Reid v. Johira

2011 Ohio 5400

• Court: Ohio Court of Appeals
• Decided: October 20, 2011
• Docket: 96713
• Status: Published

Opinion

[Cite as Reid v. Johira, 2011-Ohio-5400.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96713

DR. TOBIAS R. REID, PH.D.

PLAINTIFF-APPELLANT

vs.

HISAMI JOHIRA, AGENT, ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-738290

BEFORE: E. Gallagher, J., Blackmon, P.J., and Cooney, J. RELEASED AND JOURNALIZED: October 20, 2011

FOR APPELLANT

Tobias R. Reid, Ph.D., pro se 1586 Larchmont Drive Cleveland, Ohio 44110

ATTORNEYS FOR APPELLEES,

FOR HISAMI JOHIRA, AGENT

Thomas S. Mazanec Mary Beth Klemencic John T. McLandrich Frank H. Scialdone Mazanec, Raskin & Ryder Co., L.P.A. 100 Franklin’s Row 34305 Solon Road Cleveland, Ohio 44139

FOR FOUNDERS INSURANCE COMPANY

Josh L. Schoenberger Williams & Petro, L.L.C. 338 S. High Street, 2nd Floor Columbus, Ohio 43215

FOR CITY OF CLEVELAND TRAFFIC ENGINEERING

Barbara A. Langhenry Interim Director of Law Mark R. Musson Assistant Director of Law City of Cleveland 601 Lakeside Ave., Room 106 Cleveland, Ohio 44114-1077

FOR CUYAHOGA COUNTY ENGINEER

William D. Mason Cuyahoga County Prosecutor By: John F. Manley Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

FOR UNIVERSAL CASUALTY INSURANCE

Jan L. Roller Davis & Young 1200 Fifth Third Center 600 Superior Avenue, E. Cleveland, Ohio 44114

EILEEN A. GALLAGHER, J.:

{¶ 1} We lack jurisdiction to review the common pleas court orders

that are the subject of this appeal. Therefore, the appeal is dismissed.

{¶ 2} Appellant filed a complaint in the Cuyahoga County Court of

Common Pleas on October 5, 2010, naming as defendants Hisami Johira,

Universal Casualty Insurance, the Ohio Department of Transportation, City

of Cleveland Traffic Engineering, and the Cuyahoga County Engineer. The

complaint sought damages stemming from appellant’s involvement in three

separate motor vehicle accidents.

{¶ 3} Defendant “City of Cleveland Traffic Engineering” filed a motion

to dismiss on November 17, 2010. The motion was unopposed by appellant

and granted on December 3, 2010. On December 1, 2010, appellant filed a

motion for leave to file an amended complaint. Although the docket does

not reflect that the trial court ruled on that specific motion, on December 6, 2010, appellant filed an amended complaint naming for the first time Public

Safety Director, Martin L. Flask, as a representative of City of Cleveland

Traffic Engineering (“Flask”).

{¶ 4} On December 16, 2010, the trial court conducted a case

management conference wherein the court ordered appellant to properly

serve the amended complaint in accordance with the civil rules. The court

further ordered the defendants to respond to the complaint by January 7,

2011.

{¶ 5} The record does not show that service was ever obtained on

Flask.

{¶ 6} On January 10, 2011, appellant filed a motion for summary

judgment and default judgment against Flask. Through a special

appearance by counsel, Flask opposed appellant’s motion, arguing that the

court lacked in personam jurisdiction and that he was not a party to the

action. The trial court denied appellant’s motion on January 24, 2011. The

docket does not reveal any further action involving defendant Flask.

Appellant presently appeals from the trial court’s denial of his motion for

summary judgment and default against Flask as well as the trial court’s

granting of motions to dismiss and motions for summary judgment in favor

of the remaining parties.

{¶ 7} Although the issue of jurisdiction was not raised in the briefs of the parties, we address the issue when jurisdiction appears uncertain.

Militiev v. McGee, Cuyahoga App. No. 91356, 2009-Ohio-142, at ¶6, citing

Kohout v. Church of St. Rocco Corp., Cuyahoga App. No. 88969,

2008-Ohio-1819.

{¶ 8} A final order is defined as “an order that affects a substantial

right in an action that in effect determines the action and prevents a

judgment.” R.C. 2505.02(B)(1). An order affects a substantial right if a

party is foreclosed from appropriate relief in the future if an appeal were not

allowed without delay. Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60,

63, 616 N.E.2d 181. “When more than one claim for relief is presented in an

action * * * 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.” Civ.R. 54(B). “The requirements of both

R.C. 2505.02 and Civ.R. 54(B) must be satisfied in order for an entry to

constitute a final, appealable order when multiple claims and/or multiple

parties are involved.” Daniels v. Schottenstein Stores Corp., Cuyahoga App.

No. 96447, 2011-Ohio-4959, at ¶10.

{¶ 9} The case sub judice involves multiple parties and Civ.R. 54(B)

applies as none of the orders from which appellant presently appeals contain

Civ.R. 54(B) “no just reason for delay” language. Although appellant failed

to obtain service of process upon Flask before the court ruled upon the motions from which appellant now appeals, we note that the one-year time

for obtaining service of process upon Flask has not yet expired. See Civ.R.

3(A). The trial court has not, sua sponte, dismissed appellant’s claims

against Flask pursuant to Civ.R. 4(E). Under the present circumstances, we

conclude that a final, appealable order has not been presented. See Redmond

v. Big Sandy Furniture, Inc., Lawrence App. Nos. 06CA15 and 06CA19,

2007-Ohio-1024, at ¶17; Mosley v. 131 Foods, Inc., Cuyahoga App. No. 87696,

2006-Ohio-5719 (holding that where the one-year period for service upon a

John Doe defendant had not expired, and the plaintiff has not expressly

abandoned his claims against that defendant, a judgment in favor of other

defendants that did not include the no just reason for delay language of

Civ.R. 54(B) was not final and appealable).

{¶ 10} For the reasons stated above, the trial court’s decision is not a

final, appealable order. This court is, therefore, without jurisdiction.

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

It is ordered that appellees recover from appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE PATRICIA ANN BLACKMON, P.J., and COLLEEN CONWAY COONEY, J., CONCUR