State ex rel. A & D Limited Partnership v. Keefe

[This opinion has been published in Ohio Official Reports at 

77 Ohio St.3d 50

.]




    THE STATE EX REL. A & D LIMITED PARTNERSHIP ET AL., APPELLEES, v.
                              KEEFE, JUDGE, APPELLANT.
   [Cite as State ex rel. A & D Limited Partnership v. Keefe, 

1996-Ohio-95

.]
Prohibition to prevent judge of common pleas court from conducting any
        additional hearings or rendering any decision on the issue of damages in
        an underlying action—Court of appeals errs in issuing writ when relators
        fail to establish that judge patently and unambiguously lacks jurisdiction
        to proceed with the damages hearing and determination.
  (No. 96-784—Submitted September 24, 1996—Decided November 6, 1996.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-960056.
                                  __________________
        {¶ 1} Several persons instituted a class action designated as Beck et al. v.
A & D Limited Partnership et al., case No. A-91-06574, in the Hamilton County
Court of Common Pleas on behalf of the occupants of the A & D Building in
Cincinnati.     The Beck plaintiffs alleged that poor indoor air quality created an
unsafe and unsanitary condition causing illness to building occupants. They
claimed that appellees, A & D Limited Partnership, Laurence Ashkin, and Arthur
Slaven, had breached a lease agreement, breached certain warranties, and acted
negligently, resulting in the unsafe and unsanitary condition of the building.
        {¶ 2} In August 1995, appellant, Judge John W. Keefe, presided over a
lengthy jury trial in Beck at which the issues of liability and punitive damages were
tried for the entire class and the issues of liability and damages were tried for four
class representatives, i.e., Sue Marshall, Linda Bachman, Karen Ringland, and
Joseph Schwetschenau. The jury also considered the loss of consortium claim of
Schwetschenau’s wife, Dolores. The jury returned a verdict in favor of appellees
on all issues and also returned a verdict finding no punitive damages for the class.
                             SUPREME COURT OF OHIO




In answers to special interrogatories, the jury determined that the plaintiffs had not
established by a preponderance of the evidence that appellees had been negligent
or breached the lease agreement or any warranty. The jury further determined that
none of the class representatives was entitled to compensatory damages.            In
September 1995, Judge Keefe entered a judgment in favor of appellees based on
the jury verdicts.
        {¶ 3} On December 6, 1995, Judge Keefe granted plaintiffs’ motion for
judgment notwithstanding the verdict on their negligence claim. In addition,
although Judge Keefe overruled plaintiffs’ alternative motion for a new trial, he
ordered a hearing to determine compensatory damages for the four class
representatives. On December 29, appellees filed a notice of appeal from Judge
Keefe’s December 6 judgment entry. After appellees’ counsel advised Judge Keefe
that appellees did not intend to appear at the scheduled damages hearing because
they believed that their appeal divested the common pleas court of further
jurisdiction, Judge Keefe stated that if appellees did not appear, they would be
considered as having “violated and disregarded a direct order of this Court.”
        {¶ 4} In January 1996, appellees filed a complaint in the Court of Appeals
for Hamilton County for a writ of prohibition to prevent Judge Keefe from
conducting any additional hearings or rendering any decision on damages in the
Beck case. The court of appeals denied Judge Keefe’s motion to dismiss the action
and issued a writ of prohibition preventing Judge Keefe “from conducting any
further hearings or issuing any decisions on the issue of damages” and “taking any
further action inconsistent with [the court of appeals’] authority to reverse, modify,
or affirm the matters which are the subject of [appellees’] appeal.”
        {¶ 5} The cause is now before this court upon an appeal as of right.
                             ____________________
        Droder & Miller Co., L.P.A., Robert G. Block and W. John Sellins, for
appellees.



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                                January Term, 1996




       Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley and
Paul M. DeMarco, for appellant.
                              ____________________
       Per Curiam.
       {¶ 6} Judge Keefe asserts in his propositions of law that the court of appeals
erred in issuing a writ of prohibition preventing him from conducting further
proceedings in the underlying action. In order to be entitled to a writ of prohibition,
appellees must establish (1) that Judge Keefe is about to exercise judicial or quasi-
judicial power, (2) that the exercise of that power is unauthorized by law, and (3)
that denying the writ will result in injury for which no other adequate remedy exists
in the ordinary course of law. State ex rel. Lipinski v. Cuyahoga Cty. Court of
Common Pleas (1995), 

74 Ohio St.3d 19, 20

, 

655 N.E.2d 1303

, 1305. It is
uncontroverted here that unless restrained, Judge Keefe would have exercised
judicial power by holding a hearing and rendering a decision on the issue of
damages on plaintiffs’ negligence claim in Beck. Therefore, the dispositive issues
are whether Judge Keefe’s intended exercise of judicial authority is unauthorized,
and if denying the writ will result in injury for which no other adequate remedy
exists in the ordinary course of law.
       {¶ 7} Absent a patent and unambiguous lack of jurisdiction, a tribunal
having general subject matter jurisdiction of a case possesses authority to determine
its own jurisdiction, and a party challenging its jurisdiction has an adequate remedy
by appeal from its holding that it has jurisdiction. Whitehall ex rel. Wolfe v. Ohio
Civ.Rights Comm. (1995), 

74 Ohio St.3d 120, 123-124

, 

656 N.E.2d 684

, 688. The
court of appeals determined that appellees’ appeal to that court of Judge Keefe’s
December 6, 1995 entry granting plaintiffs’ motion for judgment notwithstanding
the verdict patently and unambiguously divested Judge Keefe of jurisdiction to
conduct further proceedings on damages.




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                             SUPREME COURT OF OHIO




       {¶ 8} Judge Keefe asserts that the appeal from his entry of December 6,
1995 did not divest him of jurisdiction to proceed in the underlying action because
that entry granting plaintiffs’ motion for judgment notwithstanding the verdict was
not a final appealable order. A reviewing court possesses jurisdiction only to
reverse, modify, or affirm a judgment which constitutes a final appealable order.
State ex rel. Tollis v. Cuyahoga Cty. Court of Appeals (1988), 

40 Ohio St.3d 145

,

532 N.E.2d 727

. The trial court retains all jurisdiction that is consistent with the
reviewing court’s jurisdiction to reverse, modify, or affirm the judgment. Pegan v.
Crawmer (1996), 

76 Ohio St.3d 97, 102

, 

666 N.E.2d 1091, 1096

; State ex rel. Neff
v. Corrigan (1996), 

75 Ohio St.3d 12, 15

, 

661 N.E.2d 170, 174

.
       {¶ 9} Under Section 3(B)(2), Article IV of the Ohio Constitution, courts of
appeals have “such jurisdiction as may be provided by law to review and affirm,
modify, or reverse judgments or final orders of the courts of record inferior to the
court of appeals within the district ***.” R.C. 2505.03(A) limits the appellate
jurisdiction of courts of appeals to the review of final orders, judgments or decrees.
R.C. 2505.02 defines “final order” as “[a]n order that affects a substantial right in
an action *** and prevents a judgment, an order that affects a substantial right made
in a special proceeding or upon a summary application in an action after judgment,
or an order that vacates or sets aside a judgment or grants a new trial ***.”
(Emphasis added.)
       {¶ 10} In his first proposition of law, Judge Keefe contends that the
December 6, 1995 entry was not a final order under R.C. 2505.02 because (1) it
merely determined liability and not damages, and (2) he has not completed the task
of setting aside the judgment based on the jury verdict until he enters a judgment
on the damages issue.
       {¶ 11} Judge Keefe claims that based on Fireman’s Fund Ins. Cos. v. BPS
Co. (1982), 

4 Ohio App.3d 3

, 4 OBR 23, 

446 N.E.2d 181

, and Am. Mall, Inc. v.
Lima (1966), 

8 Ohio App.2d 181

, 

37 O.O.2d 195

, 

220 N.E.2d 839

, a judgment



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                                January Term, 1996




which determines liability in the plaintiff’s favor but defers damages for a
subsequent determination does not constitute a final order pursuant to R.C.
2505.02. In Fireman’s Fund, the court of appeals held that where a separate trial
on the issue of liability is held, and the issue of liability is determined in the
plaintiff’s favor, an entry of judgment by the trial court in plaintiff’s favor on the
issue of liability which leaves the amount of damages to be awarded unresolved
until some future time, does not constitute a final judgment which may then be
treated as an appealable order. Fireman’s Fund relied on American Mall and
Greeler v. Law (June 13, 1972), Franklin App. No. 72AP-60, unreported, in support
of its holding. These latter cases held that the orders determining liability in the
plaintiff’s favor and deferring the issue of damages were not final orders under R.C.
2505.02 because they did not determine the action, prevent a judgment, or affect a
substantial right in a special proceeding. American Mall, 

8 Ohio App.2d at 183

, 

37 O.O.2d at 196

, 

220 N.E.2d at 840

; Greeler, supra, at 19-21; see, also, Noble v.
Colwell (1989), 

44 Ohio St.3d 92, 96

, 

540 N.E.2d 1381, 1384

 (“As a general rule,
even where the issue of liability has been determined, but a factual adjudication of
relief is unresolved, the finding of liability is not a final appealable order even if
Rule 54(B) language was employed.”). None of these three cases involved a
postjudgment order that “vacates or sets aside a judgment or grants a new trial” as
included in R.C. 2505.02’s definition of “final order,” which the court of appeals
determined to be applicable here. Therefore, they are inapposite.
       {¶ 12} Judge Keefe also cites May v. Mauger (1964), 

1 Ohio App.2d 238

,

30 O.O.2d 262

, 

204 N.E.2d 412

, where the court of appeals held that a journal entry
of a trial court in a negligence action entering judgment for the plaintiff
notwithstanding the verdict of the jury on the issue of liability and ordering a new
trial on the issue of damages was not a final appealable order. The court of appeals
in May stated that “[t]he ‘judgment’ as it now stands is in effect an interlocutory
order, analogous to the partial or interlocutory judgment as provided in summary




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                            SUPREME COURT OF OHIO




judgment matters under Section 2311.041, Revised Code.             The trial court
determined the issue of negligence, and in effect the matter of proximate cause,
although there is the genuine issue of damages remaining unresolved. As a
practical matter the court is obliged to impanel a jury to which it must submit the
case.   When all issues are resolved a judgment of the court, reciting the
determination of all of the issues, will be in appealable form.” 

Id.,

1 Ohio App.2d at 241-242

, 

30 O.O.2d at 264

, 

204 N.E.2d at 414

.
        {¶ 13} May did not analyze the language of the applicable version of R.C.
2505.02 in reaching its holding. In Mayo v. Hall (Aug. 28, 1980), Cuyahoga App.
No. 41423, unreported, the Court of Appeals for Cuyahoga County held that a trial
court order granting a motion for judgment notwithstanding the verdict in favor of
a plaintiff on the issue of liability in a personal injury action and granting a new
trial on the issue of damages was a final appealable order. Mayo stated that May
was no longer viable based on the following:
        “When May v. 

Mauger, supra,

 was decided, an order granting a new trial
was not considered a final appealable order, under the authority of Green v. Acacia
Mutual Life Ins. Co. (1951), 

156 Ohio St. 1

 [

45 O.O. 32

, 

100 N.E.2d 211

]. The
Supreme Court overruled Green in 1965, in the case of Price v. McVoy Sales &
Service, Inc.[(1965)], 

2 Ohio St.2d 131

 [

31 O.O.2d 229

, 

207 N.E.2d 236

]. Since
1965, there has been no question that a lower court decision granting a new trial is
appealable. The fact that the action will not be terminated until the end of the
second trial does not preclude a party from appealing the order granting the new
trial.” See, also, Hurt v. Charles J. Rogers Transp. Co. (1953), 

160 Ohio St. 70

, 

50 O.O. 534

, 

113 N.E.2d 489

, paragraph one of the syllabus (“The journalized
judgment of a ruling of a trial court on a motion to direct a verdict or on a motion
for a judgment notwithstanding the verdict constitutes a final order from which an
appeal may be taken.”).




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                                    January Term, 1996




        {¶ 14} In the case at bar, the September 1995 judgment incorporated the
jury verdicts finding in favor of appellees on all of the claims raised in the
underlying action. The December 6, 1995 entry in which Judge Keefe granted the
plaintiffs’ motion for judgment notwithstanding the verdict on their negligence
claims set aside the September 1995 judgment to that extent. Further, although
Judge Keefe’s December 6 entry purported to overrule the plaintiffs’ motion for a
new trial, an analysis of both the entry and the prior memorandum decision on
which it was based indicates that Judge Keefe actually granted a new trial on the
damages issue. The jury trial included evidence of both liability and damages. By
his December 6 entry, Judge Keefe ordered a new hearing to determine damages at
which direct and cross-examination of witnesses would be permitted. Therefore,
the December 6 entry set aside the previous judgment and ordered a new trial. See,
e.g., R.C. 2311.01, defining “trial” as “a judicial examination of the issues, whether
of law or of fact, in an action or proceeding”; Brown v. Coffman (1983), 

13 Ohio App.3d 168, 170

, 13 OBR 203, 205, 

468 N.E.2d 790, 791

 (“An examination of the
grounds for new trial under Civ.R. 59(A) suggests that the drafters of the rule
contemplated the term ‘trial’ in its conventional sense, that is, an adversary
proceeding, including pleadings, opening statements, presentation of evidence,
closing arguments, and submission to the court or jury for final determination.”;
see, also, Huey v. Rider (Feb. 1, 1990), Van Wert App. No. 15-88-6, unreported;
Knecht v. Ohio Dept. of Rehab. & Corr. (1992), 

78 Ohio App.3d 360, 367

, 

604 N.E.2d 820, 825

 (Whiteside, J., concurring).1
        {¶ 15} In addition, an amendment to R.C. 2505.02, effective March 17,
1987, modified the definition of “final order” from “an order vacating or setting



1. Subsequent to the entry, Judge Keefe and the parties evidently agreed that Judge Keefe would
reconsider the previous testimony at the jury trial to determine damages rather than hold a new
evidentiary hearing. However, the December 6 entry and memorandum decision on which it was
based manifestly granted the parties a new trial on the damages issue.




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                               SUPREME COURT OF OHIO




aside a judgment and ordering a new trial” to “an order that vacates or sets aside a
judgment or grants a new trial.” (Emphasis added.) See Am.Sub.H.B. No. 412,
141 Ohio Laws, Part II, 3563, 3597.
          {¶ 16} Based on the foregoing, May is inapplicable and does not support
Judge Keefe’s assertion on appeal that the order granting the plaintiffs’ motion for
judgment notwithstanding the verdict does not constitute a final order under R.C.
2505.02. The December 6, 1995 entry both set aside the judgment based on the
jury verdict and granted a new trial and fit within R.C. 2505.02’s definition of “final
order.”
          {¶ 17} In his final contention in his first proposition of law, Judge Keefe
argues that under App.R. 4(B)(2) and Civ.R. 50(B), his December 6, 1995 order
was not final under R.C. 2505.02. App.R. 4(B)(2) provides that “[i]n a civil case
***, if a party files a timely motion for judgment [notwithstanding the verdict]
under Civ.R. 50(B), [or] a new trial under Civ.R. 59(B), *** the time for filing a
notice of appeal begins to run as to all parties when the order disposing of the
motion is entered.” Civ.R. 50(B) provides the following for motions for judgment
notwithstanding the verdict:
          “*** If a verdict was returned, the court may allow the judgment to stand
or may reopen the judgment. If the judgment is reopened, the court shall either
order a new trial or direct the entry of judgment, but no judgment shall be rendered
by the court on the ground that the verdict is against the weight of the evidence. If
no verdict was returned the court may direct the entry of judgment or may order a
new trial.”
          {¶ 18} In essence, Judge Keefe claims that the appeal by appellees in the
underlying action is premature, since he will not have “disposed” of the plaintiffs’
Civ.R. 50(B) motion for judgment notwithstanding the verdict until he rules on the
issue of damages. However, as previously noted, Judge Keefe granted the Civ.R.
50(B) motion and, contrary to the language in his entry, effectively ordered a new



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                                 January Term, 1996




trial on damages. The December 6, 1995 entry thereby disposed of the plaintiffs’
motions for purposes of App.R. 4(B)(2) and Civ.R. 50(B). Based on the foregoing,
the court of appeals correctly ruled that Judge Keefe’s December 6 entry constituted
a final order under R.C. 2505.02. Judge Keefe’s first proposition of law is
overruled.
        {¶ 19} Judge Keefe contends in his second proposition of law that even if
the December 6, 1995 order is final under R.C. 2505.02, it was not a final
appealable order because the requirements of Civ.R. 54(B) were not satisfied. In
his third proposition of law, Judge Keefe asserts that the court of appeals erred in
issuing a writ of prohibition because appellees failed to establish that he patently
and unambiguously lacked jurisdiction to proceed with the damages hearing and
determination.
        {¶ 20} An order of a court is a final appealable order only if the
requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met. Chef
Italiano Corp. v. Kent State Univ. (1989), 

44 Ohio St.3d 86

, 

541 N.E.2d 64

,
syllabus. Civ.R. 54(B) provides:
        “When more than one claim for relief is presented in an action ***, whether
arising out of the same or separate transactions, or when multiple parties are
involved, the court may enter final judgment as to one or more but fewer than all
of the claims or parties 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 or other form of decision, however designated, which adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the parties,
shall not terminate the action as to any of the claims or parties, and the order or
other form of decision is subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all the parties.”
        {¶ 21} Civ.R. 54(B) must be followed when a case involves multiple claims
and/or multiple parties. State ex rel. Wright v. Ohio Adult Parole Auth. (1996), 75




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                             SUPREME COURT OF OHIO




Ohio St.3d 82, 85, 

661 N.E.2d 728, 731

. An order adjudicating one or more but
fewer than all the claims or the rights and liabilities of fewer than all the parties
must meet the requirements of R.C. 2505.02 and Civ.R. 54(B) in order to be final
and appealable. 

Id.,

 75 Ohio St.3d at 85, 661 N.E.2d at 731, citing 

Noble, supra,

 at
syllabus; see, also, Jarrett v. Dayton Osteopathic Hosp., Inc. (1985), 

20 Ohio St.3d 77

, 20 OBR 407, 

486 N.E.2d 99

, syllabus (“An order vacating a judgment that was
entered against less than all the parties and in which the trial court did not make an
express determination that there was ‘no just reason for delay’ is not a final
appealable order.”). Here, it is uncontroverted that the underlying action involves
multiple claims (negligence, breach of lease agreement, breach of certain
warranties, and loss of consortium) and multiple parties. When Judge Keefe
entered his December 6, 1995 order granting plaintiffs’ motion for judgment
notwithstanding the verdict, some claims had been completely resolved (breach of
lease agreement, breach of warranty, and loss of consortium), while the negligence
claims were only partially resolved, since they awaited a determination regarding
damages. Judge Keefe did not make an express determination of no just reason for
delay pursuant to Civ.R. 54(B). Therefore, it appears that the December 6 order
was not final and appealable.
       {¶ 22} Appellees assert that Civ.R. 54(B) was inapplicable because App.R.
4(B)(5) permitted their appeal from the December 6 entry. App.R. 4(B)(5) provides
that “[i]f an appeal is permitted from a judgment or order entered in a case in which
the trial court has not disposed of all claims as to all parties, other than a judgment
or order entered under Civ.R. 54(B), a party may file a notice of appeal within thirty
days of entry of the judgment or order appealed or the judgment or order that
disposes of the remaining claims. ***”
       {¶ 23} App.R. 4 does not grant a party a right to appeal; it affects only the
time in which a party who has the right to appeal must file the notice of appeal.
1992 Staff Note to App.R. 4. App.R.4(B)(5) specifically excludes cases involving



                                          10
                                January Term, 1996




judgments or orders made appealable under Civ.R. 54(B). Courts have held that
App.R.4(B)(5) does not make an order appealable when it would not be appealable
under Civ.R. 54(B). Grabill v. Worthington Industries, Inc. (1993), 

91 Ohio App.3d 469

, 

632 N.E.2d 997

; Grabill v. Worthington Industries, Inc. (1993), 

89 Ohio App.3d 485

, 

624 N.E.2d 1105

; Dines v. Spurlock (Sept. 19, 1994), Clinton
App. No. CA94-02-005, unreported; but, cf., Olivito v. Cavanaugh (Dec. 30, 1992),
Jefferson App. Nos. 90-J-33 and 90-J-39, unreported, fn. 3; Hildebrecht v. Kallay
(June 11, 1993), Lake App. No. 92-L-189, unreported. Therefore, App.R. 4(B)(5)
does not necessarily render Civ.R. 54(B) inapplicable.
       {¶ 24} Appellees also contend that Civ.R. 54(B) is inapplicable to the
December 6, 1995 order based on our statement that “even though all the claims or
parties are not expressly adjudicated by the trial court, if the effect of the judgment
as to some of the claims is to render moot the remaining claims or parties, then
compliance with Civ.R. 54(B) is not required to make the judgment final and
appealable.” Gen. Acc. Ins. Co. v. Ins. Co. of N. America (1989), 

44 Ohio St.3d 17, 21

, 

540 N.E.2d 266, 270-271

. However, the December 6 judgment did not moot
the issue of damages on the plaintiffs’ negligence claims. Thus, General Acc. Ins.
Co. is inapplicable.
       {¶ 25} In deciding a prohibition action, courts need not expressly rule on
the jurisdictional issue, since review is limited to whether jurisdiction is patently
and unambiguously lacking. State ex rel. Sellers v. Gerken (1995), 

72 Ohio St.3d 115, 118

, 

647 N.E.2d 807, 810

; Goldstein v. Christiansen (1994), 

70 Ohio St.3d 232, 238

, 

638 N.E.2d 541, 545

. Civ.R. 54(B) is not clearly inapplicable to the
December 6, 1995 entry. Therefore, the entry was not final and appealable, and the
appeal from that entry did not divest Judge Keefe of jurisdiction to proceed with
the damages hearing and determination in the underlying action.
       {¶ 26} For the foregoing reasons, the court of appeals erred in determining
that Judge Keefe’s lack of jurisdiction was patent and unambiguous. Appellees




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possessed an adequate remedy by appeal to raise this issue. We sustain Judge
Keefe’s second and third propositions of law and reverse the judgment of the court
of appeals issuing the writ of prohibition.
                                                              Judgment reversed.
          MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and STRATTON, JJ.,
concur.
          DOUGLAS, J., concurs in judgment only.
                               __________________




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