Stepp v. Starrett, Case No. 18CA714

• Court: United States Court of Appeals (Ohio)
• Citation: 2019 Ohio 4707
• Docket Number: Case No. 18CA714
• Parties: Shawn E. Stepp, II, Plaintiff-Appellant, v. Michele Starrett, et al., Defendants-Appellees.
• Decision Date: 28 October 2019

2019 Ohio 4707

Shawn E. Stepp, II, Plaintiff-Appellant,
v.
Michele Starrett, et al., Defendants-Appellees.

Case No. 18CA714

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT VINTON COUNTY

October 28, 2019

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Sky Pettey, Lavelle and Associates, Athens, Ohio for Appellant.

Stephen C. Rodeheffer, Portsmouth, Ohio for Appellees.

Hess, J.

{¶1} Shawn E. Stepp, II appeals the trial court's order dismissing his claims against Michele Starrett, individually and in her capacity as the trustee for the Lawrence G. Daft Revocable Living Trust Agreement; the Lawrence G. Daft Revocable Living Trust Agreement; and Daft Farms Family Limited Partnership. Steep sought an accounting and alleged breaches of the limited partnership agreement and breaches of the fiduciary duties of loyalty and care. The trial court granted the defendants' motion for summary judgment on the ground that Stepp lacked standing, dismissed Stepp's amended complaint, and assessed costs against Stepp. However, the action involved multiple claims and parties. The counterclaim of Daft Farms Family Limited Partnership against Stepp remains pending. The judgment entry originally appealed fails to include a

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determination that there is no just reason for delay as require by Civ.R. 54(B). Therefore, the judgment entry is not a final appealable order and we lack jurisdiction.

{¶2} We ordered Stepp to file a memorandum addressing the jurisdictional issue. In response, the parties obtained a nunc pro tunc entry from the trial court that contained Civ.R. 54(B) language, acknowledged that the original entry did not contain Civ.R. 54(B) language, and asked that the appeal proceed rather than be dismissed. Civ.R. 60(A) allows a trial court to correct clerical mistakes in judgments, orders or other parts of the record with leave from the appellate court. However, because the original judgment entry appealed lack Civ.R. 54(B) language, it is not a final appealable order. As a result, this court lacks jurisdiction to rule on any aspect of the controversy, including a request for leave to file a 60(A) motion in the trial court. Thus 60(A) cannot be used to add Civ.R. 54(B) language to the order during the pendency of an appeal. For these reasons we lack jurisdiction and dismiss the appeal.

LEGAL ANALYSIS

{¶3} Before we reach the merits of the appeal, we must determine if we have jurisdiction. Appellate courts "have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district[.]" Section 3(B)(2), Article IV, Ohio Constitution; see also R.C. 2505.03(A). If a court's order is not final and appealable, we have no jurisdiction to review the matter and must dismiss the appeal. Eddie v. Saunders, Gallia App. No. 07CA7, 2008-Ohio-4755, at ¶ 11. If the parties do not raise the jurisdictional issue, we must raise it sua sponte. Ray v. Wal-Mart Stores, Inc., 4th Dist. Washington No. 10CA27,

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2011-Ohio-5142, ¶ 8 citing Sexton v. Conley, Scioto App. No. 99CA2655, 2000 WL 1137463, *2 (Aug. 7, 2000).

{¶4} Under R.C. 2505.02, an order is final when it is: an order that affects a substantial right in an action that in effect determines the action and prevents a judgment; an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment; an order that vacates or sets aside a judgment or grants a new trial; or an order that grants or denies a provisional remedy. R.C. 2505.02(B)(1)-(4). "A final order determines the whole case, or a distinct branch thereof, and reserves nothing for future determination, so that it will not be necessary to bring the cause before the court for further proceedings." Savage v. Cody-Ziegler, Inc., Athens No. 06CA5, 2006-Ohio-2760, at ¶ 8.

{¶5} When a court issues a judgment that disposes of some claims but leaves other claims pending, the order is final and appealable only if the judgment complies with Civ.R. 54(B), which 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, and whether arising out of the same or separate transactions, 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 a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities

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