Strohminger v. B&W Cartage Co., Inc.

2018 Ohio 4265

Opinion

[Cite as Strohminger v. B&W Cartage Co., Inc., 2018-Ohio-4265.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

MICHAEL STROHMINGER JUDGES: Hon. W. Scott Gwin ,P.J Plaintiff – Appellant Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2017CA89 B & W CARTAGE COMPANY, INC., et al.

Defendant – Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of Common Pleas, Case No. 2017CV353R

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: October 22, 2018

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

CASSANDRA J. M. MAYER BRIAN D. SULLIVAN 525 Park Avenue West MICHAEL J. PELAGALLI Mansfield, OH 44906 Reminger Co., L.P.A. 101 Prospect Avenue West Suite 1400 Cleveland, OH 44115-1093 Richland County, Case No. 17CA89 2

Hoffman, J. {¶1} Appellant Michael Strohminger appeals the judgment entered by the

Richland County Common Pleas Court granting the motion to dismiss his action against

Appellees B&W Cartage Company, Inc. (hereinafter “B&W”) and TVM for want of

personal jurisdiction.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant filed the instant action in the Richland County Common Pleas

Court on May 5, 2017, naming four defendants: Appellee B&W, Appellee TVM, John

Doe, and Great West Casualty Company (hereinafter “Great West”). The complaint

alleged while Appellant was waiting at B&W’s warehouse to unload the trailer of his tractor

trailer semi-truck, he was struck by a semi-truck negligently operated by John Doe. The

complaint alleged John Doe was an employee/driver for Appellees at the time of the

accident, and Appellant sustained property damage and lost wages as a direct and

proximate result of John Doe’s negligence. Appellant further sought a declaration he was

entitled to coverage from his insurer, Great West, if the court determined his damages

were not covered by B&W or TVM.

{¶3} Appellees filed a motion to dismiss for want of personal jurisdiction pursuant

to Civ. R. 12(B)(2). Appellees argued pursuant to an independent contractor agreement

between Appellant and Appellees, all claims between the parties are required to be

brought in the State of Michigan, subject to arbitration. Subsequently, Great West filed a

motion for summary judgment on other grounds.

{¶4} The trial court granted Appellees’ motion to dismiss for lack of personal

jurisdiction on September 7, 2017, finding the parties are governed by a forum selection Richland County, Case No. 17CA89 3

clause requiring the matter to be filed in Michigan. On September 29, 2017, while Great

West’s motion for summary judgment remained pending, Appellant filed a notice of

voluntary dismissal of his complaint “against all Defendants listed in the Complaint,

without prejudice.”

{¶5} Appellant filed a notice of appeal from the September 7, 2017 judgment of

the court, assigning as error:

“THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT’S

MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

FINDING THE FORUM SELECTION CLAUSE CONTAINED IN THE

CONTRACTOR AND EQUIPMENT AGREEMENT TO BE ENFORCEABLE

IN THIS MATTER.”

{¶6} As a preliminary matter, we must first determine whether the order under

review is a final appealable order. 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 must raise it sua sponte. See Chef Italiano

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

{¶7} To be final and appealable, an order must comply with R.C. 2505.02 and

Civ.R. 54(B), if applicable.

{¶8} R.C. 2505.02(B) provides, in pertinent part: Richland County, Case No. 17CA89 4

{¶9} (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:

{¶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} Civ.R. 54(B) provides:

{¶13} 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.

{¶14} 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 Richland County, Case No. 17CA89 5

parties; as is the case here, the order must also satisfy Civ. R. 54(B) by including express

language “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 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.

{¶15} The entry in the instant case does not dispose of the declaratory judgment

claim against Great West, nor does it dismiss John Doe, and the claims against these

parties remained pending. Further, the entry does not include Civ. R. 54(B) language

“there is no just cause for delay.” We find the September 7, 2017 judgment appealed from

is not a final, appealable order, and we therefore do not have jurisdiction over this appeal. Richland County, Case No. 17CA89 6

As Appellant subsequently dismissed his complaint as to all defendants, no claims or

parties remain pending in the trial court.

{¶16} The appeal is dismissed.

{¶17} Costs are assessed to Appellant.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur