Chef Italiano Corp. v. Kent State University

• Decision Date: 12 July 1989
• Docket Number: No. 88-53,88-53
• Citation: 44 Ohio St.3d 86,541 N.E.2d 64
• Parties: , 54 Ed. Law Rep. 947 CHEF ITALIANO CORPORATION, Appellant, v. KENT STATE UNIVERSITY et al., Appellees.
• Court: Ohio Supreme Court

Page 86

44 Ohio St.3d 86

541 N.E.2d 64, 54 Ed. Law Rep. 947

CHEF ITALIANO CORPORATION, Appellant, v. KENT STATE UNIVERSITY et al., Appellees.

No. 88-53.

Supreme Court of Ohio.

Submitted Feb. 15, 1989.

Decided July 12, 1989.

Syllabus by the Court

An order of a court is a final, appealable order only if the requirements of both Civ.R. 54(B), if applicable, and R.C. 2505.02 are met.

On July 7, 1987, appellant, Chef Italiano Corporation ("Chef Italiano"), filed a four-count complaint against three specifically identifiable sets of defendants--Chris S. Testa, Costco, Inc. and Colgate Enterprises ("Testa"), David Hall and Currie-Hall Investment Company ("Brokers"), and Kent State University ("Kent State").

In Count I of the complaint, Chef Italiano sought specific performance of a real estate contract. In Count II, Chef Italiano sought to quiet title to real property. In Count III, Chef Italiano requested damages for breach of fiduciary duty and in Count IV, Chef Italiano sought relief for breach of the real estate contract.

Chef Italiano brought all four counts against Testa. Brokers were sued on Counts I, II and III by Chef Italiano, i.e., all of the counts except the claim of damages for breach of contract. Chef Italiano brought only two claims against Kent State: Counts I and II--the claims for specific performance and to quiet title of the real estate.

Testa, Brokers and Kent State filed separate motions for summary judgment in response to Chef Italiano's allegations in its complaint.

On September 4, 1987, the trial court granted Testa summary judgment on Counts I and II. Specifically, the trial court determined that Chef Italiano failed to establish the necessary elements of a claim for specific performance and failed to establish standing to prosecute a claim to quiet title. However, the trial court denied Testa's motion for summary judgment on the breach of contract issue, Count IV, concluding that there were factual matters that had to be resolved. ¹ The court, in partially sustaining Testa's motion for summary judgment, included in the order that, as to its disposition of Counts I and II, there was "no just reason for delay."

At a September 11, 1987 hearing, the trial judge stated that he would "put an order on" dismissing Counts I and II of Chef Italiano's complaint against all parties.

By order dated October 6, 1987, the court granted Kent State's motion for summary judgment. The trial court determined that as a result of the September 4, 1987 order which dismissed Counts I and II, no cause of action remained against Kent State. ² The trial court did not include in the order the verbiage that there was "no just reason for delay."

From the September 4, 1987 court order, an appeal was timely filed by a corporate officer of Chef Italiano, Mark Figetakis, who is not an attorney. This appeal was assigned C.A. No. 1904.

Pursuant to App.R. 15, Brokers timely filed a motion to dismiss C.A. No. 1904. Brokers argued that the officer of Chef Italiano was not an attorney and that a notice of appeal could not be properly filed on behalf of a corporation by one not authorized to practice law.

From the October 6, 1987 order, Chef Italiano's newly hired counsel timely filed a notice of appeal which was assigned C.A. No. 1911. Based on Chef Italiano's motion, the court of appeals consolidated C.A. No. 1911 with C.A. No. 1904.

On November 16, 1987, the court of appeals dismissed C.A. No. 1904, holding that a corporation could not represent itself in a court of record, nor could it be represented by one not authorized to practice law.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Mark H. Heisa, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A., Dennis R. Wilcox and Irene A. Holyk, for appellee Kent State University.

Williams, Zumkehr & Welser and Howard T. Welser, for appellees Chris S. Testa, Costco, Inc. and Colgate Enterprises.

Harry A. Tipping Co., L.P.A., and Thomas J. Freeman, for appellees David Hall and Currie-Hall Inv. Co.

DOUGLAS, Justice.

The issue the parties present is whether a corporate officer not authorized to practice law has the authority to file a notice of appeal on behalf of the corporation.

While this presents an issue of first impression in this state which this court at some point should decide, we decline to do so in this case because we lack jurisdiction to hear this appeal on that issue.

The question of our jurisdiction to hear this appeal was not raised or briefed by any party. Nevertheless, we raise it on our own motion.

The jurisdictional issue in this case provides us with a perfect vehicle to speak about an ever-increasing problem of orders emanating from trial courts to the courts of appeals and to this court which are not final and appealable but which the originating court has attempted to render appealable by including the so-called magic language of "no just reason for delay" from Civ.R. 54(B).

In this case, we will address whether the September 4, 1987 and October 6, 1987 orders are final, appealable orders pursuant to R.C. 2505.02 and Civ.R. 54(B).

R.C. 2505.03(A) states, in relevant part, that "[e]very final order * * * may be reviewed on appeal * * *."

R.C. 2505.02 ³ defines three types of final orders: (1) an order affecting a substantial right in an action which in effect determines the action and prevents a judgment; (2) an order affecting a substantial right made in a special proceeding or made upon summary application after judgment; or (3) an order vacating or setting aside a judgment or granting a new trial. In this case, we will only discuss the first type of final order, which is an order affecting a substantial right which determines an action and prevents a judgment.

A substantial right is a " * * * legal right entitled to enforcement and protection by law[.]" In re Estate of Wyckoff (1957), 166 Ohio St. 354, 358, 2 O.O.2d 257, 260, 142 N.E.2d 660, 664. A court order which deprives a person of a remedy which he would otherwise possess deprives that person of a substantial right.

To be final, an order must also determine an action and prevent a judgment. See General Electric Supply Co. v. Warden Electric, Inc. (1988), 38 Ohio St.3d 378, 528 N.E.2d 195, syllabus. Furthermore, a final order must also comply with Civ.R. 54(B), if applicable. See Alexander v. Buckeye Pipe Line Co. (1977), 49 Ohio St.2d 158, 3 O.O.3d 174, 359 N.E.2d 702.

Civ.R. 54(B) provides in pertinent part:

"When more than one claim for relief is presented in an action * * * 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 such determination, any order * * * 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 * * * 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." (Emphasis added.)

Civ.R. 54(B) applies to those situations where there is more than one claim for relief presented or multiple parties are involved in an action, and where the lower court has rendered a final judgment, pursuant to R.C. 2505.02, with respect to fewer than all of the parties or to fewer than all of the claims. The purposes of Civ.R. 54(B) are " ' * * * to make a reasonable accommodation of the policy against piecemeal appeals with the possible injustice sometimes created by the delay of appeals' * * * as well as to insure that parties to such actions may know when an order or decree has become final for purposes of appeal * * *." (Citations omitted.) Pokorny v. Tilby Dev. Co. (1977), 52 Ohio St.2d 183, 186, 6 O.O.3d 416, 417, 370 N.E.2d 738, 739-740.

An order of a court is a final, appealable order only if the requirements of both Civ.R. 54(B), if applicable, and R.C. 2505.02 are met.

In the case sub judice, both the September 4, 1987 and the October 6, 1987 orders, which dismissed the specific performance and quiet title claims, affected Chef Italiano's substantial rights pursuant to R.C. 2505.02. The orders prevented Chef Italiano from pursuing the remedy of specific performance and the action to quiet title.

However, the September 4, 1987 order, which dismissed two claims of Chef Italiano against Testa, though it included the Civ.R. 54(B) language "no just reason for delay," was not a final order. The order did not determine Chef Italiano's action against Testa because two of Chef Italiano's claims against Testa remained outstanding. These two claims are that Testa breached its fiduciary duty to Chef Italiano (Count III) and that Testa breached its real estate contract with Chef Italiano (Count IV). Furthermore, the September 4 partial order did not prevent Chef Italiano from obtaining a judgment against Testa on these two claims. Therefore, since the September 4 order did not determine Chef Italiano's claim and prevent it from obtaining a judgment against Testa, it is not a final, appealable order pursuant to R.C. 2505.02 regardless of the presence of Civ.R. 54(B) language.

It is unclear whether the September 4, 1987 order applies to Brokers. However, even if the order was meant to apply to Brokers, it is not a final, appealable order pursuant to R.C. 2505.02. If it applies, the order dismisses only two of Chef Italiano's three claims against Brokers. Since there is still a claim of damages for breach of fiduciary duty pending against Brokers, the September 4 order does not determine Chef Italiano's action against Brokers. Additionally, Chef Italiano is not prevented from obtaining a judgment against Brokers because it could still prevail on the breach of fiduciary...