COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60599 CLIFTON INVESTMENT SERVICES, INC.: : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION DONALD KIRSCHNICK, JR., ET AL. : : : DEFENDANT-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. 169987. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellants Clifton Investment Services, Inc. and James M. Howard: Harold Pollock Co., L.P.A., Harold Pollock, 1707 Terminal Tower, Cleveland, Ohio, 44113. For Defendant-appellees D.F.K., Inc. and Donald Kirschnick, Jr., and Donald Kirschnick, Sr.: Joel I. Newman, 716 Leader Building, Cleveland, Ohio, 44114. For Defendant-appellees U.S. Bar, Inc., Ronald Hoover, and Theodore Werb: James G. Joseph, 75 Public Square, Suite 650, Cleveland, Ohio, 44113. - 2 - SWEENEY, JAMES D., J.: Plaintiff-appellant Clifton Investment Services, Inc. ("CIS") appeals from the denial of his August 21, 1990, motion for leave to file an amended complaint. For the reasons adduced below, we dismiss the notice of appeal. A review of the lengthy and contentious record reveals that CIS and James Howard ("Howard") filed a complaint for declaratory judgment, interpleader, declaratory judgment, fraud, and money 1 damages on May 22, 1989. The named defendants in this original complaint are: Donald Kirschnick, Sr., Donald Kirschnick, Jr., and D.F.K., Inc. ("sellers"); Theodore Werb, Ronald Hoover, and U.S. Bar, Inc. ("buyers"); Sol Tushman ("Receiver"); and, Seaway Acceptance Corp. ("Seaway"). The allegations raised in the complaint surround the proposed purchase of a bar, with plaintiffs as the escrow agent, and a subsequent, albeit unsuccessful, allegedly malicious criminal prosecution of the escrow agent by certain defendants. Following extensive discovery and motion practice by the parties, additional pleadings, at least one amended complaint which was ordered stricken, and counterclaims, the court overruled plaintiffs' most 1 CIS is a business engaged in buying and selling investments. Howard is the sole shareholder and president of CIS. - 3 - recent motion to amend the complaint. Plaintiffs timely appealed 2 this ruling and raise one assignment of error. Rather than discuss the merits of the assignment raised by appellants at this point, we find that we are absolutely precluded from so doing because we lack jurisdiction due to a failure of the order appealed from to contain certification pursuant to Civ. R. 54(B). Also, see Section 3(B)(2), Article IV of the Ohio Constitution and R.C. 2505.03. "The analysis of a Civ. R. 54(B) certification is a two- step process." Harris v. Alexander Grant & Co. (1990), 61 Ohio App. 3d 172, paragraph two of the syllabus, citing General Acc. Ins. Co. v. Ins. Co. of North America (1989), 44 Ohio St. 3d 17, 21. The first step is a determination of finality for purposes of R.C. 2505.02. The second step is examining certification made pursuant to Civ. R. 54(B) of no just reason for delay. Id. R.C. 2505.02 provides in part: "An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, 2 The sole assignment of error provides: "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANTS' MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT TO ASSERT A FRAUD CLAIM AGAINST DEFENDANT-APPELLEES KIRSCHNICK AND D.F.K., INC." - 4 - modified or reversed, with or without retrial." The Supreme Court, in discussing a Civ. R. 54(B) analysis, stated the following in General Acc. Ins. Co. v. Ins. Co. of North America, supra, at 20: Civ. R. 54(B) is based on its federal counterpart, Fed. R. Civ. P. 54(b), see Staff Notes to Civ. R. 54(B), and provides: "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. * * *" Thus, a party may appeal a judgment in some instances even though other claims and/or parties still remain in the action. However, when a court enters final judgment as to fewer than all of the claims or parties, it must expressly state that there is no just reason to delay an appeal on that judgment. Without such express determination, an order adjudicating fewer than all the claims or 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." (Emphasis added.) Civ. R. 54(B). See, also, Logue v. Wilson (1975), 45 Ohio App. 2d 132, 134-135, 74 O.O. 2d 140, 142, 341 N.E. 2d 641, 643. (Emphasis added.) In applying the first step of our analysis standard, to- wit, whether the denial of plaintiffs' motion to amend to allege fraud against certain defendants was a final order, we conclude - 5 - that it was a final order. The effect of the denial determined the fraud claim to be filed and prevented any recovery thereon, which are substantial rights of an aggrieved party. See House v. Moomaw (1964), 120 Ohio App. 23, 28 O.O.2d 211; and Armstrong v. Herancourt Brewing Co. (1895), 53 Ohio St. 467, 480, ("A substantial right involves the idea of a legal right, one which is protected by law. * * *"). Furthermore, "[A] declaratory judgment action is a special proceeding pursuant to R.C. 2505.02, and, therefore, an order entered therein which affects a substantial right is a final appealable order." General Acc. Ins. Co. v. Ins. Co. of North America, supra, at paragraph two of the syllabus. Even though there is a final order in the denial of the motion to amend the complaint, the final order lacks certification by the trial court of no just reason for delay pursuant to Civ. R. 54(B) in this multiple party/multiple claim case. Accordingly, the notice of appeal herein is dismissed and the matter remanded to the trial court for further proceedings. Dismissed. - 6 - It is ordered that appellees recover of appellants their costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, P.J., and SARA J. HARPER, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .