Merrell v. Carl M.
Geupel Const. Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922, (1972).
{¶24} An appellate court has jurisdiction to review and affirm, modify, or reverse
judgments or final orders of the trial courts within its district. See Section 3(B)(2), Article
IV, Ohio Constitution; see also R.C. § 2505.02 and Fertec, LLC v. BBC & M
Engineering, Inc., 10th Dist. No. 08AP–998, 2009–Ohio–5246. If an order is not final
and appealable, then we have no jurisdiction to review the matter and must dismiss it.
See Gen. Acc. Ins. Co., supra at 20.
{¶25} To be final and appealable, an order must comply with R.C. 2505.02 and
Civ.R. 54(B), if applicable.
{¶26} R.C. § 2505.02(B) provides, in pertinent part:
{¶27} “(B) An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following: Licking County, Case No. 12-CA-28 6
{¶28} “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶29} “(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment.”
{¶30} Civ.R. 54(B) provides:
{¶31} “When more than one claim for relief is presented in an action whether as
a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the
same or separate transactions, or 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 or other form of decision,
however designated, 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.”
{¶32} Therefore, to qualify as final and appealable, the trial court's order must
satisfy the requirements of R.C. § 2505.02, and if the action involves multiple claims
and/or multiple parties and the order does not enter a judgment on all the claims and/or
as to all parties; as is the case here, the order must also satisfy Civ. R. 54(B) by
including express language that “there is no just reason for delay.” Internatl. Bhd. of
Electrical Workers, Local Union No. 8 v. Vaughn Indus., L.L.C., 116 Ohio St.3d 335,
2007–Ohio–6439, 879 N.E.2d 187, ¶ 7, citing State ex rel. Scruggs v. Sadler, 97 Ohio Licking County, Case No. 12-CA-28 7
St.3d 78, 2002–Ohio–5315, 776 N.E.2d 101, ¶ 5–7. We note, “the mere incantation of
the required language does not turn an otherwise non-final order into a final appealable
order.” Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381, (1989). To be final and
appealable, the judgment entry must also comply with R.C. 2505.02. Id.
{¶33} As stated above, on April 15, 2011, the trial court consolidated the cases
filed against the Malatestas and Welsh Hills Water Company, LLC by Martin
Management and the Estate of Claude Hicks. Via Judgment Entry of February 27,
2012, the trial court granted summary judgment in favor of the defendants (the
Malatestas and Welsh Hills Water Company, LLC) as to the Appellants’ claim for
declaratory judgment. However, the trial found genuine issues of material fact remained
as to Martin Management's claim against the defendants (the Malastestas and Welsh
Hills Water Company, LLC) for tortuous interference of contract, and denied Martin
Mangement’s motion for summary judgment on that claim. Accordingly, fewer than all
of the claims of the parties have been determined. We find the February 27, 2012
Judgment Entry of the Licking County Court of Common Pleas is not a final appealable
order.
{¶34} This appeal is dismissed for lack of jurisdiction.
By: Hoffman, J.
Delaney, P.J. and
Gwin, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN Licking County, Case No. 12-CA-28 8
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
KELLY PIEMONTE AND : BETH MCCARTY, EXECUTRICES OF : THE ESTATE OF CLAUDE H. HICKS : : Plaintiffs-Appellants : : -vs- : JUDGMENT ENTRY : BRADLEY AND JANE MALATESTA : AND WELSH HILLS WATER CO., LLC : : Defendants-Appellees : Case No. 12-CA-28
For the reason stated in our accompanying Opinion, this appeal is dismissed for
lack of jurisdiction. Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN