Rockefeller Oil Co., L.L.C. v. Orwell-Trumbull Pipeline Co., L.L.C

2019 Ohio 2399

Opinion

[Cite as Rockefeller Oil Co., L.L.C. v. Orwell-Trumbull Pipeline Co., L.L.C, 2019-Ohio-2399.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

ROCKEFELLER OIL COMPANY, LLC, : MEMORANDUM OPINION

Plaintiff-Appellant, : CASE NO. 2019-L-001 - vs - :

ORWELL-TRUMBULL PIPELINE CO., : LLC, : Defendant-Appellee.

Civil Appeal from the Lake County Court of Common Pleas, Case No. 2018 CV 000726.

Judgment: Appeal dismissed.

William T. Wuliger, Wuliger & Wuliger LLC, 2003 St. Clair Avenue, Cleveland, OH 44115 (For Plaintiff-Appellant).

Richard M. Bain, Meyers, Roman, Friedberg & Lewis, 28601 Chagrin Boulevard, Suite 600, Cleveland, OH 44122 (For Defendant-Appellee).

TIMOTHY P. CANNON, J.

{¶1} On January 9, 2019, appellant, Rockefeller Oil Company, LLC, through

counsel, filed a notice of appeal from a Lake County Court of Common Pleas entry.

{¶2} This appeal arises from an action filed by appellant against appellee,

Orwell-Trumbull Pipeline Co., LLC, asserting claims for breach of quasi-contract and

unjust enrichment. Appellant alleged that appellee, under the receiver’s management

and control, is profiting from the use of appellant’s natural gas lines without paying

compensation. {¶3} Appellee filed a motion to stay proceedings claiming that appellant could

only pursue claims against it by first seeking leave of the Receivership Court since its

assets were placed in receivership and subject to the jurisdiction of that court. The trial

court granted appellee’s motion to stay on October 31, 2018. Appellant then filed a motion

to amend the court’s order to either include language to allow an interlocutory appeal or

for a motion to transfer the case to the Receivership Court. The trial court denied that

motion on December 10, 2018, and the instant appeal ensued.

{¶4} On February 27, 2019, this court issued an entry indicating that we may not

have jurisdiction to consider this appeal and ordered appellant to show cause why it

should not be dismissed. In response, appellant argues that the entry on appeal is final

because if it is not immediately appealed, it would foreclose appropriate relief in the future.

Appellant also posits that it has a substantial right to use and profit from its property, and

if appellant waits to appeal the trial court order until after the receivership is terminated, it

will be precluded from a meaningful and effective remedy.

{¶5} Appellee filed a brief in opposition arguing that the order staying the matter

is not final because it is not foreclosing on appropriate future relief and is not affecting a

substantial right because appellant can petition the Receivership Court for leave to pursue

its claims against appellee.

{¶6} Under Section 3(B)(2), Article IV of the Ohio Constitution, a judgment of a

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

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

3. If a lower court’s order is not final, then an appellate court does not have jurisdiction

2 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).

{¶7} R.C. 2505.02(B) defines a “final order” and sets forth seven categories of

appealable judgment, 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.

{¶8} R.C. 2505.02(B) states:

{¶9} “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:

{¶10} “(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

{¶11} “(2) An order that affects a substantial right made in a special proceeding or

upon a summary application in an action after judgment;

{¶12} “(3) An order that vacates or sets aside a judgment or grants a new trial;

{¶13} “(4) An order that grants or denies a provisional remedy and to which both

of the following apply:

{¶14} “(a) The order in effect determines the action with respect to the provisional

remedy and prevents a judgment in the action in favor of the appealing party with respect

to the provisional remedy.

{¶15} “(b) The appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment as to all proceedings, issues, claims, and

parties in the action.

3 {¶16} “(5) An order that determines that an action may or may not be maintained

as a class action;

{¶17} “(6) An order determining the constitutionality of any changes to the Revised

Code * * *;

{¶18} “(7) An order in an appropriation proceeding * * *.”

{¶19} For R.C. 2505.02(B)(1) to apply to the appealed entry, it must affect a

substantial right, determine the action, and prevent further judgment. The order involved

in this appeal does not fit into this category. Appellant is appealing the denial of a motion

to amend an order that stayed the action until the case in the Receivership Court is

terminated. An order that stays an action until disposition of another case is not a final

and appealable order. Peterman v. Stewart, 5th Dist. Delaware No. 02CAE11055, 2003-

Ohio-696. R.C. 2505.02(B)(1) does not apply. The trial court’s order is interlocutory in

nature, and the issue is not yet ripe for review.

{¶20} For R.C. 2505.02(B)(2) to apply, the appealed entry must be made in a

special proceeding, which is defined as “an action or proceeding that is specially created

by statute and that prior to 1853 was not denoted as an action at law or a suit in equity.”

R.C. 2505.02(A)(2). This case does not involve a special proceeding, and R.C.

2505.02(B)(2) does not apply.

{¶21} Further, the appealed entry did not vacate a judgment, deal with a class

action, determine the constitutionality of Am. Sub. S.B. 281 or Sub. S.B. 80, or deal with

an appropriation proceeding. Thus, R.C. 2505.02(B)(3) and 2505.02(B)(5)-(7) have no

application.

4 {¶22} To satisfy R.C. 2505.02(B)(4), an order must grant or deny a provisional

remedy and satisfy both subsections (a) and (b) must apply. A “provisional remedy” is

defined as “a proceeding ancillary to an action, including, but not limited to, a proceeding

for a * * * discovery or privileged matter * * *.” R.C. 2505.02(A)(3). The trial court’s order

does not fall within this category either. Here, the trial court merely denied the motion to

amend or transfer the matter to the Receivership Court. Appellant has not demonstrated

that either requirement under subsection (a) or (b) of R.C. 2505.02(B)(4) has been met.

{¶23} An interlocutory order is simply not a final appealable order. Since there

was no order dismissing or terminating the case, this appeal has been prematurely filed.

Appellant will have a meaningful and effective remedy by means of an appeal once a final

judgment as to all proceedings in this case is reached. See Children’s Hosp. Med. Ctr.

v. Tomaiko, 11th Dist. Portage No. 2011-P-0103, 2011-Ohio-6838, at ¶ 5.

{¶24} Based upon the foregoing analysis, the judgment of the trial court is not a

final appealable order, and this appeal is dismissed, sua sponte, for lack of jurisdiction.

{¶25} Appeal dismissed.

MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.