Johnson v. Wickliffe
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[Cite as Johnson v. Wickliffe, 2004-Ohio-15.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO GILBERT LEO JOHNSON, et al., : Plaintiffs-Appellants, MEMORANDUM OPINION : CASE NO. 2003-L-166 - vs - : CITY OF WICKLIFFE, et al., Defendants-Appellees. : : Civil appeal from the Court of Common Pleas, Case No. 02 CV 001064. Judgment: Appeal dismissed. Louis A. Turi, Jr., 30432 Euclid Avenue, #101, P.O. Box 325, Wickliffe, OH 44092 (For Plaintiffs-Appellants). Nick C. Tomino, Tomino & Latchney, L.L.C., 803 East Washington Street, #200, Medina, OH 44256 (For Defendant-Appellee, City of Wickliffe). Patrick F. Roche, Davis & Young, 1700 Midland Building, 101 Prospect Avenue, West, Cleveland, OH 44115-1027 (For Defendant-Appellee, Towne Investment II, Inc.) CYNTHIA WESTCOTT RICE, J. {¶1} On October 14, 2003, appellants, Gilbert Leo Johnson and Marigold Johnson, filed a notice of appeal from a September 15, 2003 judgment of the Lake County Court of Common Pleas. In that judgment, the trial court denied appellants motion for leave to file a supplemental brief opposing a motion for summary judgment which had been filed by appellee, Towne Investment II, Inc. {¶2} On November 4, 2003, appellee filed a motion to dismiss this appeal due to lack of a final appealable order. Appellants have not filed a response. Appellee asserts that the denial of a motion for leave to file a supplemental brief is not a final appealable order. We agree. {¶3} R.C. 2505.02(B) provides as follows: {¶4} An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following: {¶5} (1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment; {¶6} (2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment; {¶7} (3) An order that vacates or sets aside a judgment or grants a new trial; {¶8} (4) An order that grants or denies a provisional remedy and to which both of the following apply: {¶9} (a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy. {¶10} (b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action. 2 {¶11} (5) An order that determines that an action may or may not be maintained as a class action. {¶12} It is clear that the denial of a motion for leave to file a supplemental brief does not fall within any of these five categories of final appealable orders. It did not in effect determine the action or prevent a judgment, nor did it affect a substantial right. A final judgment has not yet been rendered in this case. Thus, this court does not have jurisdiction to consider this appeal. {¶13} Accordingly, appellee s motion to dismiss this appeal is hereby granted. {¶14} The appeal is dismissed. Appeal dismissed. JUDITH A. CHRISTLEY and WILLIAM M. O NEILL, JJ., concur. 3
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