COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59514 DAVID HOST : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION RICHARD E. URSEM, ET AL. : : : Defendants-Appellant: : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 096046 JUDGMENT: APPEAL DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MARK B. COHN McCarthy, Lebit, Crystal & Haiman Co., L.P.A. 1800 Midland Building 101 Prospect Avenue, W. Cleveland, Ohio 44115 For Defendants-Appellants: NORMAN A. FOX, JR. JACK A. PETSCHE III Summers, Fox, Coury & McGinty Co., L.P.A. 21430 Lorain Road Fairview Park, Ohio 44126 - 2 - SPELLERBERG, J.: Plaintiff-appellee David Host commenced Case No. CV-96046 by filing a complaint in the trial court against defendants- appellants Richard E. Ursem, Ursem Company and Ursell Company on August 13, 1985. The litigation arises out of the employment and business relationship among the parties described below. Appellee was employed by the Ursem Company, which is engaged in the business of selling control system components, as a vice- president prior to filing this action. During 1984 appellee and appellant Richard E. Ursem, president of Ursem Company, entered into an agreement to create the Ursem Systems Division as independent contractors to expand the company's product line to include the sale of completely assembled control systems (the "Agreement"). Appellee was required under the Agreement to divide his time equally between his duties as vice-president of Ursem Company and development activities for the new Ursem Systems Division. The Agreement established appellee's compensation for these services at $2,800 per month in addition to half the net profits of Ursem Systems Division as defined under the Agreement (the "Contingent Compensation"). Appellee resigned in November 1984 to establish his own business, Host Systems, Inc., in the same field and filed the complaint alleging appellants owed him money under the Agreement. - 3 - Appellee's complaint raised four counts, including breach of contract to pay the Contingent Compensation, fraud in using false figures to compute the Contingent Compensation, failure to pay certain sales commissions, and for an accounting. Appellants denied the allegations and raised counterclaims for conversion of company property and interference with prospective contractual relations (the "Counterclaims"). Appellants also filed a third- party complaint against appellee's new business, Host Systems, Inc., for interference with prospective contractual relations. The trial court subsequently dismissed the third-party complaint against Host Systems, Inc. upon appellee's motion after determining the complaint was not properly filed under Civ. R. 14(A). Appellants refiled the action with various related claims against appellee and Host Systems, Inc., and the second case was assigned to a different judge and designated by Case No. CV-114966. The trial court subsequently denied appellants' motion to consolidate the original and subsequent cases. The original case was transferred to another judge for trial before a jury. The jury returned a verdict in the original case for appellee against two appellants, viz., Richard Ursem and Ursem Company in the amount of $104,681.50 in compensatory damages, including $50,000 in attorney fees, in addition to $50,000 in punitive damages. Appellee thereafter settled and dismissed his complaint - 4 - in the original case against the third appellant Ursell Company pursuant to a stipulated judgment entered by the trial court. The trial court subsequently entered judgment on the jury verdict against appellees Richard Ursem and Ursem Company, including an additional $24,487.60 in prejudgment interest calculated by the trial court. The trial court thereafter overruled appellants' joint motion for judgment notwithstanding the verdict or a new trial. Appellants filed a notice of appeal and assign seven errors./1\ Prior to considering the merits of the parties' respective arguments, this Court must determine its jurisdiction over this appeal. We conclude jurisdiction is lacking and dismiss the appeal since all the claims against all the parties have not been resolved and the trial court has failed to journalize a final appealable order. Civ. R. 54(B). As noted above, the trial court entered judgments disposing of appellee's claims against all three appellants, viz., the jury verdict and judgment entry against Richard Ursem and Ursem Company and the judgment of dismissal against Ursell Company. However, there is no journal entry or notation on the docket sheet reflecting an entry in the record disposing of appellants' Counterclaims against appellee for conversion and interference with prospective contractual relations. As a result, appellants' /1\ These errors are set forth in the Appendix. - 5 - Counterclaims remain pending unresolved and unadjudicated in the trial court. It is axiomatic that a trial court speaks only through its journal. Moskovitz v. Mt. Sinai Medical Center (Sep. 26, 1991), Cuyahoga App. Nos. 60464 and 61166, unreported; Cochran v. Grace Hospital (Mar. 22, 1990), Cuyahoga App. No. 56737, unreported. Appellants' argument that Richard Ursem "admitted" during his testimony at trial that his counterclaim for interference with prospective contractual relations was without merit provides no substitute for a formal written judgment entry, and ignores the fact the counterclaim for conversion would otherwise remain pending unresolved. Moskovitz, supra. The record likewise contains no proper written dismissal of the Counterclaims so the Court must conclude the Counterclaims remain pending. The appealability of a trial court's order in a case involving multiple claims or orders deciding the rights and liabilities of some, but fewer than all, the parties must meet the requirements of Civ. R. 54(B) in order to be final and appealable. Civ. R. 54(B) provides as follows: (B) Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, 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. In the absence of - 6 - such determination, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. The Ohio Supreme Court has recently applied Civ. R. 54(B) in this context, stating as follows: When the court adjudicates the claim but the counterclaim remains pending, or vice versa, and does not make an express determination that there is no just reason for delay and gives an express direction for the entry of judgment, the order is interlocutory and remains so until the entry of judgment adjudicating all the claims and all the rights and liabilities of all the parties. Noble v. Colwell (1989), 44 Ohio St. 3d 92, 95; accord Dukich v. Erico Products (Apr. 6, 1989), Cuyahoga App. No. 55183, unreported. Appellants' Counterclaims state independent claims for relief and recovery on the Counterclaims is not rendered moot or precluded by the jury verdict or judgment entries against appellees Richard Ursem and Ursem Company or the trial court ordered dismissal of Ursell Company. Noble, supra at 96. Accordingly, since the trial court orders do not dispose of all the claims in the action and none of the entries contain an express determination of "no just reason for delay," the court sub judice is without jurisdiction to reach the merits of this appeal. - 7 - Appeal dismissed. It is ordered that appellee recover of appellants his costs herein taxed. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J. and BLACKMON, J. CONCUR JUDGE THOMAS R. SPELLERBERG* *Judge Thomas R. Spellerberg, Seneca County Common Pleas Court, Sitting by Assignment. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. - 8 - APPENDIX ASSIGNMENTS OF ERROR I. THE TRIAL COURT ERRED IN ALLOWING PUNITIVE DAMAGES FOR BREACH OF CONTRACT. II. THE TRIAL COURT ERRED IN ALLOWING PUNITIVE DAMAGES ON A TORT THEORY. A. Defendant committed no tort independent of the contract. B. Plaintiff failed to establish fraud on the part of defendant and therefore punitive damages cannot be sustained on a theory of fraud or misrepresentation. 1. Plaintiff's attorney has asserted in a pleading that plaintiff is not seeking recovery for fraud. 2. The fraud alleged was not contemporaneous with the formation of the contract and therefore the fraud is not material and cannot sustain an award of punitive damages. 3. Defendant made no false representations to plaintiff. 4. Plaintiff failed to prove detrimental reliance and injury. III. THE TRIAL COURT ERRED BY AWARDING ATTORNEY FEES. IV. THE TRIAL COURT ERRED BY GIVING IMPROPER JURY INSTRUCTIONS AS TO THE AVAILABILITY OF PUNITIVE DAMAGES IN A BREACH OF CONTRACT ACTION. A. Punitive damages are not recoverable in a breach of contract action, and to instruct the jury as to the availability of such an award is clearly erroneous. B. Malice is not an issue in cases arising under contract in Ohio, and instructing the jury as to malice as a factor in a contract suit is clearly erroneous. - 9 - APPENDIX - Continued V. THE TRIAL COURT ERRED BY FAILING TO VACATE THE DECISION AGAINST DEFENDANT URSEM. VI. THE TRIAL COURT ERRED IN CONCLUDING THAT RICHARD URSEM COMMITTED A BREACH OF CONTRACT. VII. THE TRIAL COURT ERRED IN DETERMINING WHAT PRE-JUDGMENT INTEREST, IF ANY, WAS AVAILABLE IN THIS MATTER. A. The trial court erred in deciding that appellant owed the appellee pre-judgment interest in this matter because this is an unliquidated debt for which interest does not accrue until the date of the trial court's judgment. B. Assuming arguendo that appellant owes pre-judgment interest payments to the appellee, the trial court incorrectly determined the amount owed by adding interest due from a date when payments were not yet past due. .