Ferraro v. B.F. Goodrich Company
| Decision Date | 28 August 2002 |
| Docket Number | No. 01CA007887.,01CA007887. |
| Citation | 149 Ohio App.3d 301,2002 Ohio 4398,777 N.E.2d 282 |
| Parties | FERRARO, Appellant, v. B.F. GOODRICH COMPANY, Appellee. |
| Court | Ohio Court of Appeals |
Robert D. Kehoe, Cleveland, and Matthew W. Jorgensen, Columbus, for appellant.
Keith L. Pryatel, Akron, for appellee.
{¶ 1} Plaintiff-appellant, Michael D. Ferraro, has appealed from an order of the Lorain County Court of Common Pleas that dismissed two of his claims against defendant-appellee, the B.F. Goodrich Co. This court reverses and remands.
{¶ 2} On October 31, 2000, appellant filed a complaint in the Lorain County Court of Common Pleas against his former employer, the B.F. Goodrich Company ("Goodrich"). The caption of appellant's complaint was "Refiled Complaint."1 Appellant's complaint alleged that he was over the age of 40 and had been terminated by Goodrich on October 30, 1998, "under the false pretext of poor work performance." The complaint alleged three claims for relief: (1) age discrimination in violation of R.C. 4112.99, (2) breach of contract, and (3) tortious wrongful discharge in violation of public policy.
{¶ 3} Goodrich moved to dismiss the complaint, arguing that appellant's agediscrimination claim was time barred, the public-policy claim had to be dismissed because any relief due appellant was available through existing statutory remedies, and the implied-contract claim failed because appellant accepted "at-will" terms of employment. On June 14, 2001, the trial court granted Goodrich's motion to dismiss the claims for age discrimination and wrongful discharge in violation of public policy. The court denied the motion as to appellant's breach-of-contract claim, however, and appellant's complaint was left pending on that claim only.
{¶ 4} On July 10, 2001, appellant filed a motion in the trial court requesting it to reconsider its order dismissing appellant's age-discrimination and wrongful-termination claims. Appellant's motion requested, in the alternative, that the court amend the dismissal order to include Civ.R. 54(B) language so that appellant could take an immediate appeal.
{¶ 5} On July 12, 2001, appellant filed his notice of appeal from the trial court's order dismissing his age-discrimination and wrongful-termination claims. On August 10, 2001, the trial court denied appellant's motion to reconsider but granted the motion for Civ.R. 54(B) findings, and amended its dismissal order nunc pro tunc to include the language "There is no just reason for delay." Appellant has asserted two assignments of error for our review.
{¶ 6} Before proceeding to appellant's assignments of error, we are constrained to resolve a dispute concerning this court's jurisdiction to hear this appeal. Pursuant to Section 3(B)(2), Article IV of the Ohio Constitution, this court's appellate jurisdiction is limited to the review of final judgments of lower courts. See, also, Gen. Ace. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266. For a judgment to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B). Denham v. New Carlisle (1999), 86 Ohio St.3d 594, 596, 716 N.E.2d 184. R.C. 2505.02(B)(1) provides that an order "that affects a substantial right in an action that in effect determines the action and prevents a judgment" is final and appealable. Pursuant to Civ.R. 54(B):
{¶ 7} "When more than one claim for relief is presented in an action * * * whether arising out of the same or separate transactions, * * * the court may enter final judgment as to one or more but fewer than all of the claims * * * only upon an express determination that there is no just cause for delay."
{¶ 8} Goodrich has maintained that we are without jurisdiction to hear the appeal on two grounds. First, Goodrich has argued that the trial court's nunc pro tunc amendment of its dismissal order to include Civ.R. 54(B) language did not render that order final and appealable because the trial court did not amend the order until 26 days after appellant filed his notice of appeal. According to Goodrich, the trial court lost jurisdiction over the case when appellant filed the notice of appeal, and the court's amendment of its order nunc pro tunc to provide that "[t]here is no just reason for delay" was of no force and effect.
{¶ 9} "[N]unc pro tune entries are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided or what the court intended to decide." State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 164, 656 N.E.2d 1288. Nunc pro tunc entries are not appropriate to effect substantive changes in judgments; rather, they are manifestations of courts'"inherent authority to correct errors in judgment entries so that the record speaks the truth." State ex rel. Litty v. Leskovyansky (1996), 77 Ohio St.3d 97, 100, 671 N.E.2d 236. See, also, Lamb v. Summit Mall (Jan. 17, 2001), 9th Dist. No. 20011, at 10-11, 2001 WL 39597.
{¶ 10} While a case is pending on appeal, a trial court retains all jurisdiction over the case that is not inconsistent with the court of appeals' jurisdiction to reverse, modify, or affirm the judgment. In re Kurtzhalz (1943), 141 Ohio St. 432, 25 0.0. 574, 48 N.E.2d 657, paragraph two of the syllabus. Nunc pro tune entries which add Civ.R. 54(B) language to trial court orders have been found not to be inconsistent with such appellate court jurisdiction. In relarKessler (1993), 90 Ohio App.3d 231, 236-237, 628 N.E.2d 153; Regional Imaging Consultants Corp. v. Computer Billing Serv. (Nov. 30, 2001), 7th Dist. No. 00-CA-79, at 10, 2001 WL 1539261.
{¶ 11} Moreover, App.R. 4(C) provides: "A notice of appeal filed after the announcement of a decision, order, or sentence but before entry of the judgment or order that begins the running of the appeal time period is treated as filed immediately after the entry." This court has followed numerous other districts in retaining jurisdiction over appeals while trial courts amend judgments nunc pro tunc to include Civ.R. 54(B) language, rendering those judgments final and appealable. See Lamb, supra, at 4; Girard v. Lee Hang-Fu (June 28, 2000), 9th Dist. No. 99CA007414, at 3-4, 2000 WL 840511; Dimitroff v. Hamed (Feb. 9, 2000), 9th Dist. No. 19341, at 4, 2000 WL 150746; Helman v. EPL Prolong, Inc. (2000), 139 Ohio App.3d 231, 238, 743 N.E.2d 484; Atchison v. Atchison (June 29, 2001), 4th Dist. No. 00CA2727, at 5, 2001 WL 812804; Youngstown Buick Co. v. Hayes (Oct. 26, 2000), 7th Dist. No. 98-CA-159, 2000 WL 1635710. Accordingly, Goodrich's argument that the trial court was without jurisdiction to amend its order nunc pro tune to state that "[t]here is no just reason for delay" is without merit.
{¶ 12} Goodrich has next contended that the trial court's order dismissing two of the three claims for relief stated in appellant's complaint is not final and appealable even with the addition of Civ.R. 54(B) language. Goodrich has argued that the order did not determine the action or prevent a judgment as required by R.C. 2505.02(B)(1) because the trial court left appellant's breach-of-contract claim pending. Goodrich has cited Chef Italian Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64, in support of its position that the trial court's retention of appellant's breach-of-contract claim precludes the June 14, 2001 order from being final and appealable.2
{¶ 13} Subsequent to the decision in Chef Italiano, Civ.R. 54(B) was amended to specify that upon an express determination that there is no just reason for delay, a final judgment may be entered as to fewer than all of the claims in an action "whether arising out of the same or separate transactions." (Emphasis added.) Civ.R. 54(B). The Staff Note to the July 1, 1992 amendment provides:
{¶ 14}
{¶ 15} Following the 1992 amendment to Civ.R. 54(B), numerous appellate courts have found that a trial court order that disposes of fewer than all of a party's claims may be final and appealable when properly certified with Civ.R. 54(B) language. See Felger v. Tubetech, Inc., 7th Dist. No. 2000 CO 23, 2002-Ohio-1161, at 21, 2002 WL 417903; Regional Imaging, 7th Dist. No. 00-CA-79, at 13-14; Sinoff v. Ohio Permanente Med. Group, Inc. (2002), 146 Ohio App.3d 732, 734, 767 N.E.2d 1251, fn. 1.
{¶ 16} In 1993, the Ohio Supreme Court set forth the appropriate analysis for reviewing the finality and appealability of orders with respect to which the trial court has granted Civ.R. 54(B) certification. See Wisintainer v. Elcen Power Strut Co. (1993), 67 Ohio St.3d 352, 354, 617 N.E.2d 1136. An appellate court first reviews whether the order is final pursuant to R.C. 2505.02, focusing on "that predominantly legal question of whether the order sought to be appealed affects a substantial right and whether it in effect determines an action and prevents a judgment." Id. Secondly, the court reviews whether the trial court's determination that "there is no just cause for delay" was appropriate. Id.
{¶ 17} "A final order * * * is one disposing of the whole case or some separate and distinct branch thereof." Noble v. Colwell (1989), 44 Ohio St.3d 92, 94, 540 N.E.2d 1381. To be final and...
To continue reading
Request your trial
-
Bukta v. J.C. Penney Co., Inc.
... ... Cheryl L. BUKTA, Plaintiff, ... J.C. PENNEY COMPANY, INC., et al., Defendants ... No. 4:02 CV 598 ... United States ... 4112.02); Ferraro ... 4112.02); Ferraro v. B.F. Goodrich ... ...
- In re H.S.
-
Dunn v. Bruzzese, 06 JE 2.
... ... 2305.07, dealing with contracts not in writing. See, e.g., Ferraro v. B.F. Goodrich Co., 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d ... ...
-
Senter v. Hillside Acres Nursing Center of Willard, No. 3:03 CV 7638.
... ... for informational purposes only and can be changed by the company at any time with or without notice. This Handbook is not a contract, ... § 4112.14, to which a six-year statute of limitations applies, Ferraro v. B.F. Goodrich Co., 149 Ohio App.3d 301, 311, 777 N.E.2d 282, 290-91 ... ...