Sagenich v. Erie Insurance Group, Unpublished Decision (12-12-2003)

MEMORANDUM OPINION ¶ 1 On October 3, 2003, appellant, American Guarantee and Liberty Insurance, filed a notice of appeal from a September 8, 2003 judgment of the Trumbull County Court of Common Pleas. In that judgment, the trial court denied appellant's motion for summary judgment and indicated "[t]his is a final and appealable order, and there is not just cause for delay." ¶ 2 On October 10, 2003, appellee, Erie Insurance Group, filed a motion to dismiss this appeal due to lack of a final appealable order. On October 22, 2003, appellant filed a memorandum in opposition to the motion to dismiss. ¶ 3 It is well established that the denial of a motion for summary judgment is generally not a final appealable order. State exrel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23. This is due to the fact that the denial does not determine the action and prevent a judgment and is, therefore, not a final order under R.C. 2505.02. Celebrezze v.Netzley (1990), 51 Ohio St.3d 89, 90. See, also, Klein v. Portage Cty. (2000), 139 Ohio App.3d 749, 751. The denial of a motion for summary judgment is always reviewable on appeal following a subsequent final judgment. ¶ 4 Additionally, the mere addition of Civ.R. 54(B) language, that there is no just reason for delay, does not transform what is an otherwise interlocutory order into a final appealable order. As stated by the Supreme Court of Ohio in Wisintainer v. Elcen Power Strut Co. (1993), 67 Ohio St.3d 352, at 354, "the phrase `no just reason for delay' is not a mystical incantation which transforms a nonfinal order into a final order." See, also, Graines v. Y.D.C. Corp. (May 11, 2001), 11th Dist. No. 2000-L-053, 2001 WL 501994. ¶ 5 Based upon the foregoing analysis, appellee's motion to dismiss this appeal is hereby granted since the trial court has not yet issued a final order. Hence, this court is without jurisdiction to consider this matter. ¶ 6 The appeal is dismissed. Appeal dismissed. Donald R. Ford, P.J., and Cynthia Westcott Rice, J., concur.