Reed Elsevier, Inc. v. Nunn

2015 Ohio 3914

• Court: Ohio Court of Appeals
• Decided: September 25, 2015
• Docket: 26625
• Status: Published

Opinion

[Cite as Reed Elsevier, Inc. v. Nunn, 2015-Ohio-3914.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

REED ELSEVIER, INC. : : Plaintiff-Appellant : C.A. CASE NO. 26625 : v. : T.C. NO. 14-CV-6370 : MARK L. NUNN dba : (Civil appeal from LAW OFFICE OF MARK NUNN : Common Pleas Court) : Defendant-Appellee :

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OPINION

Rendered on the __25th__ day of ___September____, 2015.

MICHAEL W. SANDNER, Atty, Reg. No. 0064107, Pickrel, Schaeffer & Elbeling Co., 2700 Kettering Tower, Dayton, Ohio 45423 Attorney for Plaintiff-Appellant

MARK L. NUNN, 913 Fifth Street, Onawa, Iowa 51040 Defendant-Appellee, pro se

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DONOVAN, J.

{¶ 1} Plaintiff-appellant Reed Elsevier, Inc. (hereinafter “Reed”) appeals a

judgment of the Montgomery County Court of Common Pleas, Civil Division, granting

default judgment against defendant-appellee Mark L. Nunn, d/b/a Law Office of Mark

Nunn (hereinafter “Nunn”), on its claims for breach of contract and declaratory judgment. -2-

Reed filed a timely notice of appeal with this Court on March 20, 2015.

{¶ 2} On February 13, 2012, the parties entered into a written contract whereby

Nunn was to compensate Reed at an agreed to rate for the use of its online research

services operating out of Montgomery County, Ohio. Per the agreement, Reed provided

its online services to Nunn. Nunn, however, failed to pay the amount owed pursuant to

the contract.

{¶ 3} On November 12, 2014, Reed filed a complaint against Nunn for breach of

contract and declaratory judgment. In its complaint, Reed requested damages of

$9,389.87 with post-judgment interest, as well as costs and attorney fees. After

receiving service of the complaint on January 9, 2015, Nunn failed to file an answer. On

February 10, 2015, Reed filed a motion for default judgment against Nunn. Nunn did not

file a response to Reed’s motion. Subsequently, the trial court granted Reed’s motion

for default judgment and awarded damages in the amount of $9,389.87, but failed to

award Reed a specific monetary amount of attorney fees and costs.

{¶ 4} We note that Nunn did not file an appeal of the trial court’s grant of default

judgment. Reed, however, filed the instant appeal of the trial court’s judgment,

challenging its failure to award a specific amount attorney fees and court costs.

{¶ 5} Reed’s sole assignment of error is as follows:

{¶ 6} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO

AWARD REASONABLE ATTORNEY’S FEES, COURT COSTS, AND COLLECTION

COSTS TO PLAINTIFF-APPELLANT PURSUANT TO THE CONTRACT ENTERED

INTO BY THE PARTIES.”

{¶ 7} In its sole assignment, Reed contends that the trial court erred when it failed -3-

to award reasonable attorney fees and court costs when it granted default judgment

against Nunn. Specifically, Reed argues that in the event Nunn failed to pay the amount

due on the contract, it is liable “for all costs of collection incurred by [Reed], including ***

collection agency fees, reasonable attorney’s fees, and court costs.” 1

{¶ 8} Initially, we note that the trial court failed to include Civ.R. 54(B) language in

its decision granting Reed’s motion for default judgment. Accordingly, there is a lack of

a final appealable order, and we are left without jurisdiction to render a decision on the

merits in the instant case.

{¶ 9} Ohio law provides that appellate courts have jurisdiction to review the final

orders of inferior courts in their district. Section 3(B)(2), Article IV, Ohio Constitution; R.C.

2505 .02. If an order is not final and appealable, then we have no jurisdiction to review

the matter and must dismiss the appeal. Kilroy v. Peters, 2d Dist. Montgomery No. 24268,

2011–Ohio–3415. “In the event that this jurisdictional issue is not raised by the parties

involved with the appeal, then the appellate court must raise it sua sponte.” Chef Italiano

Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus; Whitaker–

Merrell v. Geupel Co. (1972), 29 Ohio St.2d 184, 280 N.E.2d 922. An order of a court is

a final, appealable order only if the requirements of both R.C. 2505.02 and Civ. R. 54(B),

if applicable are met. Chef Italiano Corp., 44 Ohio St.3d at 88.

{¶ 10} Under R.C. 2505.02(B)(1), an order is final order if it “affects a substantial

right in an action that in effect determines the action and prevents the judgment.” For an

order to determine the action and prevent a judgment for the party appealing, it must

1 Reed filed its appellate brief on April 13, 2015. On June 8, 2015, we issued a show cause order to Nunn informing him that he had fourteen days in which to file a responsive brief. Nunn has not filed any briefing with this Court. -4-

dispose of the whole merits of the cause or some separate and distinct branch thereof

and leave nothing for the determination of the court. State ex rel. Downs v. Panioto, 107

Ohio St.3d 347, 2006–Ohio–8, 839 N.E.2d 911, ¶ 20.

{¶ 11} Additionally, the rationale of Civ. R. 54(B) is “ ‘to make a reasonable

accommodation of the policy against piecemeal appeals with the possible injustice

created by the delay of appeals,’ as well as to insure that parties to such actions may

know when an order or decree has become final for purposes of appeal.” Pokorny v. Tilby

Dev. Co., 52 Ohio St.2d 183, 186, 370 N.E.2d 738 (1977). Absent the mandatory

language “no just reason for delay,” an order that does not dispose of all claims is not

final and appealable. Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989).

{¶ 12} In the instant case, Reed requested attorney fees and costs in their

complaint. Although the trial court awarded reasonable attorney fees and costs in its

entry granting default judgment to Reed, the entry did not contain a specific monetary

amount to be awarded. Thus, such request remains unresolved. The Supreme Court

of Ohio has held that “[w]hen attorney fees are requested in the original pleadings, an

order that does not dispose of the attorney-fee claim and does not include, pursuant to

Civ.R. 54(B), an express determination that there is no just reason for delay, is not a final,

appealable order.” Internatl. Bhd. of Electrical Workers, Local Union No. 8 v. Vaughn

Industries, L.L.C., 116 Ohio St.3d 335, 879 N.E.2d 187, 2007-Ohio-6439, paragraph two

of syllabus. The trial court’s entry granting default judgment did not refer to Civ. R. 54(B)

and did not cite any language from the rule. Therefore, because Reed’s request for

attorney fees and costs remains unresolved, and the entry did not contain the requisite

statutory language, no final appealable order exists. Accordingly, this Court has no -5-

jurisdiction to consider the instant appeal.

{¶ 13} The instant appeal is dismissed.

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FROELICH, P.J. and WELBAUM, J., concur.

Copies mailed to:

Michael W. Sandner Mark L. Nunn Hon. Steven K. Dankof