Santa v. Smith
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[Cite as Santa v. Smith, 2010-Ohio-2897.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 93996 KATHI SANTA, ET AL. PLAINTIFFS-APPELLANTS vs. LINDA SMITH, ET AL. DEFENDANTS-APPELLEES JUDGMENT: DISMISSED Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-697267 BEFORE: RELEASED: McMonagle, J., Kilbane, P.J., and Sweeney, J. June 24, 2010 JOURNALIZED: ATTORNEY FOR APPELLANTS William M. Goldstein Goldstein & Goldstein Co., L.P.A. 55 Public Square, Suite 1575 Cleveland, OH 44113 FOR APPELLEES Linda Smith, pro se Dwayne Smith, pro se 3949 W. 157th Street Cleveland, OH 44111 N.B. This entry is an announcement of the court's decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief, per App.R. 26(A), or a motion for consideration en banc with supporting brief per Loc.App.R. 25.1(B)(2), is filed within ten days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. 2.2(A)(1). CHRISTINE T. McMONAGLE, J.: {¶ 1} Plaintiffs-appellants, Kathi Santa and Santa s Workshop, Inc., dba Santa s Cycle Supply (collectively Santa ), appeal the trial court judgment granting the motion for summary judgment of defendants-appellees, Linda Smith and Dwayne Smith. We dismiss for lack of a final appealable order. {¶ 2} Santa filed a complaint for damages and permanent injunction. The Smiths, pro se, filed a motion for summary judgment as to plaintiffs entire complaint. They also filed a counterclaim, alleging that they suffered approximately $4,000 in damages as a result of their dealings with Santa. Santa opposed counterclaim. the summary judgment motion and answered the The trial court summarily granted the Smiths summary judgment motion. The counterclaim remains pending. {¶ 3} R.C. 2505.03(A) provides that [e]very final order, judgment, or decree of a court * * * may be reviewed on appeal by a court of common pleas, a court of appeals, or the supreme court, whichever has jurisdiction. (Emphasis added.) Civ.R. 54(B) states in relevant part that [w]hen 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 * * * 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 reason for delay. In the absence of a determination that there is no just reason for delay, any order * * * which adjudicates fewer than all the claims * * * shall not terminate the action as to any of the claims * * *. {¶ 4} The trial court did not make an express determination that there was no just cause for delay. Thus, because the Smiths counterclaim remains pending, we do not have jurisdiction to hear this appeal. Appeal dismissed. It is ordered that appellees and appellants equally share the costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. CHRISTINE T. McMONAGLE, JUDGE MARY EILEEN KILBANE, P.J., and JAMES J. SWEENEY, J., CONCUR
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