Summary
holding that "a party may seek Civ.R. 60(B) relief only from a final judgment"
Summary of this case from Heinrichs v. 356 Registry, Inc.Opinion
No. 85-567
Decided December 4, 1985.
O.Jur.3d Judgments §§ 40, 43, 45, 53.
Civil procedure — Order vacating a judgment entered against less than all the parties not a final, appealable order — Civ. R. 54(B).
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.
APPEAL from the Court of Appeals for Montgomery County.
Plaintiff-appellant, Mary A. Jarrett, as executrix for the estate of her husband, William G. Jarrett, filed a wrongful death action against Dayton Osteopathic Hospital, Inc. ("the hospital"), James P. Cleary, D.O., and Thomas Mucci, D.O. On September 20, 1984, the arbitration panel found against all defendants and awarded Jarrett $250,000. To reject the arbitration report and award, defendants Cleary and the hospital filed amended pleadings within the thirty-day period allowed by the Court of Common Pleas of Montgomery County Local Rule 2.55(O)(1). On October 23, 1984, one day after the thirty-day period ended, the trial court entered judgment against Mucci for the entire award of $250,000.
On October 24, 1984, Mucci filed his amended answer, rejecting the arbitration report and award. One week later he filed a motion, labeled a Civ. R. 60(B) motion for relief from judgment, based on mistake, inadvertence, surprise, or excusable neglect. The trial court granted this motion and vacated the judgment on December 12, 1984.
The court of appeals dismissed Jarrett's appeal for lack of jurisdiction on grounds that the trial court's order vacating the judgment was not a final, appealable order. The appellate court reconsidered its decision upon Jarrett's request but determined that the appeal was properly dismissed.
This cause is now before this court pursuant to the allowance of a motion to certify the record.
Lang, Horenstein Dunlevey, Wilbur S. Lang, Carmine Garofalo and Robert M. O'Neal, for appellant.
Wiles, Doucher, Van Buren, Boyle Casey Co., L.P.A., Daniel G. Wiles and W. Charles Curley, for appellee.
The trial court's entry of judgment against Mucci was not a final order. When an order "adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties [it] shall not terminate the action * * * and the order * * * 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." Civ. R. 54(B). An entry of judgment involving fewer than all of the claims or parties is not final unless the court expressly determines that there is "no just reason for delay." Id.
Because the judgment entry against Mucci did not adjudicate the liabilities of all the parties and it did not contain the Civ. R. 54(B) words of "no just reason for delay," it was subject to modification. Mucci's motion for relief was improperly labeled a Civ. R. 60(B) motion because it did not seek relief from a final judgment. The motion and the trial court's order vacating the judgment were instead authorized by Civ. R. 54(B).
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.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, CONNORS and DOUGLAS, JJ., concur.
CONNORS, J., of the Sixth Appellate District, sitting for C. BROWN, J.