Ford Motor Credit Co. v. Landmark Air Fund I

• Decision Date: 09 December 1983
• Parties: , 12 O.B.R. 436 FORD MOTOR CREDIT COMPANY, Appellee, v. LANDMARK AIR FUND I et al., Appellants.
• Court: Ohio Court of Appeals

Page 117

12 Ohio App.3d 117

467 N.E.2d 573, 12 O.B.R. 436

FORD MOTOR CREDIT COMPANY, Appellee, v. LANDMARK AIR FUND I et al., Appellants.

Court of Appeals of Ohio, Sixth District, Lucas County.

Dec. 9, 1983.

Syllabus by the Court

1. In determining whether a given claim not specifically ruled upon by the trial court has been rendered "moot," for purposes of Civ.R. 54(B), the analysis of this question must focus upon (1) the parties to whom the unadjudicated issue relates, (2) the primary judgment, and (3) the nature of the particular issue or claim that is asserted to have been "mooted" by entry of the primary judgment in favor of a specific party.

2. Where a judgment in a civil action fails to adjudicate all the claims presented by that action, and one or more of such claims has not been rendered "moot," absent an express finding of "no just reason for delay" the order sought to be appealed is not a final appealable order within the meaning of Civ.R. 54(B).

Kevin H. Graham and Gregory J. Shibley, Toledo, for appellee.

Henry N. Heuerman and Donald E. Theis, Toledo, for appellants.

PER CURIAM.

This matter is before the court, sua sponte, there appearing to be noncompliance with Civ.R. 54(B) regarding the judgment from which the appeal sub judice has been taken.

At the outset, we observe that, according to the trial court's journal, plaintiff-appellee's motion for summary judgment was granted on August 12, 1983, and defendants-appellants filed their notice of appeal from that judgment on September 9, 1983. However, in reviewing the actual judgment entry, we note that it was signed and dated on September 6, 1983, but was not file-stamped until September 12, 1983. Despite these discrepancies, the notice of appeal itself would have been timely filed under the pre-filing provision of App.R. 4(A). We now turn to the rudimentary question arising from the mandate of Civ.R. 54(B).

In pertinent part, Civ.R. 54(B) states:

"(B) Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the court may enter final judgment as to * * * 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 a determination, 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 * * *." (Emphasis added.)

The trial court's judgment entry from which this appeal has been taken states, in relevant part:

"IT IS FURTHER ORDERED AND ADJUDGED that the Plaintiff Ford Motor Credit Company recover judgment against Landmark Air Fund III, an Ohio Partnership, Frederick L. Hotchkiss, M.D., Samuel B. Santa Rita, M.D., Robert J. Hartzfeld, M.D., Charles C. Church, M.D., Aquilles X. Palma Gill, M.D., and Ruth L. Mansa, M.D., jointly and severly [sic], in the sum of $174,279.09, with interest thereon from June 1, 1983, at the rate of eighteen percent (18%) per annum as specified in the promissory note which is the subject of this action, and its cost of action."

The foregoing judgment entry fails to comply with Civ.R. 54(B) in two respects.

First, multiple parties are involved here. The trial court's judgment entry apparently purports to be a "final judgment" as to fewer than "all the parties." In reviewing the above-quoted portion of the judgment entry, we observe that "Ruth L. Mansa, M.D." is named as one of the defendants against whom appellee recovered judgment on the promissory note. However, there appears to be no such person involved as a party-defendant in this case. Appellee's complaint named as one party-defendant Landmark Air Fund III, an Ohio partnership consisting of eight individual partners, all of whom were also named as party-defendants. The last three of these individual partners are: Ruth L. Drapiza, Paul B. Schwarz, M.D., and Gerald W. Marsa, M.D.

As is obvious from a review of the court's judgment entry, final judgment was never rendered as to these parties. Nor was there ever entered an express concomitant finding of "no just reason for delay." See Civ.R. 54(B). (In this regard, we note that appellee's motion for summary judgment, filed June 1, 1983, specifically requested that the trial court make a finding that "there is no just reason for delay.")

The second problem is that fewer than all the claims have been adjudicated--and, again, without the necessary express determination of "no just reason for delay." In Wise v. Gursky (1981), 66 Ohio St.2d 241, 421 N.E.2d 150 , the Ohio Supreme Court held in the syllabus:

"A judgment for the defendant in a civil action, which judgment renders the defendant's third-party complaint for indemnification or contribution moot, is a final appealable order pursuant to R.C. 2505.02, and Civ.R. 54(B) is not applicable to such a judgment."

In the body of the opinion, the Gursky court stated at 243, 421 N.E.2d 150:

"We hold that a judgment in an action which determines a claim in that action and has the effect of rendering moot all other claims in the action as to all other parties is a final appealable order pursuant to R.C. 2505.02, and Civ.R. 54(B) is not applicable to such a judgment." (Emphasis added.)

In the Gursky case, the verdict and judgment in favor of the defendant rendered moot his third-party complaint for indemnification, since the resolution of the particular issue of liability in the defendant's favor necessarily precluded further litigation on that issue against the third-party defendants. In determining "mootness," then, the analysis must focus on the parties to whom the unadjudicated issue relates, the primary judgment (e.g., summary judgment granted in favor of the defendant), and the nature of the particular issue or claim (e.g., a third-party complaint for indemnification or contribution) that is asserted to have been "mooted" by entry of the primary judgment in favor of a specific party.

In Harleysville Mut. Ins. Co. v. Santora (1982), 3 Ohio App.3d 257, 3 O.B.R. 289, 444 N.E.2d 1076, the Court of Appeals for Cuyahoga County faced a Civ.R. 54(B) issue similar to the one presently before us. In that case, a declaratory judgment action had been instituted. The purpose of the declaratory judgment proceeding was "to determine plaintiff's [the insurer's] liability under an uninsured motorist clause of an automobile insurance policy issued by the plaintiff to the defendant."...