[Cite as Sandesara v. Peco II, Inc., 2011-Ohio-5927.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96532
HARSHAD SANDESARA PLAINTIFF-APPELLANT
vs.
PECO II, INC., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-720332
BEFORE: Sweeney, J., Blackmon, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: November 17, 2011 ATTORNEYS FOR APPELLANT
Bruce B. Elfvin, Esq. Barbara Kaye Besser, Esq. Stuart Torch, Esq. Elfvin & Besser 4070 Mayfield Road Cleveland, Ohio 44121-3031
Eric M. Andersen, Esq. Eduard Korsinsky, Esq. Levi & Korsinsky, L.L.P. 30 Broad Street, 15th Floor New York, NY 10004
ATTORNEYS FOR APPELLEES
James A. King, Esq. Megan E. Bailey, Esq. Eric B. Gallon, Esq. Ryan P. Sherman, Esq. Porter, Wright, Morris & Arthur 41 South High Street Columbus, Ohio 43215
Leo M. Spellacy, Jr., Esq. Porter, Wright, Morris & Arthur 925 Euclid Avenue, Suite 1700 Cleveland, Ohio 44115
J. Christian Word, Esq. Latham & Watkins, L.L.P. 555 Eleventh Street, N.W., Suite 1000 Washington, DC 20004
(Continued)
David D. Yeagley, Esq. Ulmer & Berne, L.L.P. Skylight Office Tower 1660 West Second Street, Suite 1100 Cleveland, Ohio 44113-1448
JAMES J. SWEENEY, J.:
{¶ 1} Plaintiff-appellant Harshad Sandesara (“appellant”) appeals from the trial
court’s order that found it lacked subject matter jurisdiction to hear his application for
attorneys’ fees. For the reasons that follow, we affirm.
{¶ 2} Appellant commenced this action against Peco II, Inc., Lineage Power
Holdings, Inc., Lineage Power Ohio Merger Sub, Inc., John Heindel, James Green,
Matthew P. Smith, E. Richard Hottenroth, Thomas R. Thomsen, R. Louis Schneeberger,
Gerard Moersdorf, and Richard W. Orchard (collectively referred to as the “Peco
appellees”). Appellant’s claims related to a merger agreement between Peco II, Inc. and
Lineage Power Holdings, Inc. In the amended complaint, appellant alleged claims for
breach of fiduciary duty on behalf of the shareholders and a separate derivative claim on
behalf of Peco as well as an aiding and abetting claim against Peco, Lineage, and Lineage
Merger Sub. Appellant’s demand for relief included a request that the trial court enter
judgment that, among other things, awarded “Plaintiff the costs of this action, including a
reasonable allowance for the fees and expenses of Plaintiff’s attorneys and experts * * *.”
On appeal, appellant contends that his claim for fees was a separate cause pursuant to “the substantial benefit doctrine.”
{¶ 3} The trial court issued a series of orders concerning appellant’s claims and
by order dated May 7, 2010, unequivocally stated, “the Court dismisses the Amended
Complaint with prejudice.” Appellant did not appeal from this order. Seven months
later, appellant filed an application for an award of attorneys’ fees and expenses. Peco
appellees opposed the application and the trial court found it lacked subject matter
jurisdiction to consider it. This appeal followed and presents the following assignment of
error for our review:
{¶ 4} “The Cuyahoga County Court of Common Pleas erred in entering the
February 16, 2011 order as a matter of law when it found that it did not have subject
matter jurisdiction to hear an application for Plaintiff’s attorneys’ fees.”
{¶ 5} The issue before us is not whether appellant was entitled to an award of
attorneys’ fees but rather whether the trial court had subject matter jurisdiction to consider
the application that was filed seven months after the court had dismissed the amended
complaint with prejudice and assessed court costs to appellant; and that order was not
appealed. The trial court concluded that it lacked jurisdiction and we must agree.
{¶ 6} Appellant argues that the trial court had subject matter jurisdiction because
it did not explicitly address the claim for attorneys’ fees when it dismissed the amended
complaint with prejudice. Appellant argues that the May 7, 2010 order was not final and
appealable for that reason. The Peco appellees maintain that it was a final and
appealable order. They rely on authority that provides “when a trial court unconditionally dismisses a case * * * the trial court patently and unambiguously lacks jurisdiction to
proceed[.]” State ex. rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771
N.E.2d 853, ¶22.
{¶ 7} Appellant refers us to the authority of Intl. Bhd. of Elec. Workers Local
Union No. 8 v. Vaughn Indus., L.L.C., 116 Ohio St.3d 335, 340, 2007-Ohio-6439, 879
N.E.2d 187. In Vaughn, the Union filed a complaint alleging an intentional violation of
Ohio’s Prevailing Wage Law. In its answer, the employer asserted a claim for attorneys’
fees pursuant to statutory law as well as Civil Rule 11. The trial court granted the
employer’s motion for summary judgment on the Union’s claims against it, however, the
summary judgment order did not address the employer’s outstanding claim for attorneys’
fees. Id. at ¶4. Thereafter, the employer moved the court to award it attorneys’ fees
pursuant to R.C. 4115.16(D) and/or Civ.R. 11 and R.C. 2323.51. Id. at ¶5.
{¶ 8} The Ohio Supreme Court determined that the summary judgment order did
not dispose of all claims, specifically, it did not address the employer’s pending claim for
attorneys’ fees. Because the claim for attorneys’ fees remained pending and the
summary judgment order did not contain the express Civ.R. 54(B) language, the order
was not final and appealable. Id. at ¶17. Under that factual and procedural scenario, the
Ohio Supreme Court held that “when attorney fees are requested in the original pleadings,
a party may wait until after entry of a judgment on the other claims in the case to file its
motion for attorney fees. We also hold that when 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.” Id., emphasis added.
{¶ 9} Unlike the order examined in Vaughn, the order at issue in this case did
dispose of all claims in appellant’s amended complaint because it dismissed the entire
amended complaint with prejudice. That order necessarily encompassed the request/claim
for attorneys’ fees contained in the amended complaint. Clearly that was the trial court’s
intention, otherwise, it would not have found it lacked jurisdiction to consider the later
filed application for attorneys’ fees. Because the trial court dismissed the entire amended
complaint, rather than just entered an order on plaintiff’s claims, the precedent of Vaughn
is not applicable.1 We note that as a general practice most pleadings contain a request that
the court award attorneys’ fees and cost in the demand for judgment. Vaughn does not
require the trial court to independently address every generalized request for relief
contained in a pleading in order to constitute a final and appealable order. Even
assuming, without deciding, that the claim for attorneys’ fees was a separate cause of
action, as appellant has maintained, it was nonetheless dismissed as part and parcel of the
“amended complaint.”
{¶ 10} When the trial court dismisses the entire pleading without reservation it is
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[Cite as Sandesara v. Peco II, Inc., 2011-Ohio-5927.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96532
HARSHAD SANDESARA PLAINTIFF-APPELLANT
vs.
PECO II, INC., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-720332
BEFORE: Sweeney, J., Blackmon, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: November 17, 2011 ATTORNEYS FOR APPELLANT
Bruce B. Elfvin, Esq. Barbara Kaye Besser, Esq. Stuart Torch, Esq. Elfvin & Besser 4070 Mayfield Road Cleveland, Ohio 44121-3031
Eric M. Andersen, Esq. Eduard Korsinsky, Esq. Levi & Korsinsky, L.L.P. 30 Broad Street, 15th Floor New York, NY 10004
ATTORNEYS FOR APPELLEES
James A. King, Esq. Megan E. Bailey, Esq. Eric B. Gallon, Esq. Ryan P. Sherman, Esq. Porter, Wright, Morris & Arthur 41 South High Street Columbus, Ohio 43215
Leo M. Spellacy, Jr., Esq. Porter, Wright, Morris & Arthur 925 Euclid Avenue, Suite 1700 Cleveland, Ohio 44115
J. Christian Word, Esq. Latham & Watkins, L.L.P. 555 Eleventh Street, N.W., Suite 1000 Washington, DC 20004
(Continued)
David D. Yeagley, Esq. Ulmer & Berne, L.L.P. Skylight Office Tower 1660 West Second Street, Suite 1100 Cleveland, Ohio 44113-1448
JAMES J. SWEENEY, J.:
{¶ 1} Plaintiff-appellant Harshad Sandesara (“appellant”) appeals from the trial
court’s order that found it lacked subject matter jurisdiction to hear his application for
attorneys’ fees. For the reasons that follow, we affirm.
{¶ 2} Appellant commenced this action against Peco II, Inc., Lineage Power
Holdings, Inc., Lineage Power Ohio Merger Sub, Inc., John Heindel, James Green,
Matthew P. Smith, E. Richard Hottenroth, Thomas R. Thomsen, R. Louis Schneeberger,
Gerard Moersdorf, and Richard W. Orchard (collectively referred to as the “Peco
appellees”). Appellant’s claims related to a merger agreement between Peco II, Inc. and
Lineage Power Holdings, Inc. In the amended complaint, appellant alleged claims for
breach of fiduciary duty on behalf of the shareholders and a separate derivative claim on
behalf of Peco as well as an aiding and abetting claim against Peco, Lineage, and Lineage
Merger Sub. Appellant’s demand for relief included a request that the trial court enter
judgment that, among other things, awarded “Plaintiff the costs of this action, including a
reasonable allowance for the fees and expenses of Plaintiff’s attorneys and experts * * *.”
On appeal, appellant contends that his claim for fees was a separate cause pursuant to “the substantial benefit doctrine.”
{¶ 3} The trial court issued a series of orders concerning appellant’s claims and
by order dated May 7, 2010, unequivocally stated, “the Court dismisses the Amended
Complaint with prejudice.” Appellant did not appeal from this order. Seven months
later, appellant filed an application for an award of attorneys’ fees and expenses. Peco
appellees opposed the application and the trial court found it lacked subject matter
jurisdiction to consider it. This appeal followed and presents the following assignment of
error for our review:
{¶ 4} “The Cuyahoga County Court of Common Pleas erred in entering the
February 16, 2011 order as a matter of law when it found that it did not have subject
matter jurisdiction to hear an application for Plaintiff’s attorneys’ fees.”
{¶ 5} The issue before us is not whether appellant was entitled to an award of
attorneys’ fees but rather whether the trial court had subject matter jurisdiction to consider
the application that was filed seven months after the court had dismissed the amended
complaint with prejudice and assessed court costs to appellant; and that order was not
appealed. The trial court concluded that it lacked jurisdiction and we must agree.
{¶ 6} Appellant argues that the trial court had subject matter jurisdiction because
it did not explicitly address the claim for attorneys’ fees when it dismissed the amended
complaint with prejudice. Appellant argues that the May 7, 2010 order was not final and
appealable for that reason. The Peco appellees maintain that it was a final and
appealable order. They rely on authority that provides “when a trial court unconditionally dismisses a case * * * the trial court patently and unambiguously lacks jurisdiction to
proceed[.]” State ex. rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, 771
N.E.2d 853, ¶22.
{¶ 7} Appellant refers us to the authority of Intl. Bhd. of Elec. Workers Local
Union No. 8 v. Vaughn Indus., L.L.C., 116 Ohio St.3d 335, 340, 2007-Ohio-6439, 879
N.E.2d 187. In Vaughn, the Union filed a complaint alleging an intentional violation of
Ohio’s Prevailing Wage Law. In its answer, the employer asserted a claim for attorneys’
fees pursuant to statutory law as well as Civil Rule 11. The trial court granted the
employer’s motion for summary judgment on the Union’s claims against it, however, the
summary judgment order did not address the employer’s outstanding claim for attorneys’
fees. Id. at ¶4. Thereafter, the employer moved the court to award it attorneys’ fees
pursuant to R.C. 4115.16(D) and/or Civ.R. 11 and R.C. 2323.51. Id. at ¶5.
{¶ 8} The Ohio Supreme Court determined that the summary judgment order did
not dispose of all claims, specifically, it did not address the employer’s pending claim for
attorneys’ fees. Because the claim for attorneys’ fees remained pending and the
summary judgment order did not contain the express Civ.R. 54(B) language, the order
was not final and appealable. Id. at ¶17. Under that factual and procedural scenario, the
Ohio Supreme Court held that “when attorney fees are requested in the original pleadings,
a party may wait until after entry of a judgment on the other claims in the case to file its
motion for attorney fees. We also hold that when 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.” Id., emphasis added.
{¶ 9} Unlike the order examined in Vaughn, the order at issue in this case did
dispose of all claims in appellant’s amended complaint because it dismissed the entire
amended complaint with prejudice. That order necessarily encompassed the request/claim
for attorneys’ fees contained in the amended complaint. Clearly that was the trial court’s
intention, otherwise, it would not have found it lacked jurisdiction to consider the later
filed application for attorneys’ fees. Because the trial court dismissed the entire amended
complaint, rather than just entered an order on plaintiff’s claims, the precedent of Vaughn
is not applicable.1 We note that as a general practice most pleadings contain a request that
the court award attorneys’ fees and cost in the demand for judgment. Vaughn does not
require the trial court to independently address every generalized request for relief
contained in a pleading in order to constitute a final and appealable order. Even
assuming, without deciding, that the claim for attorneys’ fees was a separate cause of
action, as appellant has maintained, it was nonetheless dismissed as part and parcel of the
“amended complaint.”
{¶ 10} When the trial court dismisses the entire pleading without reservation it is
unreasonable and counterintuitive to conclude that it has reserved jurisdiction over any
1 This order at issue in this case is also distinguishable from the judgment rendered in favor of the plaintiff following a trial in Fair Housing Advocates Assn., Inc. v. James (1996), 114 Ohio App.3d 104, 682 N.E.2d 1045, abrogated by Intl. Bhd. of Elec. Workers, Local Union No. 8 v. Vaughn Industries, L.L.C., 116 Ohio St.3d 335, 335, 2007-Ohio-6439, 879 N.E.2d 187. part of it. None of the authority cited by appellant would support a contrary conclusion
and none of the cases involve an order dismissing the entire pleading, which contained
the claim for attorneys’ fees, with prejudice. See, Firstmerit Bank, N.A. v. Moore, 183
Ohio App.3d 550, 2009-Ohio-3928, 917 N.E.2d 864, ¶14; In re Removal of Sites,
Lawrence App. No. 05CA39, 2006-Ohio-3787; Warne v. Bamfield, 161 Ohio App.3d
537, 2005-Ohio-2982, 831 N.E.2d 451; Lytle v. K&D Group, Inc., Cuyahoga App. No.
84889, 2005-Ohio-87; Cook v. Esarey (Nov. 1, 1995), Summit App. No. 17112; Dayton
Women’s Health Ctr. v. Enix (1993), 86 Ohio App.3d 777, 621 N.E.2d 1262; Fort Frye
Teachers Ass’n v. Fort Frye Local Sch. Dist. Bd. of Educ. (1993), 87 Ohio App.3d 840,
623 N.E.2d 232; Hlavin v. W.E. Plechaty Co.(1971), 28 Ohio App.2d 43, 274 N.E.2d 570.
{¶ 11} The authority pertaining to whether an attorneys’ fee claims survives when
an action is deemed moot is not really applicable to this case either. While the trial court’s
order noted that “[t]he shareholders’ approval extinguishe[d] Plaintiff’s claim under Ohio
Law * * *,” the trial court’s order went on to dismiss “the Amended Complaint with
prejudice” and this is a distinguishing factor.
{¶ 12} If a party believes that the trial court erred by dismissing a claim, that can
be addressed through a direct appeal. Appellant did not appeal the trial court’s May 7,
2010 order that was final. Consequently, we do not have the opportunity to decide in this
appeal whether the trial court erred by dismissing the claim for attorneys’ fees in the May
7, 2010 order because the issue at this point is whether the trial court lacked jurisdiction to consider it after the amended complaint was dismissed with prejudiced. Because we
find that it did, this assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
PATRICIA ANN BLACKMON, P.J., and EILEEN A. GALLAGHER, J., CONCUR