Fleenor v. Caudill

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[Cite as Fleenor v. Caudill, 2003-Ohio-6513.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY SCOTT FLEENOR, : : Plaintiff-Appellant, : Case No. 03CA2886 : vs. : : JEFF CAUDILL, : DECISION AND JUDGMENT ENTRY : Defendant-Appellee. : Released 11/26/03 : ___________________________________________________________ APPEARANCES: Mark J. Cardosi and Jessica L. Lane, Portsmouth, Ohio, for Appellant. George L. Davis, III, Portsmouth, Ohio, for Appellee. ___________________________________________________________ Harsha, J. Scott Fleenor appeals the trial court's decision {¶1} granting appellee Jeff Caudill's Civ.R. 60(B) motion for relief from erroneously judgment. concluded He that asserts that appellee the satisfied court the requirements for Civ.R. 60(B) relief and that the court improperly permitted substitute for appeal. appellee to use Civ.R. 60(B) as a However, because the trial court's decision is not a final appealable order, we do not reach the merits of appellant's assignments of error. 2 Scioto App. No. 03CA2886 {¶2} In February of 2001, appellant filed a complaint against appellee for violating the Consumer Sales Practices Act. Appellant requested $2,207.73 in damages. the trial court to award him Appellee filed an answer denying that he violated the CSPA. {¶3} motion In October of 2001, appellant filed a Civ.R. 37 requesting the trial court to order appellee answer interrogatories and to produce documents. to Appellant further requested that the court order appellee to pay his attorney fees connected with the motion. {¶4} motion. The court subsequently granted appellant's In its entry, the court stated that "the matter of [appellant]'s attorney's fees shall be considered by this Court at the time of the first pre-trial at this action or at the hearing controversies on any relating to further motion discovery, arising which out ever of occurs first." {¶5} In December of 2001, appellant filed a Civ.R. 37(B)(2)(c) motion for default judgment due to appellee's failure to comply with the court's discovery order. {¶6} On appellant's February motion 19, for 2002, default appellant $2,207.73 in damages. rule on the attorney fee issue. the trial judgment court granted and awarded The trial court did not 3 Scioto App. No. 03CA2886 {¶7} 60(B) In December motion for of relief 2002, from appellee filed judgment. In a his Civ.R. motion, appellee claimed that appellant "committed egregious error" by filing the motion for default judgment. that Civ.R. because he 55(A) had did not entered an permit the appearance Appellee argued entry in of the default case. He further argued that to the extent appellant sought Civ.R. 37 sanctions, the court should have first held a hearing to determine the appropriateness of sanctions. {¶8} On March 5, 2003, the appellee's Civ.R. 60(B) motion. trial court granted The court decided to set aside its decision granting appellant a default judgment because appellee's failure to comply with the discovery order was not willful. {¶9} decision "First Appellant and raises Assignment granting a timely motion the of appealed following Error: for relief The The trial court erred trial from in trial assignments submitted as a substitute for appeal. Error: the court judgment court's of error: erred which in was Second Assignment of granting a motion for relief from judgment which was submitted without any of the bases required by civil rule 60(B). Third Assignment of Error: The trial court erred in setting aside a default judgment properly granted under Civil Rule 37(B)(2) after 4 Scioto App. No. 03CA2886 appellee had repeatedly failed to respond to discovery requests and had failed to comply with the trial court's order to comply with the discovery requests." {¶10} Before we can address the merits of appellant's assignments of error, we first must consider whether the trial court's March 5, 2003 entry is a final appealable order. can An order must be final before an appellate court review it. See Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.03(A); Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 87, 541 N.E.2d 64. If an order is not final and appealable, then an appellate court has no jurisdiction to review the matter and must dismiss the appeal. See, e.g., Whittington v. Kudlapur (July 25, 2001), Hocking App. No. 01CA1. {¶11} "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." (citations omitted). unresolved and "A contemplates judgment that that further taken is not a final appealable order." leaves action Id. issues must be Bell v. Horton (2001), 142 Ohio App.3d 694, 696, 756 N.E.2d 1241. {¶12} A Civ.R. 60(B) trial court's motion is decision final and regarding appealable. a proper See GTE 5 Scioto App. No. 03CA2886 Automatic Electric v. ARC Industries (1985), 47 Ohio St.2d 146, 351 N.E.2d 113. However, a Civ.R. 60(B) motion is proper only with respect to final judgments. See Vanest v. Pillsbury Co. (1997), 124 Ohio App.3d 525, 532, 706 N.E.2d 825; see, also, Civ.R. 60(B) ("On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment * * *.") (emphasis added); Jarrett v. Dayton Osteopathic Hosp., Inc. (1985), 20 logically, Ohio St.3d "Civ.R. 77, 60(B) 78, is not 486 the N.E.2d 99. proper Thus, procedural device a party should employ when seeking relief from a non-final order." Vanest v. Pillsbury Co. (1997), 124 Ohio App.3d at 532-533. {¶13} If the judgment from which the moving party seeks relief is not final, then the motion is properly construed as a motion to reconsider and the court's order granting that motion is interlocutory. See Pitts v. Dept. of Transportation (1981), 67 Ohio St.2d 378, 423 N.E.2d 1105; Vanest v. Pillsbury Co. (1997), 124 Ohio App.3d 525, 534, 706 N.E.2d 825; Wolford v. Newark City School Dist. Bd. of Edn. (1991), 73 Ohio App.3d 218, 596 N.E.2d 1085; Pinson v. Triplett (1983), 9 Ohio App.3d 46, 458 N.E.2d 461; see, also, State v. Huff (Jan. 31, 1994), Scioto App. No. 2118 (Stephenson, J., concurring) ("[W]hen an order is not a 6 Scioto App. No. 03CA2886 final appealable order, the order declining to vacate that order is not a final appealable order."). Interlocutory orders are not appealable until the trial court renders a final judgment. See, e.g., Vanest, supra. {¶14} In this case, the court's February 19, 2001 order is interlocutory because the court did not resolve the attorney fee issue. {¶15} When a court imposes sanctions under Civ.R. 37(B), the court must "require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, failure was circumstances unless the court substantially make an award expressly justified of expenses finds or that the that other unjust." See, also, Rogers v. Kazee (1983), 10 Ohio App.3d 139, 142, 193194, 460 N.E.2d 1149; Bobko v. Sagen (1989), 61 Ohio App.3d 397, 413, 572 N.E.2d 823. Civ.R. 37 mandates an order of reasonable expenses unless the trial court makes an express finding indicating otherwise. Inc. (1996), 114 Ohio App.3d Soloman v. Excel Marketing, 20, 27, 682 N.E.2d 724. Absent an express finding that the failure to comply was substantially justified or that other circumstances would make an award unjust, the trial court must award reasonable expenses. Id. at 28; Bobko v. Sagen (1989), 61 Ohio App.3d 7 Scioto App. No. 03CA2886 397, 413, 572 N.E.2d 823; Babb v. Ford Motor Co. (1987), 41 Ohio App.3d 174, 180, 535 N.E.2d 676; Rogers v. Kazee (1983), 10 Ohio App.3d 139, 142, 460 N.E.2d 1149; Bilikam v. Bilikam (1982), 2 Ohio App.3d 300, 441 N.E.2d 845. {¶16} Moreover, a judgment deferring final adjudication of a request for attorney fees is not a final appealable order,1 and neither is a judgment awarding such fees but deferring adjudication of the amount.2 {¶17} Reading these two propositions together, we therefore conclude that a trial court's ruling on a Civ.R. 37(B)(2) sanction is not a final appealable order until the court rules on the attorney fee issue. The court either must "expressly find[] justified or award failure attorney was fees or substantially that that the other circumstances make an award of expenses unjust." {¶18} Here, appellant requested the court to award him attorney fees, and the trial court never ruled on the issue. Moreover, Civ.R. 37(B)(2) required the court to assess attorney fees unless the court expressly found that 1 See Ft. Frye Teachers Assn. v. Ft. Frye Local School Dist. Bd. of Edn. (1993), 87 Ohio App.3d 840, 843, 623 N.E.2d 232; Vannoy v. Capital Lincoln-Mercury Sales, Inc. (Jun. 1, 1993), Ross App. Nos. 1868 & 1871; Baker Industrial Equip. Inc. v. Osair, Inc. (Jan. 9, 1991), Summit App. No. 14704, unreported; Russ v. TRW, Inc. (Feb. 2, 1989), Cuyahoga App. No. 54973. 2 See Cole v. Cole (Nov. 8, 1993), Scioto App. No. 93CA2146; Pickens v. Pickens (Aug. 27, 1992), Meigs App. No. 459; State ex rel. VanMeter v. Lawrence Co. Bd. of Commrs. (Aug. 25, 1992), Lawrence App. No. 91CA25; Baker v. Eaton Corp. (Dec. 10, 1990), Stark App. No. CA-8235. 8 Scioto App. No. 03CA2886 appellee's failure to comply with the discovery orders "was substantially justified or that other circumstances make an award of expenses unjust the circumstances did not require it." Because the court did not rule on the attorney fee issue, the court's February entirely dispose of the case. 19, 2001 entry does not Therefore, the February 19, 2001 entry is not a final appealable order. Because that entry was not final, appellee's Civ.R. 60(B) motion was not the proper procedural device for the motion construe obtaining as a relief. Nonetheless, we motion to reconsider. Doing so then leads us to conclude that the court's entry granting appellee's motion is interlocutory, and, thus, not appealable. APPEAL DISMISSED. Abele, J.: Kline, J.: Concurs in Judgment Only. Concurs in Judgment and Opinion. For the Court BY: _______________________ William H. Harsha, Judge

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