COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59604 JAY A. WEISBARTH, ET AL. : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION DANIEL SMEAL, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : DECEMBER 19, 1991 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 153978 JUDGMENT : APPEAL DISMISSED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: William G. Weston, Esq. Roger Williams, Esq. 1460 Rockefeller Road 330 Hanna Building Cleveland, OH 44092 Cleveland, OH 44115 Mario C. Ciano, Esq. Clifford Masch, Esq. 113 St. Clair Bldg. Cleveland, OH 44114 - 2 - PATTON, J., Plaintiff-appellant Jay A. Weisbarth ("plaintiff") appeals from the trial court's entry of summary judgment in favor of defendant-appellees David R. Wilson ("driver") and Daniel Smeal ("passenger") (collectively "appellees"). Plaintiff sued appellees for injuries sustained as the result of a vehicular accident whereby plaintiff, while overtaking appellees on his motorcycle, was struck by the opening of the passenger door of the driver's car as the appellees were halted in traffic. The driver answered and counterclaimed against plaintiff for damages sustained to his vehicle as the result of plaintiff's motorcycle hitting his passenger side door. Appellees, in their motions for summary judgment, argued they were not negligent or liable for an intentional tort because plaintiff violated the traffic laws by driving off the roadway in order to overtake the driver's vehicle. The trial court agreed and entered summary judgment in favor of appellees, from which entry plaintiff now appeals. The counterclaim filed by the driver remains outstanding. As a result, we find that we are without jurisdiction to hear this appeal. Civil Rule 54(B) establishes that: 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 - 3 - for delay. In the absence of such deter- mination, any order or other form of deci- sion, 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. As a result, this court is without jurisdiction to entertain an appeal on a judgment which adjudicates less than all the claims and does not include the express determination that "there is no just reason for delay." T.R. Barth & Assoc. v. Marginal Enterprises, Inc. (1976), 48 Ohio App. 2d 218. See, also, Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St. 3d 86; Noble v. Colwell (1989), 44 Ohio St. 3d 92. Unless such language appears in the entry, where multiple claims or parties exist, the order is subject to modification and is not final or appealable. Noble, supra, at 96. As we have noted, the driver filed a counterclaim against plaintiff for money damages. The record, however, does not reflect a disposition of this counterclaim. Hence, this appeal is dismissed for lack of a final appealable order. Appeal dismissed. - 4 - It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the 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. DAVID T. MATIA, P.J. DYKE, J., CONCUR JUDGE JOHN T. PATTON 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. .