[Cite as Vaughn Industries, L.L.C. v. LG Electronics, Inc., 2021-Ohio-1253.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

VAUGHN INDUSTRIES, LLC, ET AL. : JUDGES: 

 : Hon. John W. Wise, P.J. 

 Defendants/Third-Party Plaintiffs : Hon. Craig R. Baldwin, J. 

 Appellant : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

LG ELECTRONICS, INC. : Case No. 2019 CA 0113 

 : 

 Third-Party Defendant-Appellee : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 18-CV-686 

JUDGMENT: Dismissed 

DATE OF JUDGMENT: April 12, 2021 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

DAVID W. ORLANDINI PAUL SCHUMACHER 

655 Metro Place South, Suite 200 600 Superior Avenue East 

Dublin, OH 43017 Fifth Third Center, Suite 2330 

 Cleveland, OH 44114 

DAVID G. UTLEY 

520 South Main Street Suite 2551 RICHARD J. SILK, JR. 

Akron, OH 44311-1077 250 Civic Center Drive, Suite 280 

 Columbus, OH 43215 

DAVID T. ANDREWS 

3161 Neille Lane 
Richland County, Case No. 2019 CA 0113 2 

Twinsburg, OH 44087 

Wise, Earle, J.

{¶ 1} Appellants, Defendants/Third-Party Plaintiffs Vaughn Industries, LLC, et al 

(Vaughn) appeal the judgment of the Richland County Court of Common Pleas granting 

Appellee Third-Party Defendant LG Electronics U.S.A., Inc. (LG Electronics) motion to 

dismiss Vaughn's third-party complaint against LG. For the reasons that follow, we agree 

and dismiss Vaughn’s appeal. 

FACTS AND PROCEDURAL HISTORY 

{¶ 2} The parties agree upon the facts leading up to the trial court's dismissal of 

Vaughn's third-party complaint against LG Electronics as outlined below. 

{¶ 3} This matter involves a construction dispute between several parties. 

Plaintiffs are the Ohio Facilities Construction Commission and the Pioneer Career and 

Technology Center Board of Education ("OFCC" and "Pioneer" or collectively, 

"Plaintiffs"). OFCC is an agency of the State of Ohio formed by the general assembly to 

facilitate construction and reconstruction of educational buildings. Pioneer is an Ohio 

political subdivision which partnered with the OFCC to fund the local share of school 

building projects within the district. 

{¶ 4} In May 2010, the State of Ohio through Pioneer entered into a contract with 

Vaughn to serve as the heating, ventilation, and air conditioning system ("HVAC") 

contractor for the building of the Pioneer Career and Technology Center in Shelby, Ohio 

("The Project"). Ohio Farmers Insurance Company acted as surety for the Vaughn HVAC 

contract. As part of The Project, Vaughn contracted with Stoermer-Anderson to supply 

the HVAC system. Stoermer-Anderson then contracted with LG Electronics to 
Richland County, Case No. 2019 CA 0113 3 

manufacture and supply the specified HVAC system. Stroemer-Anderson then purchased 

the HVAC system from LG Electronics. 

{¶ 5} On October 2, 2018, Plaintiffs filed a complaint against Vaughn and Ohio 

Farmers Insurance. The complaint alleged Vaughn failed to perform and otherwise 

breached certain terms under its contract, breached express warranties, failed to correct 

defective materials and installations, failed to perform in a workmanlike manner, and/or 

otherwise failed to comply with the requirements of the contract documents. Included as 

part of the complaint was a claim for replacement of defective parts of the HVAC system 

manufactured by LG Electronics. OFCC and Pioneer sought damages for the 

replacement of the HVAC system and other consequential damages.

{¶ 6} On December 4, 2018, Vaugn answered the complaint and additionally filed 

a third-party complaint against LG Electronics. 

{¶ 7} On January 4, 2019, LG Electronics moved to dismiss Vaughn's third-party 

complaint pursuant to Civ.R. 12(B)(6), arguing the HVAC system was not a product under 

the Ohio Products Liability Act (OPLA). LG Electronics additionally moved to dismiss 

Vaughn's claims for indemnification arguing the economic loss doctrine barred such a 

claim. 

{¶ 8} On February 13, 2019, Vaughn filed an Amended Third-Party Complaint 

against Third-Party Defendants LG Electronics and Stoermer-Anderson. 

{¶ 9} On March 1, 2019, LG Electronics renewed its motion to dismiss all thirdparty claims against it including Vaughn's OPLA claim. Vaughn filed a memorandum in 

opposition on March 11, 2019, and LG Electronics filed a reply on August 7, 2019. 
Richland County, Case No. 2019 CA 0113 4 

{¶ 10} On October 31, 2019, the trial court granted LG Electronics' motion to 

dismiss Vaughn's amended complaint finding the HVAC system was a fixture and not a 

product as defined by OPLA, and that therefore Vaughn could prove no set of facts 

warranting relief under OPLA. The trial court further found no direct privity of contract 

between Vaughn and LG Electronics and therefore dismissed Vaughn's indemnification 

and contribution claims as barred by the Economic Loss Doctrine. 

{¶ 11} Vaughn filed an appeal. On December 12, 2019, LG Electronics filed a 

motion to dismiss Vaughn's appeal for lack of a final appealable order. Vaughn filed a 

reply on December 23, 2019. Both parties filed briefs and the matter is now before this 

court for consideration. Before we address Vaughn's assignments of error, however, we 

must first determine whether the matter is before us via a final appealable order. 

FINAL APPEALABLE ORDER ANALYSIS 

{¶ 12} When determining whether a judgment or order is final and appealable, an 

appellate court must first determine whether the order is final within the requirements of 

R.C. 2505.02. Then, if the order satisfies R.C. 2505.02, the court must determine whether 

Civ.R. 54(B) applies and, if so, whether the order contains a certification that there is no 

just reason for delay. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21, 540 

N.E.2d 266 (1989). " 'Civ.R. 54(B) does not alter the requirement that an order must be 

final before it is appealable.' " Id., quoting Douthitt v. Garrison, 3 Ohio App.3d 254, 255, 

44 N.E.2d 1068 (9th Dist.1981). 

{¶ 13} R.C. 2505.02(B) lists orders that are final and may be reviewed upon 

appeal. Here the germane section is (B)(1): 
Richland County, Case No. 2019 CA 0113 5 

(B) An order is a final order that may be reviewed, affirmed, modified, 

or reversed, with or without retrial, when it is one of the following: 

(1) An order that affects a substantial right in an action that in effect 

determines the action and prevents a judgment; 

* * * 

{¶ 14} Civ.R. 54(B) provides that "[w]hen more than one claim for relief is 

presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim," 

or when the action involves multiple parties, "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." "Thus, in multiple-claim or multiple-party actions, if 

the court enters judgment as to some, but not all, of the claims and/or parties, the 

judgment is a final appealable order only upon the express determination that there is no 

just reason for delay." In re Estate of L.P.B., 10th Dist. No. 11AP-81, 2011-Ohio-4656, ¶ 

9. While inserting the language of "no just reason for delay" in an entry is not a "mystical 

incantation which transforms a nonfinal order into a final appealable order," the language 

can "transform a final order into a final appealable order." Wisintainer v. Elcen Power 

Strut Co., 67 Ohio St.3d 352, 354, 617 N.E.2d 1136 (1993), citing Chef Italiano Corp. v. 

Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989). 

{¶ 15} Vaughn argues the decision on appeal is final because it "affects a 

substantial right in an action that in effect determines the action and prevents a 

judgment[.]" R.C. 2505.02(A)(1) defines a "substantial right" as one "that the United 

States Constitution, the Ohio Constitution, a statute, the common law, or a rule of 

procedure entitles a person to enforce or protect." "An order which affects a substantial 
Richland County, Case No. 2019 CA 0113 6 

right * * * [is] one which, if not immediately appealable, would foreclose appropriate relief 

in the future." (Citations omitted.) Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 

N.E.2d 181 (1993). 

{¶ 16} Vaughn argues the trial court’s order effectively precludes it from obtaining 

a judgment against LG and therefore, the trial court’s order determined the action and 

prevents a judgment between it and LG. In support of its argument, Vaughn cites Dywidag 

Sys. Internatl., USA, Inc. v. Ohio Dept. of Transp., 10th Dist. Franklin No. 10AP-270, 

2010-Ohio-3211. But Dywidag is factually distinguishable. 

{¶ 17} In Dywidag, DSI filed a third-party complaint against Insteel asserting claims 

for declaratory judgment, indemnity/contribution (which included a duty to defend), breach 

of contract, breach of good faith, unjust enrichment, and breaches of express and implied 

warranties. Id. at ¶ 4. The trial court subsequently granted summary judgment in favor of 

Insteel on certain claims and dismissed others under Civ.R. 12(B)(6) thereby dismissing 

DSI’s third-party complaint in its entirety. Id. at ¶ 5. The court of claims thereafter 

incorporated Civ.R. 54(B) language into its decision and DSI appealed only the claims at 

issue in its third-party complaint against Insteel. Id. at ¶ 6. Insteel moved to dismiss the 

appeal arguing the court of appeals lacked subject matter jurisdiction because indemnity 

claims are not appropriate for Civ.R. 54(B) certification. Id. at ¶ 7. 

{¶ 18} In denying Insteel’s motion to dismiss the appeal, the Dywidag court 

referenced the Ohio Supreme Court’s decision in Gen. Acc. Ins. Co. v. Ins. Co. of N. Am.,

where the Court concluded the duty to defend involved a “substantial right.” Gen. Acc. 

Ins. Co., 44 Ohio St.3d at paragraph one of the syllabus, 540 N.E.2d 266. The Dywidag 

court also referenced our decision in Kallaus v. Allen, 5th Dist. Licking No. 09-CA-0002, 
Richland County, Case No. 2019 CA 0113 7 

2009-Ohio-6339. In Kallaus, this Court dismissed an appeal for lack of jurisdiction 

concluding, "[w]here the duty to defend is not involved, we find whether the declaration is 

one finding coverage or not finding coverage does not change the analysis where the 

damages are still unresolved." (Emphasis added.) Id. at ¶ 11. Because DSI’s third-party 

complaint also alleged a duty to defend against Insteel, which is a "substantial right," the 

court denied Insteel’s Motion to Dismiss. Id. at ¶¶ 18, 34. 

{¶ 19} Dywidag and Kallaus also referenced the Ohio Supreme Court’s decision in 

Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221, 904 N.E.2d 863, wherein the 

Court found that a party entitled to insurance coverage without addressing the issue of 

damages did not affect a substantial right, despite the trial court’s inclusion of Civ.R. 54(B) 

language. Id. at ¶ 26.The Walburn court distinguished its decision from Gen. Acc. Ins. Co. 

on the basis that Walburn involved a declaration of coverage, but did not involve a duty

to defend, and a declaration an insured is entitled to coverage that does not address 

damages does not affect a substantial right as defined in R.C. 2505.02(A)(1). See Kallaus

at ¶ 10. 

{¶ 20} Here, Vaughn did not assert a claim in its third-party complaint that LG has 

a duty to defend it. It also makes no such allegation in its indemnity/contribution claim. 

Because Vaughn is not requesting that LG defend it in the present litigation, we conclude 

the trial court’s dismissal of Vaughn’s claim for indemnification/contribution did not result 

in a final order. See Nationwide Mut. Fire Ins. Co. v. M.B. Roofing Sys., Inc., 10th Dist. 

Franklin No. 12AP-44, 2012-Ohio-6195, where the trial court granted summary judgment 

in favor of a defendant on a cross-claim for indemnity or contribution while the issue of 

liability on the main claim remained unresolved. Id. at ¶11. The court of appeals ultimately 
Richland County, Case No. 2019 CA 0113 8 

concluded it lacked jurisdiction over the appeal because appellant would not be denied 

effective relief if the summary judgment decision was not subject to immediate review 

since appellant could seek review of the summary judgment order as part of any appeal 

from a final judgment on the main claim. Id. 

{¶ 21} Therefore, having concluded the indemnification/contribution claim is not a 

final order because it does not affect a substantial right and damages have not been 

determined, there is no need to analyze the second prong regarding whether the trial 

court’s inclusion of Civ.R. 54(B) language makes this an appealable order. 

{¶ 22} We next address Vaughn’s OPLA claim. "Generally, the question of whether 

an order is final and appealable turns on the effect which the order has on the pending 

action rather than the name attached to it, or its general nature." In re Murray, 52 Ohio 

St.3d 155, 157, 556 N.E.2d 1169 (1990). Here, the OPLA claim satisfies the definition of 

a "substantial right" because it involves the enforcement of product liability statutory 

rights, R.C. 2307.71 et seq., which were also previously recognized at common law. 

McAuliffe v. W. States Import Co., Inc., 72 Ohio St.3d 534, 538, 651 N.E.2d 957 (1995). 

Having found the OPLA claim satisfies the definition of a "substantial right," we must next 

determine whether the trial court’s dismissal of the OPLA claim affects a substantial right. 

"[A]n order affects a substantial right only if an immediate appeal is necessary to protect 

the interests of the appealing party." Thomasson v. Thomasson, 153 Ohio St.3d 398, 

2018-Ohio-2417, 106 N.E.3d 1239, ¶ 23. 

{¶ 23} This Court explained in Meier v. Meier, 5th Dist. Fairfield No. 16-CA-42, 

2017-Ohio-1109, ¶ 12: 
Richland County, Case No. 2019 CA 0113 9 

An "order which affects a substantial right has also been interpreted 

to be one which, if not immediately appealable, would foreclose

appropriate relief in the future." State v. Shaffer, 8th Dist. Cuyahoga 

No. 87552, 2006-Ohio-5563, Bell v. Mt. Sinai Med. Ctr., 67 Ohio 

St.3d 60, 616 N.E.2d 181 (1993). To establish an order affects a 

substantial right, the appellant must establish that, in the absence of 

immediate review of the order, he or she will be denied effective relief 

in the future. Id. 

{¶ 24} Here, an immediate appeal is not necessary to protect Vaughn’s right to 

assert an OPLA claim against LG in the future. Rather, Vaughn’s right to recover against 

LG on its OPLA claim is contingent on OFCC first recovering against Vaughn. If OFCC 

proves its claims against Vaughn and recovers damages, Vaughn could thereafter appeal 

the trial court’s decision dismissing its OPLA claim against LG. However, if OFCC fails to 

prove its claims against Vaughn then Vaughn’s OPLA claim against LG is moot. Thus, 

Vaughn’s OPLA claim against LG remains viable in the future absent an immediate 

appeal because even though Vaughn’s OPLA claim is a substantial right, the trial court’s 

decision dismissing this claim did not affect this substantial right. Having concluded the 

trial court’s dismissal of Vaughn’s OPLA claim did not affect a substantial right, as with 

the indemnity/contribution claim, we will not address the effect of the trial court’s inclusion 

of Civ.R. 54(B) language as applied to the OPLA claim. 
Richland County, Case No. 2019 CA 0113 10 

{¶ 25} For these reasons, the judgment entry appealed from is not a final 

appealable order and we are without jurisdiction to address Vaughn's appeal. We 

therefore grant LG’s Motion to Dismiss Appeal. 

By Wise, Earle, J. 

Wise, John, P.J. and 

Baldwin, J. concur. 

EEW/