Whitaker-Merrell Co. v. Geupel Const. Co.
| Decision Date | 15 March 1972 |
| Docket Number | No. 71-301,WHITAKER-MERRELL,71-301 |
| Parties | , 58 O.O.2d 399 TheCO. et al., Appellants, v. Carl M. GEUPEL CONSTRUCTION CO., Inc., et al., Appellees. |
| Court | Ohio Supreme Court |
Syllabus by the Court
A trial court is authorized to grant final summary judgment upon the whole case, as to fewer than all of the claims or parties in multi-party or multi-claim actions, only upon an express determination that there is no just reason for delay until judgment is granted as to all the claims and parties. In that event, the judgment is reviewable upon the determination of no reason for delay, as well as for error in the granting of judgmentf otherwise, the judgment is not final and not reviewable.
Joseph F. Hogan, Columbus, for appellants.
Knepper, White, Richards & Miller, John granting of judgment; otherwise, the judgment for appellees.
Appellee Geupel was awarded a state highway construction contract and entered into a subcontract for paving with Davidson, who in turn purchased material and services from various materialmen, including Whitaker, Purdy, Basic and Standard Oil of Ohio. The latter were not paid in full by Davidson.
Whitaker sued Geupel as prime contractor, and Aetna as surety on its statutory bond, pursuant to R.C. § 153.56. Geupel filed a third party complaint against Ohio Casualty surety for Davidson, seeking reimbursement for whatever judgments it might be required to pay to Davison's materialmen. Purdy, Basic and Standard Oil became parties and likewise filed complaints against Geupel and Aetna. The trial court granted motions filed, pursuant to Civ.R. 56(A), by Whitaker and Purdy for summary judgments against Geupel and Aetna, who appealed therefrom.
In reversing, the Court of Appeals found that there was no genuine issue as to any material fact between Whitaker and Purdy on the one hand, and Geupel and Aetna on the other. If further found that the issues between Geupel and Ohio Casualty were not yet determined. With these findings we agree.
The Court of Appeals then held that the summary judgments were not rendered upon the whole case as required by Civ.R. 56(D), 1 reversed the judgments and remanded the cause to the trial court with instructions to comply therewith. Whitaker and Purdy then appealed to this court.
We disagree with the disposition of the case by the Court of Appeals. The 'whole case,' as to both Whitaker and Purdy, is the entire claim of each against Geupel and Aetna. It does not include all of the other claims and cross-claims involved in the single action, all of which are still pending in the trial court. To hold otherwise would render nugatory Civ.R. 56(A) and (B) which provide for summary judgment on behalf of either party to a claim, counterclaim or cross-claim in accordance with Civ.R. 56(C).
However, we agree that these appeals must be remanded to the trial court, but for a different reason and a different purpose. The trial court's entries of summary judgment in favor of Whitaker and Purdy pursuant to Civ.R. 56(A) could not, and did not, constitute final judgments under Civ.R. 54(B) 2 because they failed to include 'an express determination' that there was 'no just reason' for delaying the granting of summary judgment as to each of those parties. Therefore, the Court of Appeals should have, sua sponte, dismissed the appeal of Geupel and Aetna from those judgments on the ground that they were not appealable judgments or orders. Cincinnati v. Butler (1966), 5 Ohio St.2d 80, 214 N.E.2d 86.
Actually, Whitaker and Purdy were more adversely affected than Geupel and Aetna by the trial court's failure to make the required determinations. This is so because the last sentence of Civ.R. 54(B) provides that in the absence of such determination, the orders, 'however designated . . . shall not terminate the action as to any of the claims or parties' and are 'subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.' In other words, Whitaker and Purdy gained very little by the trial court's entries, and Geupel and Aetna lost nothing thereby.
Whatever may be said of the ...
To continue reading
Request your trial
-
In re H.S.
...raise it. Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus; Whitaker–Merrell v. Geupel Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972). R.C. 2505.02(B) defines the characteristics of a final order and states in relevant part:An order is a final or......
-
State v. Maxie, CASE NO. 9-13-73
...3d Dist. Allen No. 1-09-46, 2010-Ohio-192, ¶ 4;3 In re Murray, 52 Ohio St.3d 155, 159-160, fn. 2 (1990); Whitaker-Merrell Co. v. Geupel Constr. Co., 29 Ohio St.2d 184 (1972). Not only is this court required to raise jurisdictional issues, but appellate courts may also consider an error that......
-
Lexington Ins. Co. v. Dunnwell, LLC
...this Court is obligated to raise sua sponte questions related to our jurisdiction. Whitaker–Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972). This Court has jurisdiction to hear appeals only from final judgments. Article IV, Section 3(B)(2), Ohio Consti......
-
Striff v. Luke Med. Practitioners Inc
...appealable order even when there are other outstanding claims against other parties left in the case. Whitaker-Merrell Co. v. Geupel Co. (1972), 29 Ohio St.2d 184, 280 N.E.2d 922, at the syllabus; Lillie v. Meachem, 3d Dist. No. 1-09-09, 2009-Ohio-4934, ¶8. However, an order of a court will......