McKee v. Inabnitt

SUPREME COURT CASES

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McKee v. Inabnitt

State: Ohio

Court: Ohio Southern District Court

Docket No: 2001-Ohio-2595

Case Date: 09/26/2001

Plaintiff: McKee

Defendant: Inabnitt

Preview:IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY

BEULAH McKEE,  :
Plaintiff-Appellee,  :
vs.  :  Case No. 01CA711

DONALD E. INABNITT, ET AL., :
DECISION AND JUDGMENT ENTRY
Defendant-Appellee, :
RELEASED: 9-26-01
:
and
:
OWNERS INSURANCE CO.,
:
Defendant-Appellant.

APPEARANCES:
COUNSEL FOR APPELLANT: Edwin J. Hollern, Westerville, Ohio
COUNSEL FOR APPELLEE

STATE FARM INSURANCE: John L. Fosson, Waverly, Ohio

COUNSEL FOR APPELLEE
DONALD INABNITT: Stephen A. Bailey, Cincinnati, Ohio
COUNSEL FOR APPELLEE

BEULAH McKEE: Charles Wilson, West Union, Ohio

ABELE, P.J.

This is an appeal from a "judgment" issued by the Adams
County Common Pleas Court. The trial court found that appellees,
State Farm Mutual Automobile Insurance Company and State Farm
Fire & Casualty Company, are entitled to a declaratory judgment
in their favor against appellant, Owners Insurance Company. This

"judgment", inter alia, (1) includes the Civ.R. 54(B) language
finding that there is "no just reason for delay"; (2) and, State
Farm Mutual judgment against Owners Insurance Company in the
amount of $100,000 and costs; and (3) awards State Farm Fire
judgment against Owners Insurance Company in the amount of
$200,000 and costs. Subsequently, State Farm filed a motion for
prejudgment interest and for attorney fees, and Owners Insurance
filed a motion for relief from judgment. Although the trial
court's "judgment" purports to constitute a final appealable
order by including the Civ.R. 54(B) language, we noted that the
claims for prejudgment interest and attorney fees remain
outstanding and unresolved. Owners Insurance then filed its
notice of appeal.

Appellate courts in Ohio have jurisdiction to review the
final orders or judgments of inferior courts within their
district. Section 3(B)(2), Article IV of the Ohio Constitution;

R.C. 2501.02. A final appealable order is one which inter alia
affects a "substantial right" and either determines the action or
is entered in a special proceeding. R.C. 2505.02(B)(1)&(2). If
a judgment is not final and appealable, then an appellate court
has no jurisdiction to review the matter and it must be
dismissed. Prod. Credit Assn. v. Hedges (1993), 87 Ohio App.3d
207, 210, 621 N.E.2d 1360, 1362 at fn. 2; Kouns v. Pemberton
(1992), 84 Ohio App.3d 499, 501, 617 N.E.2d 701, 702.

Generally speaking, judgments that determine liability, but
defer the issue of damages for later determination, are not final

appealable orders. See State ex rel. White v. Cuyahoga Metro
Hous. Auth. (1997), 79 Ohio St.3d 543, 546, 684 N.E.2d 72, 72;
also see GTE North Inc. v. Carr (1993), 84 Ohio App.3d 776, 778,
618 N.E.2d 249, 250 at fn. 1. An unresolved motion for
prejudgment interest is part of the entire claim for relief. See
Pearce v. Advanced Realty Management, Inc. (Apr. 20, 2000),
Franklin App. No. 99AP-990, unreported. A determination of
liability without a determination of damages is not a final
appealable order because damages are part of a claim for relief,
rather than a separate claim in and of themselves. See Horner v.
Toledo Hosp. (1993), 94 Ohio App.3d 282, 290, 640 N.E.2d 857,

861. In addition, this Court and others have consistently held
that judgments awarding attorney fees, but deferring the amount
of those fees for later adjudication, do not determine the action
and therefore are neither final nor appealable. See e.g. 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, 234; Cole v.
Cole (Nov. 8, 1993), Scioto App. No. 93CA2146, unreported;
Pickens v. Pickens (Aug. 27, 1992), Meigs App. No. 459,
unreported; State ex rel. Van Meter v. Lawrence Cty Bd. of
Commsrs. (Aug. 26, 1992), Lawrence App. No. 91CA25, unreported;
also see Bilder v. Hayes (Jan. 25, 1995), Summit App. No. 16704,
unreported; Baker v. Eaton Corp., (Dec. 10, 1990), Stark App. No.
CA-8235, unreported.

We recognize that the trial court's judgment entry in the
case sub judice provides that the judgment "constitutes a final

appealable order" and includes a finding of "no just cause for
delay." See Civ.R. 54(B). This language does not, however, cure
the jurisdictional defect. Damages are part of a claim for
relief, rather than a separate claim in and of itself, and
therefore a determination of liability without a determination of
damages is not a final appealable order even with the addition of
Civ.R. 54(B) language. See Hitchings v. Weese (1997), 77 Ohio
St.3d 390, 391, 674 N.E.2d 688, 689 (Resnick, J., Concurring):
also see Horner v. Toledo Hosp. (1993), 94 Ohio App.3d 282, 288

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