Perez Bar & Grill v. Schneider, 2010 Ohio 1352 (Ohio App. 3/31/2010), C.A. No. 09CA009573.
| Decision Date | 31 March 2010 |
| Docket Number | C.A. No. 09CA009573. |
| Parties | Perez Bar & Grill, Appellee, v. George Schneider, Appellant. |
| Court | Ohio Court of Appeals |
Appeal from Judgment entered in the Court of Common Pleas, County of Lorain, Ohio Case No. 07CV153775.
Brent L. English, attorney at law, for appellant.
Jeffrey H. Weir, Ii, and Joshua E. Lamb, attorneys at law, for appellee.
DECISION AND JOURNAL ENTRY
{¶1} When George Schneider changed the locks on a commercial building he bought at a sheriff's sale, he inadvertently excluded a tenant from the premises. When the tenant, Josue Perez, contacted him, requesting access to his operating equipment, Mr. Schneider refused, claiming that everything inside the building belonged to him. The tenant, through his company, Perez Bar and Grill LLC, sued Mr. Schneider for replevin and conversion of 40 items of restaurant and bar equipment. After Perez attempted to dismiss the replevin claim, the remaining claim was tried to the court. The trial court entered judgment for the plaintiff in the amount of $9333. Mr. Schneider has attempted to appeal, arguing that the trial court incorrectly held that: (1) Perez had proven its conversion claim, (2) Mr. Schneider acquired no interest in the personal property by purchasing the real estate, (3) none of the disputed items are fixtures, (4) all of the disputed items are trade fixtures, (5) none of the disputed items were abandoned, (6) equitable estoppel does not apply, and (7) the value of the disputed property is $9333. This Court dismisses the attempted appeal because the trial court's order is not a final, appealable order.
{¶2} Perez sued Mr. Schneider, alleging conversion and replevin of the furniture, decorations, and equipment left inside the building when Mr. Schneider changed the locks. On the morning of trial, Perez's lawyer notified the trial court of his client's intent to voluntarily dismiss its replevin claim via Rule 41(A) of the Ohio Rules of Civil Procedure. Perez's lawyer told the court that "[his] client is going to go ahead and drop its claim for replevin . . . [and] proceed on the conversion claim." The trial court responded by confirming, on the record, that the replevin claim was being voluntarily dismissed under "[Rule] 41(A)(1)(a)." Perez did not file either a notice or a stipulation of dismissal. The parties tried the case to the bench, proceeding only on the theory of conversion.
{¶3} Immediately after the trial court issued its November 5, 2008, judgment entry ordering Mr. Schneider to pay Perez $9333 as damages for conversion of the property, Mr. Schneider moved for findings of fact and conclusions of law. When the trial court ruled on that motion on March 26, 2009, it did not include a certification under Rule 54(B) of the Ohio Rules of Civil Procedure that there was no just reason for delay. After Mr. Schneider moved for supplemental findings of fact and conclusions of law, he, on April 24, 2009, filed a notice of appeal from the trial court's orders of November 5, 2008, and March 26, 2009.
{¶4} Following a show cause order from this Court regarding jurisdiction, Mr. Schneider moved the trial court for an order "dismissing the replevin claim in [c]ount [o]ne of [its] complaint for want of prosecution" or, in the alternative, a certification that there is no just reason for delay under Civil Rule 54(B). In June 2009, the trial court ruled on the motion for supplemental findings of fact and conclusions of law, but did not include a certification under Rule 54(B) that there was no just reason for delay. Three days later, the trial court issued another journal entry indicating that its supplemental findings of fact and conclusions of law issued on June 19, 2009, "determines all claims and issues remaining before this Court" and certifying that there is no just reason for delay.
{¶5} Before this Court may address the merits of any appeal, it must be convinced that it has jurisdiction. Section 3(B)(2), Article IV of the Ohio Constitution provides that courts of appeals "shall have such jurisdiction as may be provided by law to review . . . judgments or final orders . . . ." Under Rule 54(B) of the Ohio Rules of Civil Procedure, a trial 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." Under Rule 54(B), "[w]hen more than one claim for relief is presented in an action . . . 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." "[A]n appellate court may not review an order disposing of fewer than all claims" in the absence of Rule 54(B) language. Int'l Bhd. of Elec. Workers, Local Union No. 8 v. Vaughn Indus. L.L.C., 116 Ohio St. 3d 335, 2007-Ohio-6439, at ¶8.
{¶6} Under Section 2505.04 of the Ohio Revised Code "[a]n appeal is perfected when a written notice of appeal is filed . . . ." "Once a case has been appealed, the trial court loses jurisdiction," In re S.J., 106 Ohio St. 3d 11, 2005-Ohio-3215, at ¶9, except insofar as its continuing jurisdiction is "not inconsistent with the court of appeals' jurisdiction to reverse, modify, or affirm the judgment." Yee v. Erie County Sheriff's Dep't, 51 Ohio St. 3d 43, 44 (1990) ().
{¶7} The first question for this Court is whether Perez successfully voluntarily dismissed its replevin claim under Civil Rule 41(A)(1) so that it did not remain pending when the trial court entered judgment on November 5, 2008. On the morning of trial, Perez attempted to dismiss the replevin claim against Mr. Schneider by orally dismissing it via the notice provision of Rule 41(A)(1)(a). Civil Rule 41(A)(1)(a), however, requires the "filing [of] a notice of dismissal." In any event, the attempted dismissal is a nullity because Rule 41(A)(1) does not permit a party to voluntarily dismiss anything less than all of its claims against any one party. Pattison v. W.W. Grainger Inc., 120 Ohio St. 3d 142, 2008-Ohio-5276, at ¶18. Therefore, Perez could not have used Rule 41(A)(1) to dismiss the replevin claim while pursuing the conversion claim against the same party. Thus, the replevin claim remained pending in the trial court.
{¶8} Immediately after the trial court issued its November 5, 2008, judgment entry ordering Mr. Schneider to pay Perez $9333 as damages for conversion of the contested property, Mr. Schneider moved for findings of fact and conclusion of law. See Civ. R. 52. Because Mr. Schneider filed a timely request for findings of fact and conclusions of law, his time for appeal did not begin to run until the trial court ruled on that motion. App. R. 4(B)(2). When the trial court ruled on that motion on March 26, 2009, it did not include a certification under Civil Rule 54(B), indicating that, despite the pending replevin claim, there was no just reason for delay in entering final judgment as to the conversion claim. Therefore, the trial court's order was not final. After Mr. Schneider moved for supplemental findings of fact and conclusions of law, he filed a notice of appeal on April 24, 2009, referencing the trial court's orders of November 5, 2008, and March 26, 2009.
{¶9} Mr. Schneider's notice of appeal deprived the trial court of jurisdiction to act on the motion for supplemental findings of fact and conclusions of law that he filed after the notice of appeal. "If a trial court lacks jurisdiction, any order it enters is a nullity and is void." Fifth St. Realty Co. v. Clawson, 9th Dist. No. 94CA005996, 1995 WL 353722 at *2 (June 14, 1995). Neither the November 5, 2008, nor the March 26, 2009, order Mr. Schneider appealed from contains a certification under Rule 54(B) of the Ohio Rules of Civil Procedure. Thus, Mr. Schneider filed a notice of appeal from an interlocutory order on the conversion claim while the replevin claim remained pending. Because the trial court added the Rule 54(B) certification to a nullity, it too, is a nullity. Therefore, this Court does not have jurisdiction over the attempted appeal.
{¶10} This Court does not have jurisdiction to hear this attempted appeal because the trial court's order was not final and appealable. The appeal is dismissed.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to appellant.
{¶11} I disagree with the majority's conclusion that this Court does not have jurisdiction to hear the merits of this appeal. Although the majority has correctly stated that Rule 41(A)(1) of the Ohio Rules of Civil Procedure does not permit a party to voluntarily dismiss anything less than all of its claims against any one party, Pattison v. W.W. Grainger Inc., 120 Ohio St. 3d 142, 2008-Ohio-5276, at ¶18, I do not agree that replevin and conversion are separate "claims" for purposes of Rule 54(B) of the Ohio Rules of Civil Procedure. As Perez filed only one "claim" to vindicate just one legal right, Civil Rule 54(B) does not apply to bar this appeal. See Civ. R. 54(B).
{¶12} In order for a court order to be final and appealable, it must satisfy the requirements of Section 2505.02 of the Ohio Revised Code. Once the statute has been satisfied, if the action involves multiple claims and the order does...
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