TCS, Inc. v. Bogner Constr.

2014 Ohio 1982

• Court: Ohio Court of Appeals
• Decided: May 6, 2014
• Docket: 13CA96, 13CA101
• Status: Published

Opinion

[Cite as TCS, Inc. v. Bogner Constr., 2014-Ohio-1982.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

TCS, INC., DBA MASTERFLOORS, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. -vs- : : BOGNER CONSTRUCTION : Case No. 13CA96 COMPANY, et al. : 13CA101 : Defendants - Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2008-CV-2131H

JUDGMENT: Dismissed

DATE OF JUDGMENT: May 6, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant, Bogner Construction Company DANIEL M. WALPOLE Walpole & Associates JOHN H. SCHAEFFER 411 Quaker Square PATRICK E. NOSER 120 E. Mill Street Critchfield, Critchfield & Johnson, Ltd. Akron, OH 44308 225 North Market Street/P.O. Box 599 Wooster, OH 44691

For Defendant-Appellant, Richland County Board of Commissioners

JAMES J. MAYER, JR. Prosecuting Attorney By: STEPHEN M. WILDERMUTH Assistant Prosecuting Attorney 38 South Park Street Mansfield, OH 44902 Richland County, Case No. 13CA96 and 13CA101 2

Baldwin, J.

{¶1} Defendant-appellant Richland County Board of Commissioners appeals from

the November 29, 2011, January 15, 2013 and October 9, 2013 Orders of the Richland

County Court of Common Pleas. Defendant-appellant Bogner Construction Company

appeal from such Orders and from the November 4, 2013 Order.

STATEMENT OF THE FACTS AND CASE

{¶2} On November 21, 2008, appellee Technical Construction Specialties Inc. dba

Masterfloors (hereinafter “appellee”) filed a complaint for breach of contract, unjust

enrichment, foreclosure on lien on public funds, breach of warranty and a bond claim

against appellant Bogner Construction Company, appellant Richland County Board of

Commissioners, Sauereisen, Inc. and Ohio Farmers Insurance Company. The claims all

related to work that appellee had performed on renovations to the Richland County Jail.

{¶3} On December 22, 2008, Sauereisen, Inc. filed an answer and a counterclaim

against appellee for breach of contract. Appellee filed an answer to the counterclaim on

January 8, 2009.

{¶4} Appellant Bogner Construction Company, on January 20, 2009, filed an

answer and a counterclaim against appellee and appellee’s General Manager, Jeffrey W.

Evans. The counterclaim set forth claims against appellee and Evans for

intentional/negligent misrepresentation and fraud/rescission and against appellee only for

breach of contract, unjust enrichment, breach of implied warranty, negligent manufacture

and indemnification. Ohio Farmers Insurance Company filed an answer on January 20,

2009 and, on the same date, appellant Richland County Board of Commissioners filed an

answer to the complaint and a cross-claim against appellant Bogner Construction Company

and Ohio Farmers Insurance Company. On February 17, both appellant Bogner Richland County, Case No. 13CA96 and 13CA101 3

Construction Company and Ohio Farmers Insurance Company filed answers to the cross-

claim filed by appellant Richland County Board of Commissioners .

{¶5} Thereafter, on February 23, 2009, appellee filed an answer to the counterclaim

filed by appellant Bogner Construction Company. Third-Party Defendant Jeffrey Evans, on

February 23, 2009, filed an answer to the Third-party complaint filed by appellant Bogner

Construction Company.

{¶6} Subsequently, on September 3, 2010, appellee filed a Motion for Summary

Judgment against appellants Bogner Construction Company and Richland County Board of

Commissioners. Appellant Richland County, on October 1, 2010, filed a response and a

request that summary judgment be entered in its favor. Appellant Bogner Construction

Company and Ohio Farmers Insurance Company, on October 4, 2010, filed a memorandum

in opposition to appellee’s Motion for Summary Judgment. Appellee filed a memorandum in

opposition to the Motion for Summary Judgment filed by appellant Richland County Board of

Commissioners on November 9, 2010. The motion was later denied.

{¶7} Appellee, on January 12, 2011, filed a Motion for Leave to File Motion for

Summary Judgment, arguing that it had had difficulty obtaining discovery from appellants

and Sauereisen. The trial court, pursuant to a Judgment Entry filed on January 12, 2011,

granted such motion. In response, appellant Richland County Board of Commissioners, on

March 11, 2011, filed a response to such motion and a renewal of the request that summary

judgment be entered in its favor. Three days later, appellant Bogner Construction Company

filed a memorandum in opposition to appellee’s Motion for Summary Judgment as well as a

Motion to Strike the same.

{¶8} Pursuant to an Order filed on November 29, 2011, the trial court granted

appellee’s January 12, 2011 Motion for Summary Judgment against appellants. The trial Richland County, Case No. 13CA96 and 13CA101 4

court, in its Order, found, in part, that appellee was entitled to recover reasonable attorney

fees and court costs from appellant Bogner Construction Company. The trial court instructed

appellee to prepare a statement of reasonable attorney fees and costs and indicated that if

appellant Bogner objected to the same, it would set the matter for a hearing.

{¶9} Appellant Richland County Board of Commissioners, on December 28, 2011,

filed a Notice of Appeal from the trial court’s November 29, 2011 Order. Such appeal was

assigned Case No.11CA126.

{¶10} On January 3, 2012, appellant Bogner Construction Company and Ohio

Farmers Insurance Company filed a pre-trial memorandum in the trial court, indicating that a

number of claims and motions remained pending.

{¶11} Via a Judgment Entry filed in Case No. 11CA126 on April 13, 2012, this Court

granted appellee’s Motion to dismiss the appeal filed by appellant Richland County Board of

Commissioners for lack of a final, appealable order.

{¶12} Thereafter, the trial court, on January 15, 2013, filed an “Order Resolving All

Pending Motions and Amending the November 29, 2011 Order of the Court.” The trial court,

in such order, set an oral hearing on the issue of attorney’s fees for February 6, 2013. The

trial court, in its Order, stated, in relevant part, as follows:

{¶13} “Plaintiff’s claims against Defendants Sauereisen for breach of warranty and

against Ohio Farmer’s Insurance regarding the bond remain pending, as no motion to

resolve those claims has ever been filed with the court. Defendant Sauereisen’s counter

claim against Plaintiff remains pending as no motion to resolve that claim has ever been

filed with the court. Defendant Richland County’s cross claims against Defendants Bogner

Construction and Ohio Farmer’s Insurance remain pending as no motion to resolve those

claims has ever been filed with the court.” Richland County, Case No. 13CA96 and 13CA101 5

{¶14} Appellee, on January 25, 2013, filed a Statement of Reasonable Attorney Fees

and appellants, on February 1, 2013, filed a joint memorandum in opposition to the same.

{¶15} Appellant Bogner Construction Company, on February 14, 2013, filed a Notice

of Appeal from the trial court’s November 29, 2011 and January 15, 2013 Orders. Such

appeal was assigned Case No. 13CA14. On the same day, appellant Richland County

Board of Commissioners filed a Notice of Appeal from the same Orders. That appeal was

assigned Case No.13CA23. Pursuant to a Judgment Entry filed in both cases on July 18,

2013, this Court dismissed the appeal for lack of a final, appealable order.

{¶16} On July 25, 2013, appellee filed a Motion to Supplement its request for

attorney fees, seeking fees incurred during the appeals process. Appellee filed a Statement

of Supplemental Attorney Fees and Costs on October 9, 2013.

{¶17} The trial court, as memorialized in an Order filed on October 9, 2013, awarded

appellee $66,763.87 as and for attorney fees along with interest.

{¶18} On October 15, 2013, appellant Richland County Board of Commissioners

filed a Notice of Appeal from the trial court’s November 29, 2011, January 15, 2013 and

October 9, 2013 Orders. Such appeal was assigned Case No. 13CA0096. Appellant

Richland County Board of Commissioners raised the following assignments of error on

appeal:

{¶19} 1. TRIAL COURT ERRED IN FINDING THE RICHLAND COUNTY

BOARD OF COUNTY COMMISSIONERS JOINTLY AND SEVERALLY LIABLE BASED ON

THE THEORY OF UNJUST ENRICHMENT.

{¶20} 2. THE TRIAL COURT, WHEN CONSIDERING THE SUMMARY MOTION

OF THE PLAINTIFF, MASTERFLOORS, ERRED IN FAILING TO CONSIDER THE Richland County, Case No. 13CA96 and 13CA101 6

EVIDENCE MOST STRONGLY IN THE FAVOR OF THE RICHLAND COUNTY BOARD OF

COUNTY COMMISSIONERS, THE NON-MOVING PARTY.

{¶21} On November 4, 2013, the trial court issued an Order granting appellee’s

request for supplemental attorney fees.

{¶22} Appellant Bogner Construction Company, on November 6, 2013, filed a Notice

of Appeal from the same Orders. Such appellant filed an Amended Notice of Appeal to

include the trial court’s November 4, 2013 Order. The appeal has been assigned Case No.

13CA0101. Appellant Bogner Construction Company raises the following assignments of

error on appeal:

{¶23} 1. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING

PLAINTIFF-APPELLEE’S MOTION FOR SUMMARY JUDGMENT AS THE TRIAL COURT

IMPROPERLY WEIGHED THE CREDIBILITY OF WITNESSES, CONSIDERED EVIDENCE

NOT BEFORE THE TRIAL COURT, AND DECIDED GENUINE ISSUES OF MATERIAL

FACT IN A LIGHT MOST FAVORABLE TO MASTERFLOORS.

{¶24} 2. THE TRIAL COURT ERRED AS A MATTER OF LAW IN AWARDING

ATTORNEYS’ FEES AND ALSO SUPPLEMENTAL ATTORNEYS’ FEES TO PLAINTIFF-

APPELLEE.

{¶25} 3. THE TRIAL COURT ERRED IN GRANTING LEAVE TO PLAINTIFF-

APPELLEE TO FILE ITS SECOND MOTION FOR SUMMARY JUDGMENT.

{¶26} 4. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT-APPELLANT’S MOTION TO STRIKE PLAINTIFF-APPELLEE’S JANUARY

12, 2011 MOTION FOR SUMMARY JUDGMENT. Richland County, Case No. 13CA96 and 13CA101 7

{¶27} 5. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DISMISSING

DEFENDANT-APPELLANT’S COUNTERCLAIM AGAINST MASTERFLOORS AND THIRD-

PARTY DEFENDANT JEFF EVANS.

{¶28} However, before we address the merits of either appeal, we must first

determine whether this Court has jurisdiction to consider the matter. Although not an issue

raised by any party, this Court must address, sua sponte, whether there is a final appealable

order ripe for review. State ex rel. White v. Cuyahoga Metro. Hous. Aut., 79 Ohio St.3d 543,

544, 1997–Ohio–366, 684 N.E.2d 72.

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

2505.02(B) provides the following in pertinent part:

{¶30} (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:

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

determines the action and prevents a judgment;

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

upon a summary application in an action after judgment.

{¶33} 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 parties, the

order must satisfy Civ.R. 54(B) by including express language that “there is no just reason

for delay.” Intl. Bd. 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. Richland County, Case No. 13CA96 and 13CA101 8

{¶34} Civ.R. 54(B) requires a court to make an express determination there is no just

reason for delay in order to make appealable an order adjudicating fewer than all the claims

or the rights of fewer than all the parties. Civ.R. 54(B) must be followed when a case

involves multiple claims or multiple parties. State ex rel. A & D Ltd. Partnership v. Keefe, 77

Ohio St.3d 50, 56, 671 N.E.2d 13 (1996).

{¶35} In the case sub judice, there is no final, appealable order. As noted by the

parties and the trial court, there are claims that remain pending between various parties.

The trial court’s October 9, 2013 Order, which resolves the claims between appellants and

appellee, does not contain Civ.R. 54(B) language which is required when fewer than all the

claims or the rights of fewer than all the parties have been adjudicated. Nor does the trial

court’s November 4, 2013 Order contain such language. In short, there is no Order which

both resolves all of the claims of the parties to these appeals and contains Civ.R. 54(B)

language.

{¶36} Accordingly, this Court does not have jurisdiction to entertain appellants'

appeals. Richland County, Case No. 13CA96 and 13CA101 9

{¶37} The appeals in Case Nos. 13CA96 and 13CA101 are dismissed for lack of

jurisdiction.

By: Baldwin, J.

Gwin, P.J. and

Farmer, J. concur.