[Cite as Arms Trucking Co. v. Fed. Natl. Mtge. Assn., 2013-Ohio-5192.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

GEAUGA COUNTY, OHIO 

ARMS TRUCKING CO., INC., : MEMORANDUM OPINION

 Plaintiff-Appellee, :

CASE NO. 2013-G-3149

 - vs - :

FEDERAL NATIONAL MORTGAGE :

ASSOCIATION a.k.a. FANNIE MAE, et al.,

 Defendants, :

ARTHUR BRAUN, et al., :

 Defendants-Appellants. :

Civil Appeal from the Geauga County Court of Common Pleas, Case No. 12 M 823. 

Judgment: Appeal dismissed. 

Robert K. McIntyre and Jay R. Carson, Wegman, Hessler & Vanderburg, 6055 

Rockside Woods Boulevard, Suite 200, Cleveland, OH 44131 (For Plaintiff-Appellee). 

Katherine M. Braun, 820 W. Superior Ave., Suite 100, Cleveland, OH 44113 (For 

Defendants-Appellants). 

CYNTHIA WESTCOTT RICE, J. 

{¶1} Appellants, Arthur Braun and Audrey Braun, appeal the judgment entered 

by the Geauga County Court of Common Pleas denying their Civ.R. 60(B) motion for 

relief from judgment. For the reasons that follow, this appeal is dismissed for lack of a 

final, appealable order. 
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{¶2} In August 2013, appellee, Arms Trucking Co. Inc., filed a complaint 

against five defendants, including appellants, for injunctive and declaratory relief. In 

October 2012, appellants filed their answer and counterclaim. Between November and 

December 2012, Arms Trucking voluntarily dismissed all defendants other than 

appellants. 

{¶3} Thereafter, in December 2012, Arms Trucking filed a motion to dismiss 

appellants’ counterclaim. At that time, the only claims remaining were Arms Trucking’s 

claim against appellants and appellants’ counterclaim against Arms Trucking. 

{¶4} On January 18, 2013, the trial court entered judgment granting Arms 

Trucking’s motion and dismissing appellants’ counterclaim. The court’s entry did not 

include a determination pursuant to Civ.R. 54(B) that there is no just reason for delay. 

Following the trial court’s dismissal of appellants’ counterclaim, Arms Trucking’s claim 

against appellants remained pending. 

{¶5} About ten days later, on January 29, 2013, appellants filed a motion for 

relief from the trial court’s judgment dismissing their counterclaim. Arms Trucking filed a 

brief in opposition. On May 1, 2013, the trial court entered judgment denying 

appellants’ motion for relief from judgment. Appellants appeal the trial court’s judgment 

denying that motion. 

{¶6} It is well settled that a court of appeals may only entertain appeals from 

final judgments or orders. J.P. Morgan Mortg. Acquisition Corp. v. Medvec, 11th Dist. 

Geauga No. 2009-G-2915, 2009-Ohio-6706, ¶4. According to Section 3(B)(2), Article IV 

of the Ohio Constitution, an appellate court can review a judgment of a trial court only if 

it constitutes a “final order” in the action. Germ v. Fuerst, 11th Dist. Lake No. 2003-L-
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116, 2003-Ohio-6241, ¶3. If a trial court’s order is not final, then an appellate court does 

not have jurisdiction to review the matter and the appeal must be dismissed. Gen. Acc. 

Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20 (1989). 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, 86 Ohio St.3d 594, 596 (1999). 

{¶7} R.C. 2505.02(B)(1) provides an order “[t]hat affects a substantial right in 

an action that in effect determines the action and prevents a judgment” is final and 

appealable. Further, Civ.R. 54(B) provides, in relevant part: “When more than one claim 

for relief is presented in an action whether as a claim [or] counterclaim * * *, and 

whether arising out of the same or separate transactions, * * * the court may enter final 

judgment as to one or more but fewer than all of the claims * * * only upon an express 

determination that there is no just reason for delay.” 

{¶8} In the instant case, the trial court’s judgment of January 18, 2013 

dismissing appellants’ counterclaim was not a final order because it did not dispose of 

all the claims in the action and it did not make an express determination that there is no 

just reason for delay. 

{¶9} Moreover, appellants were not entitled to relief from judgment pursuant to 

Civ.R. 60(B) because that rule only allows the trial court to relieve a party from a final

order or judgment. Pine Ave. Commerce Park, Inc. v. Jarvis, 11th Dist. Trumbull No. 

2001-T-0143, 2002-Ohio-6699, ¶13; Harter v. Wadsworth-Rittman Hosp., 64 Ohio 

App.3d 26, 30 (9th Dist.1989), appeal dismissed at 47 Ohio St.3d 715. For example, in 

Harter, supra, the Ninth District held that a court may not grant a party relief from a 

summary judgment under Civ.R. 60(B) before the summary judgment becomes a final 
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order. Moreover, in Coleman v. Coleman, 2d Dist Clark No. 2003 CA 39, 2004-Ohio1018, the Second District held that magistrate orders regarding child support and 

custody entered in divorce proceedings that were not adopted by the trial court were not 

final judgments from which relief could be granted under Civ.R. 60(B). Id. at ¶13. 

{¶10} Further, a judgment granting or denying a motion to vacate an earlier 

judgment that was not a final order is likewise not a final order. Lee v. Joseph Horne 

Co., Inc., 99 Ohio App.3d 319, 323 (8th Dist.1995); Matrka v. Stephens, 77 Ohio App.3d 

518, 521-522 (10th Dist.1991). In Lee, supra, the Eighth District held that a judgment 

vacating an earlier judgment that did not adjudicate the liabilities of all parties or include 

Civ.R. 54(B) language was itself an interlocutory order, rather than a final, appealable 

order. Id., citing Jarrett v. Dayton Osteopathic Hosp., Inc., 20 Ohio St.3d 77 (1985), 

syllabus. 

{¶11} Since the January 18, 2013 judgment dismissing appellants’ counterclaim 

was not a final order, Civ.R. 60(B) does not apply, and the May 1, 2013 judgment 

denying appellants’ motion for relief from the earlier judgment was itself interlocutory 

and not a final order. As a result, the trial court has not yet entered a final order in this 

matter. 

{¶12} Accordingly, the instant appeal is dismissed, sua sponte, for lack of 

jurisdiction. 

{¶13} We note that, after the parties filed their respective briefs on appeal, this 

court reviewed the status of this case. Based on the information available to this court 

at that time, it appeared that the trial court may not have entered a final order. As a 

result, on September 4, 2013, this court entered an order requiring appellants to show 
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cause why the case should not be dismissed for lack of a final, appealable order. In 

response, appellants filed a “Statement in Opposition to Jurisdiction and Memorandum 

of Arthur and Audrey Braun, Defendants-Appellants.” In this “Statement,” appellants 

conceded that neither the judgment dismissing their counterclaim nor the judgment 

vacating that earlier judgment is a final, appealable order. They do not, however, 

explain why they filed this appeal without the trial court having entered a final judgment; 

why they did not timely dismiss the appeal; why they allowed this appeal to remain 

active on this court’s docket so long that Arms Trucking was required to prepare and file 

its answer brief; and why they still have not dismissed this appeal. 

{¶14} Instead, in the body of their Statement, appellants request that this court 

dismiss their appeal and remand this matter with “instructions” to the trial court to 

“reconsider” their motion for relief from judgment. They further request that, since they 

filed this appeal prematurely, if it becomes necessary for them to again appeal the trial 

court’s judgment, they be allowed to file another appeal at no cost to them. 

{¶15} Initially, we note these requests were not made by way of a motion, as 

required by App.R. 15(A), thus depriving Arms Trucking of an opportunity to respond to 

them. As a result, these requests are not properly before us and, for this reason alone, 

lack merit. In any event, even if these requests were properly presented, they would 

still lack merit. First, since the trial court’s dismissal of appellants’ counterclaim was not 

a final order, appellants are not entitled to relief from that judgment. Further, although 

appellants concede this appeal should be dismissed, they have not cited any precedent 

that would authorize us to grant them leave to file another appeal at some unspecified 

time on some speculative ground in the future, let alone to do so without cost. 
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{¶16} For the reasons stated in the opinion of this court, appellants’ assignment 

of error is moot. It is the judgment and order of this court that the appeal is dismissed. 

THOMAS R. WRIGHT, J., concurs, 

COLLEEN MARY O’TOOLE, J., concurs in judgment only.