Kokosing Construciton Co., Inc. pulled off a rare hat trick — its appeal has now been dismissed three times for lack of jurisdiction.
Kokosing was the defendant in a breach of contract and negligence action, and raised several counterclaims. The case was apparently tried to a jury on the plaintiff’s breach of contract claim–but the plaintiff’s negligence claim and all three counterclaims were not tried. (I say “apparently” because, as the Ninth District notes, there were no journalized jury interrogatories or verdict forms in the record.)
After the trial court entered judgment on the plaintiff’s breach of contract claims, Kokosing filed a motion for JNOV and a motion for new trial, then filed a notice of appeal while that motion was pending. The trial court issued an entry stating that it would not consider the motions because of the notice of appeal.
The Court of Appeals then dismissed for lack of jurisdiction, noting that in fact the trial court retained jurisdiction while the Rule 50(B) and Rule 59 motions were pending.
For some reason, Kokosing’s counsel then filed another notice of appeal just three weeks after the prior appeal was dismissed for lack of jurisdiction. The Court of Appeals dismissed again.
The trial court eventually deneid the motion for JNOV and the motion for new trial. And Kokosing appealed again.
For the third time, the Court of Appeals dismissed the case for lack of jurisdiction, this time noting that the trial court had evidently entered judgment only on the plaintiff’s breach of contract claim, and none of the others. Pursuant to Rule 54(B), an order which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties is appealable only upon an express finding by the trial court that “there is no just reason for delay.” As the trial court’s judgment entry did not contain such a finding, the order was not appealable.
The case is Dragway 42, LLC v. Kokosing Construction Co., Inc. (9th Dist.), 2009-Ohio-5630 [PDF].
This post was written by Jeffrey M. Nye.
