Zimmerman v. Dinapoli, (Ohio 2005)

Summary

---

APPELLATE REVIEW - denial of summary judgment is not final appealable order; Civ.R. 54(B).

Summary

---

APPELLATE REVIEW - denial of summary judgment is not final appealable order; Civ.R. 54(B).

Text

---

[Cite as Zimmerman v. Dinapoli, 2005-Ohio-937.]

COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

KENNETH ZIMMERMAN, : MEMORANDUM OPINION

Plaintiff-Appellee, :

CASE NO. 2004-L-204

-vs- :

JOHN R. DINAPOLI, II, et al., :

Defendants, :

NATIONWIDE MUTUAL INSURANCE CO.,

Intervenor-Appellant.

Civil Appeal from the Court of Common Pleas, Case No. 03 CV001649.

Judgment: Appeal dismissed.

Michael J. Monteleone, 1650 Midland Building, 101 Prospect Avenue, West, Cleveland, OH 44115 (For Plaintiff-Appellee).

Richard A. DiLisi, Lakeside Place, #410, 323 Lakeside Avenue, West, Cleveland, OH 44113 (For Intervenor-Appellant). .

COLLEEN MARY O'TOOLE, J.

On December 8, 2004, appellant, Nationwide Mutual Insurance Company, filed a notice of appeal from a November 10, 2004 judgment of the Lake County Court

- 1 -

of Common Pleas. In that judgment, the trial court denied appellant's motion for summary judgment, but stated that "[t]here is no just reason for delay."

It is well established that the denial of a motion for summary judgment is not a final appealable order. State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d

23.

The denial of a motion for summary judgment is always reviewable on an appeal from a subsequent final judgment. Sagenich v. Erie Ins. Group (Dec. 12, 2003), 11th Dist. No. 2003-T-0144, 2003 Ohio App. LEXIS 5991, ¶ 3.

Additionally, an order that is not final cannot be rendered final merely by adding Civ.R. 54(B) language. Noble v. Colwell (1989), 44 Ohio St.3d 92, 96; Fireman's Fund Ins. Cos. v. BPS Co. (1982), 4 Ohio App.3d 3, 4.

Accordingly, the trial court's addition of Civ.R. 54(B) language did not make the otherwise nonfinal order final in this case. Appellant can appeal the trial court's decision once it renders a final appealable order.

Based upon the foregoing analysis, this appeal is hereby sua sponte dismissed for lack of a final appealable order.

Appeal dismissed.

DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., concur.

- 2 -

---