Opinion
No. 77-123
Decided December 21, 1977.
Appropriation of property — Award of compensation — Appeal therefrom improperly dismissed, when — Civ. R. 54(B) — Applicability.
APPEAL from the Court of Appeals for Cuyahoga County.
On August 28, 1973, the Board of County Commissioners of Cuyahoga County (the board) filed a complaint for the appropriation of property owned by the Tilby Development Company (appellant herein) pursuant to R.C. 163.05. In its complaint, the board joined as parties defendant George V. Voinovich, Cuyahoga County Auditor, and Frank M. Brennan, Cuyahoga County Treasurer. Accompanying its complaint, the board, pursuant to R.C. 163.06(B), deposited with the clerk of the Probate Court the sum of $32,472, representing the value of the property to be appropriated as determined by the board.
Appellant filed an answer specifically denying that the amount of the board's deposit represented the fair value of the property. On September 17, 1973, the defendant county treasurer filed a cross-complaint requesting that the court grant him a first lien on the property for tax assessment purposes prior to the transfer of title to the appropriating authority.
Pursuant to R.C. 163.06(C), appellant applied to the court for withdrawal of the deposit. In authorizing the withdrawal on October 29, 1973, the court found that taxes for the year 1972 had been paid, and that properties remaining in the possession of the appellant after the appropriation would be sufficient to cover all future claims involving taxes and other assessments.
Trial was had before a jury to determine the compensation to be awarded the property owner, pursuant to Section 19, Article I, of the Ohio Constitution and R.C. 163.14. In the instant cause, the jury assessed the compensation and damages for the appropriated property at $53,600, which amount was confirmed and awarded to the appellant by the court in its judgment journalized on July 17, 1975.
Appellant subsequently filed a motion for new trial on the basis that the Probate Court erred in overruling a motion to strike the testimony of the board's valuation witness. The motion was overruled on August 18, 1975.
An appeal taken to the Court of Appeals was subsequently dismissed upon application of Civ. R. 54(B). The appellate court rendered no opinion in support of that judgment.
Civ. R. 54(B) provides:
"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, 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 such determination, 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."
The cause is now before this court upon the allowance of a motion to certify the record.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Stephen E. DeJohn, for appellees.
Messrs. Merkel, Campbell, Dill Zetzer, Mr. Michael T. Gavin, Mr. Eli Manos, Messrs. Carney, Carney Broadbent and Mr. Howard W. Broadbent, for appellant.
The issue in the instant cause is whether appellant could appeal the judgment of the Probate Court confirming the award of compensation determined by the jury. Civ. R. 58 provides:
"Subject to the provisions of Rule 54(B), upon a general verdict of a jury, or upon a decision announced, the court shall promptly cause the judgment to be prepared and, the court having signed it, the clerk shall thereupon enter it. A judgment is effective only when filed with the clerk for journalization. * * *"
Civ. R. 54(A) defines "judgment" as "a decree and any order from which an appeal lies."
Thus, in the situation where Civ. R. 54(B) is inapplicable, the Civil Rules formally require that before a party may appeal a decree or any order rendered by the lower court, the law of Ohio must permit the appeal, and the decree or order must be signed by the court and filed with the clerk for journalization.
However, in the situation where Civ. R. 54(B) is applicable, the Civil Rules provide that the appeal from a decree or any order cannot be made unless there also is an express determination made by the court in its journal entry that there is no just reason for delay in entering a final order from which an appeal may be taken.
In the instant cause, the Probate Court rendered a judgment confirming the award determined by the jury and ordering distribution of the amount to the appellant. The court signed the judgment entry and filed it with the clerk for journalization. The court made no express determination in its entry that there was no just reason for delay in entering a final, appealable order. Thus, absent the possible application of Civ. R. 54(B), the judgment entered by the Probate Court met all the formal requirements of the Civil Rules upon which appeal could be taken.
We therefore are confronted with the issue of whether Civ. R. 54(B) applies in the present proceedings. Civ. R. 54(B) applies in those situations where, on the one hand, there is more than one claim for relief presented or multiple parties involved in an action, and where, on the other hand, the lower court has rendered a partial judgment with respect to one of the parties, or one of the claims. The purposes of the rule are "to make a reasonable accommodation of the policy against piecemeal appeals with the possible injustice sometimes created by the delay of appeals" ( Alexander v. Buckeye Pipe Line, 49 Ohio St.2d 158, 160), as well as to insure that parties to such actions may know when an order or decree has become final for purposes of appeal (Staff Note to Civ. R. 54[B]).
In reviewing the procedural history of this cause, we find that although there was a cross-complaint filed by the county treasurer requesting a first lien on appellant's property, this issue was specifically disposed of in the Probate Court's journal entry dated October 29, 1973. In the entry of judgment, the court found that the interests of the county were adequately protected irrespective of the property to be appropriated. Thus, at the time the jury determined the amount of compensation to be awarded the property owner, there was only one party defendant, the appellant, and one issue, the proper valuation of the property to be appropriated. Clearly, the specific provisions and purposes of Civ. R. 54(B) indicate that the rule is inapplicable to the appeal brought by the appellant in this cause.
Because the Court of Appeals improperly applied Civ. R. 54(B), the judgment dismissing the appeal is reversed, and the cause is remanded to that court for a hearing on the merits.
Judgment reversed.
O'NEILL, C.J., HERBERT, CELEBREZZE, MCCORMAC, P. BROWN and SWEENEY, JJ., concur.
LOCHER, J., not participating.
MCCORMAC, J., of Tenth Appellate District, sitting for W. BROWN, J.