[Cite as Demsey v. Sheehe, 2014-Ohio-2409.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100693 

KENNETH JAMES DEMSEY

 PLAINTIFF-APPELLANT

vs. 

 LAWRENCE G. SHEEHE, JR., ETC., ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: 

DISMISSED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-12-782829 

BEFORE: Jones, P.J., Keough, J., and McCormack, J. 

RELEASED AND JOURNALIZED: June 5, 2014 
ATTORNEY FOR APPELLANT 

Robert Troll Lynch 

35253 Maplegrove 

Suite 102 

Willoughby, Ohio 44094

ATTORNEY FOR APPELLEE 

S. Robert E. Lazzaro 

Costanzo & Lazzaro 

13317 Madison Avenue 

Lakewood, Ohio 44107 

 
LARRY A. JONES, SR., P.J.: 

{¶1} Plaintiff-appellant Kenneth Demsey appeals the trial court’s decision to 

dismiss his complaint. For the reasons that follow, we dismiss the appeal for lack of a 

final, appealable order. 

{¶2} In May 2012, Demsey filed a pro se complaint against defendant-appellee, 

Lawrence Sheehe, Jr., executor of the estate of Louise Demsey (“the estate”). Louise, 

Demsey’s mother, died in June 2010. Four of Louise Demsey’s other children were also 

named as defendants in the complaint, but Demsey eventually dismissed the complaint 

against them. 

{¶3} Demsey alleged that he was owed $280,000 for “healthcare and personal 

services” he had provided for his mother before she died; $23,000 he loaned her to pay 

taxes, insurance, utilities, and maintenance on her home; and $9,968 for her funeral 

expenses. 

{¶4} The estate filed an answer and counterclaim. In its counterclaim, the estate 

alleged that Demsey misappropriated his mother’s funds and owed rent for the time he 

lived at his mother’s residence and for damages he caused to the property. The estate 

requested damages exceeding $25,000. 

{¶5} The trial court dismissed Demsey’s complaint against the estate with 

prejudice: 

This court finds that Plaintiff has failed to fully comply with the court’s 

9/9/13 order and thus dismisses the case with prejudice at plaintiff’s costs. 

Plaintiff’s complaint is hereby dismissed with prejudice. Court costs 

assessed to the plaintiff(s). 
{¶6} Demsey filed his notice of appeal, indicating he was appealing the trial court’s 

judgment dismissing his complaint with prejudice.1

 

{¶7} Demsey raises one assignment of error for our review: 

[I.] The lower court erred in ordering the overly severe sanction of dismissal 

which violates both Ohio and federal constitutional law. 

{¶8} As an initial matter, we must determine whether the trial court’s order 

dismissing Demsey’s complaint was a final, appealable order. We find that it is not. 

{¶9} Courts of appeals have jurisdiction over “final orders” of lower courts. Section 

3(B)(2), Article IV of the Ohio Constitution. “An order is a final order that may be 

reviewed, affirmed, modified, or reversed, with or without retrial,” when it “affects a 

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

 R.C. 2505.02(B)(1). 

{¶10} An order that adjudicates one or more but fewer than all the claims or the 

rights and liabilities of fewer than all the parties must meet the requirements of both R.C. 

2505.02 and Civ.R. 54(B) in order to be final and appealable. Noble v. Colwell, 44 Ohio 

St.3d 92, 540 N.E.2d 1381 (1989), syllabus; Chef Italiano Corp. v. Kent State Univ., 44 

Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus. Pursuant to Civ.R. 54(B), “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.” 

{¶11} In its order dismissing Demsey’s complaint with prejudice, the trial court did 

 1

 Demsey also filed a motion for relief from judgment pursuant to Civ.R. 60(B), which the 

trial court denied. 
not indicate that there was no just reason for delay. See, e.g., Castrovinci v. Habeeb, 8th 

Dist. Cuyahoga No. 94511, 2010-Ohio-6022, ¶ 7; Compare Portco, Inc. v. Eye Specialists, 

Inc., 173 Ohio App.3d 108, 2007-Ohio-4403, 877 N.E.2d 709 (4th Dist.) (no final, 

appealable order even though court included Civ.R. 54(B) language because the 

counterclaims touched on the same facts, legal issues, and circumstances as the pending 

claims). 

{¶12} More importantly, the estate’s counterclaims remain pending: the estate 

neither voluntarily dismissed its counterclaim nor did the trial court dismiss or otherwise 

dispose of the counterclaim. 

{¶13} Without a final, appealable order, we lack jurisdiction to review the matter 

and must dismiss the case; accordingly, the appeal is dismissed for lack of a final, 

appealable order. See Mayfield v. Flagg, 8th Dist. Cuyahoga No. 97637, 

2012-Ohio-1957, ¶ 3 (appeal dismissed for lack of final, appealable order because trial 

court’s order did not dispose of counterclaim nor did it contain Civ.R. 54(B) language). 

{¶14} Accordingly, the appeal is dismissed and the matter is remanded for further 

proceedings consistent with this opinion. 

It is ordered that appellees recover of appellant costs herein taxed. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

 

 
LARRY A. JONES, SR., PRESIDING JUDGE 

KATHLEEN ANN KEOUGH, J., and 

TIM McCORMACK, J., CONCUR