Ohio

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Kimble Mixer Company v. James St. Vincent et al.,
No. 2003AP020014 (Ohio App. 06/09/2004)

KIMBLE MIXER COMPANY, Plaintiff-Appellee -vs- JAMES ST. VINCENT, ET AL, Defendant-Appellant

Case No. 2003AP020014

COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, TUSCARAWAS COUNTY

June 9, 2004, Date of Judgment Entry

DISPOSITION: Dismissed.

COUNSEL: For Plaintiff-Appellant: DAVID E. BUTZ, JACQUELINE BOLLAS CALDWELL, Canton, OH.

For Defendant-Appellee: CHARLES D. HALL III, Hall Law Firm, Canton, OH.

JUDGES: Hon: W. Scott Gwin, P.J., Hon: William B. Hoffman, J., Hon: Julie A. Edwards, J., By Gwin, P.J., Hoffman, J., and Edwards, J., concur.

OPINIONBY: Gwin

OPINION: Gwin, P.J.

Appellant James St. Vincent appeals the decision of the Tuscarawas County Court of Common Pleas granting judgment in favor of Plaintiff-appellee Kimble Mixer Company ("Kimble") on the counts of breach of contract, fraud and conversion.

Bruce Hall is a solo practitioner and served as the attorney for Defendant James St. Vincent ("St. Vincent"). Hall had a long business relationship with St. Vincent and his other business entities from at least 1992. In November 1994, Kimble, a manufacturer of cement mixers and trucks, and St. Vincent entered into a management services agreement whereby St. Vincent and his corporation, Montville Aircraft Corporation, agreed to provide the management of manufacturing and all [*2] the engineering and marketing necessary to sell the products of Kimble.

The agreement contained a covenant not to compete which prohibited St. Vincent from sharing product rights or knowledge for a period of three years after termination of the agreement. The agreement also provided that St. Vincent's only compensation was an advance of $ 7,000 a month, for six months. After the expiration of the six-month period, St. Vincent would receive compensation based upon the profitability of Kimble.

In 2001, Kimble discovered that St. Vincent had embezzled in excess of $ 1.6 million dollars. An investigation revealed that since 1992, Hall permitted St. Vincent to deposit much of the $ 1.6 million into Hall's IOLTA account. St. Vincent deposited a total of sixty-one checks into Hall's IOLTA account. The checks totaled $ 559,600.96. These checks included three checks upon which St. Vincent forged Kimble's endorsement. After accepting the deposits, Hall permitted St. Vincent to use the IOLTA account as his personal checking account. St. Vincent would direct Hall regarding the withdrawal of funds. Twenty-seven of the checks Hall wrote to St. Vincent or his companies, from [*3] the IOLTA account, were individually equal to or greater than $ 10,000.

Upon discovery of these activities, Kimble filed a complaint, against St. Vincent and several entities operated by St. Vincent, for breach of contract, fraud, bad faith, conversion and piercing the corporate veil. Kimble subsequently amended the complaint to include claims against Hall, individually, and Bruce Hall Co., L.P.A., for conversion, civil conspiracy, civil aiding and abetting, fraudulent conveyance and legal malpractice.

This matter went to trial in December 2002. At the close of all the evidence, Hall filed a motion for a directed verdict on all of the claims against him. The trial court granted Hall's motion on December 23, 2002. Following deliberations, the jury granted Kimble judgment, against St. Vincent, on the counts of breach of contract, fraud and conversion. The jury awarded Kimble $ 2.1 million in compensatory damages and $ 2.9 million in punitive damages. On January 10, 2003, St. Vincent filed a petition for bankruptcy in federal district court in Florida. On September 11, 2003, St. Vincent's bankruptcy proceeding was discharged. To date, the trial court has not determined [*4] attorney's fees in this matter, which the jury also awarded Kimble.

St. Vincent timely filed a notice of appeal and sets forth the following assignments of error for our consideration:

"I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY GIVING AN INCORRECT JURY INSTRUCTION AND BY FAILING TO GIVE THE CORRECT JURY INSTRUCTION ON THE LAW OF INDEPENDENT CONTRACTOR-PRINCIPAL AND EMPLOYEE-PRINCIPAL RELATIONSHIP.

"II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY PERMITTING TESTIMONY AND ADMISSION OF EVIDENCE REGARDING AN EXPUNGED CRIMINAL CONVICTION AND A CRIMINAL CONVICTION MORE THAN TEN YEARS OLD IN VIOLATION OF EVIDENCE RULES 609, 403, AND 404.

"III. THE TRIAL COURT ERRED AS A MATTER OF LAW BY PERMITTING TESTIMONY FROM THE PLAINTIFF'S EXPERT WITNESS THAT WAS BEYOND HIS QUALIFICATIONS AND AREA OF EXPERTISE AS AN EXPERT WITNESS.

"IV. THE TRIAL COURT ABUSED ITS DISCRETION BY QUESTIONING THE DEFENDANT JAMES ST. VINCENT AND ASSISTING THE PLAINTIFF IN BOTH PROVING ITS CASE IN CHIEF AND DEFENDING THE DEFENDANT'S COUNTERCLAIMS.

"V. THE TRIAL COURT ERRED AS A MATTER OF LAW BY ALLOWING THE JURY TO AWARD DAMAGES IN EXCESS OF THE [*5] PLAINTIFF'S PRAYER AND BEYOND ANY REASONABLE INTERPRETATION OF THE ADMITTED EVIDENCE."

At the outset, this court must determine whether the trial court's decision is a final, appealable order which vests this court with jurisdiction. Although not an issue raised by either party, this court must address, sua sponte, whether there is a final appealable order ripe for review. State ex rel. White vs. Cuyahoga Metro. Hous. Aut., 79 Ohio St. 3d 543, 544, 1997 Ohio 366, 684 N.E.2d 72.

Appellate courts have jurisdiction to review the final orders or judgments of lower courts within their appellate districts. Section 3 (B) (2), Article IV, Ohio Constitution. If a lower court's order is not final, then an appellate court does not have jurisdiction to review the matter and the matter must be dismissed. General Acc. Ins. Co. vs. Insurance of North America (1989), 44 Ohio St. 3d 17, 20, 540 N.E.2d 266; Harris v. Conrad (June 17, 2002), 12th Dist. No. CA-2001-12 108, 2002 Ohio 3885. For a judgment to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and if applicable, Civ. R. 54 (B). Denham v. New Carlisle (1999), 86 Ohio St. 3d 594, 596, 1999 Ohio 128, 716 N.E.2d 184; [*6] Ferraro v. B. F. Goodrich Co. (2002), 149 Ohio App. 3d 301, 2002 Ohio 4398, 777 N.E.2d 282.

R. C. 2505.02 (B) (1) provides an order: "that affects a substantial right in an action that in effect determines the action and prevents a judgment" is final and appealable. Civ. R. 54 (B) provides in relevant part: "When more than one claim for relief is presented in an action*** whether arising out of the same or separate transactions, *** the court may enter final judgment as to one or more but fewer than all the claims*** only upon expressed determination that there is no just cause for delay."

On January 7, 2003, the trial court filed a judgment entry adopting and memorializing the jury's verdict in the case at bar. While the jury's verdict and the judgment finds in favor of Kimble and against St. Vincent on the breach of contract, fraud and conversion claims and awards Kimble 2.1 million in compensatory damages and 2.9 million in punitive damages, the order fails to address the issue of attorney's fees.

The Judgment Entry, on its face, plainly indicated it was not a final order since it ordered that "the [*7] attorneys should communicate among themselves pertaining to the need for any further Evidentiary Hearing relative to the issue of Attorney's Fees to be awarded to plaintiff and against defendants James St. Vincent,***. Should a further Evidentiary Hearing be necessary, the attorneys should apprise the Court, in writing thereof. Should a further Evidentiary Hearing not be necessary and the attorneys prepared to stipulate the reasonableness of Attorneys Fees and the amount of same that should be communicated to the undersigned.

"FINDS that should a further Evidentiary Hearing be necessary relative to the issue of Attorneys Fees to be awarded to the plaintiff and against the defendants, the court will, by notice of Assignment after consultation with all attorneys, schedule same. Should no further Evidentiary Hearing be necessary, the court will decide the issue of Attorneys Fees and enter a final judgment relative to Attorney Fees and close the case file***"

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 [*8] the addition of Civ.R. 54(B) language. See Hitchings v. Weese (1997), 77 Ohio St. 3d 390, 391, 1997 Ohio 290, 674 N.E.2d 688, 689 (Resnick, J., Concurring): also see Horner v. Toledo Hosp. (1993), 94 Ohio App. 3d 282, 288-289, 640 N.E.2d 857, 861-862. A finding of "no just reason for delay" pursuant to Civ.R. 54(B) does not make appealable an otherwise nonappealable order. McCabe/Marra Co. v. Dover (1995), 100 Ohio App.3d 139, 160, 652 N.E.2d 236, 249; Cassim v. Cassim (1994), 98 Ohio App.3d 576, 579, 649 N.E.2d 28, 30; Palmer v. Westmeyer (1988), 48 Ohio App.3d 296, 302, 549 N.E.2d 1202, 1209.

"It is well-settled law that a judgment deferring final adjudication of a request for attorney fees is not a final appealable order. See, generally, Vannoy v. Capital Lincoln- Mercury Sales, Inc. (1993), 88 Ohio App.3d 138, 623 N.E.2d 177, fn. 4; Baker Indus. Equip., Inc. v. Osair, Inc., (Jan. 9, 1991), Summit App. No. 14704, unreported, 1991 WL 1994; Russ v. TRW, Inc., (Feb. 2, 1989), Cuyahoga App. No. 54973, unreported, 1989 WL 7960. This remains true even in those instances where such fees have been awarded but the adjudication of an amount has been deferred. See Pickens v. Pickens, (Aug. 27, 1992), Meigs App. No. 459, unreported, at 4, 1992 WL 209498; State, ex rel. Van Meter v. Lawrence Cty. Bd. of Commrs., (Aug. 25, 1992), Lawrence App. No. 91CA25, unreported, at 7, 1992 WL 208960; Baker v. Eaton Corp., (Dec. 10, 1990), Stark App. No. CA-8235, unreported, 1990 WL 200296." Ft. Frye Teachers Assn. v. Ft. Fyre Local School Dist. Bd. Of Edn. (1993), 87 Ohio App.3d 840, 843, 623 N.E.2d 232, 234.

The court's entry is not a final appealable order, this court lacks jurisdiction to rule on the assignments of error presented by appellant. Accordingly, the instant appeal is dismissed for want of jurisdiction.

By Gwin, P.J.,

Hoffman, J., and

Edwards, J., concur

For the reasons stated in our accompanying Memorandum-Opinion, the instant appeal is dismissed for want of jurisdiction and the case is remanded [*10] to the Tuscarawas County Court of Common Pleas. Costs to appellant.

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