[Cite as Hamilton v. Barth, 2021-Ohio-601.] 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

FRED B. HAMILTON, 

 Plaintiff-Appellant, 

 vs. 

DOROTHY F. BARTH, 

 and 

ANDREW BARTH, Guardian of the 

Person and Estate of Louis E. Barth, 

 Defendants-Appellees. 

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APPEAL NO. C-200027 

TRIAL NO. A-1805754 

 

 O P I N I O N.

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Appeal Dismissed 

Date of Judgment Entry on Appeal: March 5, 2021 

James L. Nieberding, for Plaintiff-Appellant, 

Donald J. Meyer, Jr., for Defendants-Appellees. 
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ZAYAS, Presiding Judge. 

{¶1} Plaintiff-appellant Fred B. Hamilton brings this appeal to challenge 

the trial court’s grant of summary judgment in favor of defendants-appellees 

Dorothy Barth and Andrew Barth, as guardian of the person and estate of Louis E. 

Barth (“the Barths”). The trial court’s grant of summary judgment disposed of all the 

claims contained within plaintiff’s complaint. However, the entry failed to dispose of 

the counterclaim asserted by the defendants and failed to include the language 

required by Civ.R. 54(B) to make the entry a final appealable order. Therefore, we 

cannot reach the merits of Hamilton’s assignment of error because we lack 

jurisdiction to hear this appeal. 

Background and Procedural History 

{¶2} On October 23, 2018, Hamilton filed a complaint for breach of 

contract, specific performance, and declaratory judgment against Louis E. Barth and 

Dorothy F. Barth, who are the record owners of two parcels of land in Hamilton 

County.1 The complaint alleged that Louis and Dorothy Barth executed a land 

contract with Hamilton for purchase of the two parcels of land, but never delivered 

possession of the land or performed under the contract. The first parcel of land 

consists of 63.57 acres in Harrison Township and the second parcel consists of 3.38 

acres in Whitewater township. Both parcels together are known and designated as 

6555 Brooks Road. 

{¶3} On November 07, 2018, counsel for defendants filed a motion to 

substitute Andrew L. Barth as a party defendant in place of Louis E. Barth. In 

 1 On February 8, 2021, counsel for the Barths filed a suggestion of death indicating that Louis 

Barth died on February 7, 2021, while this appeal was pending. No motion for substitution of a 

personal representative has been filed. If there is no representative, then the proceedings shall be 

had as the court of appeals may direct. See App.R. 29(A). Despite the suggestion of death, we 

direct that this appeal proceed and be determined as if Louis Barth was not deceased. 
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support of their motion, the Barths asserted that Louis Barth had been declared 

incompetent by the Hamilton County Probate Court on October 17, 2018, and that 

Andrew Barth had been appointed as guardian over his person and his estate. The 

trial court entered an agreed order granting the motion on November 14, 2018. 

{¶4} On November 21, 2018, the Barths filed their answer to Hamilton’s 

complaint and asserted a counterclaim against Hamilton for slander of title. The 

counterclaim was based on a document filed by Hamilton in the Hamilton County 

Recorder’s Office entitled “Affidavit of Facts Relating to Title to Real Property,” in 

which he asserts a claim of interest in the property by virtue of the land contract. 

Hamilton filed a response to the counterclaim on December 4, 2018. 

{¶5} On September 18, 2019, the Barths filed a motion for summary 

judgment on plaintiff’s complaint. In their summary-judgment motion, the Barths 

asserted there was no genuine issue of material fact and that the contract was invalid 

as a matter of law. Attached to the motion was an affidavit of Dorothy Barth and 

other supporting documentation. 

{¶6} In her affidavit, Ms. Barth avers that she and her husband Louis are 

the record owners of two parcels of land in Hamilton County, the first of which is 

valued by the Hamilton County Auditor at $421,570 and the second at $36,900. In 

April of 2018, they were approached by Hamilton about buying this land. In May of 

2018, Hamilton presented a land contract to them proposing to pay $55,000 for both 

parcels. The contract was prepared by Hamilton’s attorney. She and her husband 

signed the contract, but it was never notarized. Hamilton also gave them $500; 

however, they returned the payment to Hamilton on May 18. On June 5, they 

received a letter from Hamilton’s attorney which contained a check for $500 that 

was identified as the June payment under the contract. On June 15, their attorney 
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sent a letter to Hamilton’s attorney returning the June payment and claiming that 

the contract was unenforceable. 

{¶7} On September 30, 2019, Hamilton filed a memorandum in opposition 

to the motion for summary judgment. In the memorandum, Hamilton asserted that 

the contract was valid and enforceable, and attached an affidavit and other 

supporting documentation. 

{¶8} In his affidavit, Hamilton asserts the same facts as Ms. Barth, adding 

that the terms of the contract were agreed upon during the April 2018 discussion and 

were as follows: (1) $55,000 contract price, (2) $500 down payment due at time of 

execution of contract, (3) $500 per month from June 2018 through May 2025, and 

(4) a final balloon payment of the remaining balance of $13,000 in May 2025. His 

attorney prepared the contract accordingly. 

{¶9} On October 07, 2019, the Barths filed a reply in support of their 

motion for summary judgment. They attached a supplemental affidavit of Dorothy 

Barth, in which she supplemented the following information: (1) she is 72 and her 

husband is 77, (2) after signing the contract, her son visited their home on Mother’s 

Day and saw an unsigned copy of the contract, (3) her son questioned why they 

would consider selling the land for such a low price and she told him they were not 

yet obligated to sell the property because they had not gone to the bank to have their 

signatures notarized, (4) she then decided not to sell the property, (5) she called 

Hamilton the next day and told him they did not want to sell the property because 

they were being cheated, and (5) Hamilton then came to their house around May 18 

to accept the check returning his $500 payment. 

{¶10} On December 27, 2019, the trial court entered an order granting the 

Barths’ motion for summary judgment, stating its reasoning as, “Both Plaintiff and 
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Defendants have acknowledged that the document was never notarized as required 

by R.C. 5301.01(A).” This appeal followed. 

Lack of a Final Appealable Order 

{¶11} Before we reach the merits of this appeal, we must determine whether 

the entry constitutes a final, appealable order. The Ohio Constitution limits our 

review to the review of final orders. See Ohio Constitution, Article IV, Section 

3(B)(2). If the order is not final and appealable, this court lacks jurisdiction and we 

must dismiss the appeal. If the parties do not raise the jurisdictional issue, we are 

required to raise it sua sponte. In re I.B., 1st Dist. Hamilton No. C-120116, 2012-

Ohio-4547, ¶ 4, citing Hooten v. Safe Auto Ins. Co., 1st Dist. Hamilton No. C-061065, 

2007-Ohio-6090, ¶ 10. 

{¶12} An order is final and appealable only if it meets the requirements of 

both R.C. 2505.02 and, if applicable, Civ.R. 54(B). State ex. rel. Scruggs v. Sadler, 

97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5, citing Chef Italiano Corp. v. 

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

{¶13} When a case involves multiple claims, Civ.R. 54(B) must be followed. 

Sadler at ¶ 8. Civ.R. 54(B) provides: 

When more than one claim for relief is presented in an action whether 

as a claim, counterclaim, cross-claim, or third-party claim, and 

whether arising out of the same or separate transactions, or when 

multiple parties are involved, the court may enter final judgment as to 

one or more but fewer than all the claims or parties only upon the 

express determination that there is no just reason for delay. 

(Emphasis added.) 
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{¶14} “An entry of judgment involving fewer than all claims or parties is not 

a final, appealable order unless the court expressly determines that there is ‘no just 

reason for delay.’ ” Berardo v. Felderman-Swearingen, 1st Dist. Hamilton No. C190515, 2020-Ohio-3098, ¶ 12, citing Chef Italiano Corp. at 88. Use of this language 

is mandatory. Id., citing Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 

(1989). 

{¶15} Here, the Barths moved for summary judgment on the claims 

contained within Hamilton’s complaint and the trial court granted the motion in 

their favor. The entry from the court states: 

This case came before the Court upon Defendant’s Motion for 

Summary Judgment. The Court having reviewed the pleadings and 

documents herein finds the motion to [sic] well taken and is therefore 

GRANTED. Both Plaintiff and Defendant have acknowledged that the 

document was never notarized as required by R.C. 5301.01(A). 

Accordingly, the trial date is VACATED. SO ORDERED. 

{¶16} The entry failed to address the outstanding counterclaim against 

Hamilton, and thus failed to dispose of all the claims within the case. Additionally, 

the entry does not include the language required by Civ.R. 54(B) that there is no just 

reason for delay. Therefore, the judgment entry is not a final appealable order and 

we must dismiss this appeal for lack of jurisdiction. 

{¶17} Accordingly, the appeal is dismissed. 

Appeal dismissed. 

MYERS and CROUSE, JJ., concur. 

Please note: 

The court has recorded its own entry this date.