COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60941 CENTENNIAL EQUITIES CORPORATION : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION WIZARD GROUP, INC., ET AL. : : : : Defendants-Appellants : : DATE OF ANNOUNCEMENT OF DECISION: JULY 2, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 124751 JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JEFFREY R. APPELBAUM VIRGINIA S. BROWN Thompson, Hine & Flory 1100 National City Bank Bldg. Cleveland, Ohio 44114 For Defendants-Appellants: JACOB A. FRYDMAN JOSEPH E. OLIVER Frydman & Oliver Co., L.P.A. 10900 Carnegie Avenue #600 Cleveland, Ohio 44106 - 2 - KRUPANSKY, J.: This is a second appeal to this Court on this case. The first appeal was dismissed for failure of appellants to appeal from a final appealable order from the trial court. The trial court failed to dispose of all issues and all the parties in compliance with Civ. R. 54(B) and also failed to include in its journal entry the phrase "no just reason for delay," thereby, depriving this Court of jurisdiction to decide the merits of the case sub judice. Briefly stated, jurisdiction has remained in the trial court throughout the entire proceedings in both the first and second appeal and still remains in the trial court for failure to again comply with Civ. R. 54(B) and App. R. 4(A)(4). This case is, therefore, again dismissed for lack of jurisdiction for the following reasons: Defendants' appeal sub judice stems from a judgment of the trial court awarding $87,799.27 in damages to the plaintiff under a lease and guarantee and plaintiff's cross-appeal stems from a denial of prejudgment interest and attorney fees to plaintiff. For simplicity, this Court shall refer to the parties by their designation in the trial court. Plaintiff Centennial Equities Corporation ("Centennial") filed a complaint in the trial court February 20, 1987 to recover rent and other charges allegedly due and owing under a commercial lease executed by defendant Wizard Group, Inc. ("Wizard") as tenant and guaranteed by defendant attorney Jacob A. Frydman - 3 - ("Frydman"). Wizard and Frydman filed answers denying the substantive allegations of the complaint. Frydman also filed a counterclaim against Centennial for fraud alleging mis- representation of its consent to the assignment of Wizard's Euclid Square Mall lease to prospective purchasers of Wizard's assets. Wizard ultimately ceased operating at the mall, Centennial did not consent to the proposed lease assignment and the purchasers did not operate from the leased premises. The trial court granted summary judgment in favor of Centennial against Wizard and Frydman on the issue of liability under the lease and guarantee respectively March 30, 1988 and scheduled a bench trial to determine the amount of damages along with Frydman's counterclaim for fraud against Centennial. The trial court conducted the bench trial October 25, 1988 and subsequently granted judgment against Wizard on the lease November 18, 1988 in the amount of $87,799.27 for rent obligations incurred prior to the trial. At this time no judgment was entered disposing of the action against defendant Frydman. The trial court denied plaintiff prejudgment interest and attorney fees. Although it is unclear, the transcript of the hearing indicates the trial court apparently intended to dismiss Frydman's counterclaim for fraud against Centennial based upon the following exchange: MR. APPLEBAUM [Plaintiff's Counsel]: Your Honor, I believe I have a Motion to make - 4 - at this time that the Defendants' case involves a counterclaim. I particularly have the right to put on rebuttal as to the claim, and I move to dismiss the counterclaim. There was no evidence presented for the counterclaim pursuant to Rule 41-- THE COURT: Mr. Frydman? MR. FRYDMAN [Defendant and Defense Counsel]: I believe, Your Honor, there was evidence presented as to the counterclaim, and that evidence related to the testimony given by Mr. Stec [plaintiff's leasing representative], and that testimony given by myself, and I would request this Court not deny the Motion -- and Pat Smith [another of plaintiff's employees], as well, Your Honor - * * * MR. FRYDMAN: *** I would request that the Court not dismiss the Motion -- THE COURT: I will dismiss the Motion, and your exception noted. *** (Tr. 265-267). The colloquy between the trial court and Frydman is ambiguous as to what was intended to be dismissed. Query: did the trial court intend to dismiss the motion to dismiss the counterclaim or did the trial court intend to dismiss defendant's trial court in fact intended. If it intended to dismiss the motion to dismiss the counterclaim, the counterclaim remains for adjudication; if it intended to dismiss the counterclaim, the counterclaim is no longer viable. In order to avoid future problems, the trial court should journalize its intended disposition. A trial court speaks only through its journal - 5 - entries. State, ex rel. Indus. Comm. v. Day (1940), 136 Ohio St. 477. At this point, the record demonstrates Frydman also orally requested the trial court enter findings of fact and conclusions of law. (Tr. 264). The trial court, in addition to failing to journalize a judgment on Frydman's counterclaim for fraud or the motion, also failed to journalize its ruling upon the request for findings of fact and conclusions of law. Plaintiff filed a Civ. R. 60(B) motion for relief from the trial court's judgment, which rendered judgment against only Wizard on the underlying lease, seeking to obtain judgment against Frydman on his guarantee of the lease. The trial court thereafter entered judgment nunc pro tunc against Frydman in the amount of $87,799.27 on the guarantee in the following journal entry: Motion for relief from judgment treated as motion to correct judgment. Court's judgment of $87,799.27 is entered against deft. Frydman as guarantor. This Court dismissed defendants' prior appeal for lack of jurisdiction pursuant to Civ. R. 54(B) for want of a final appealable order since the trial court failed to determine the amount of damages owing on a third party complaint involving Wizard, Frydman, and the prospective purchasers. Centennial Equities Corp. v. Wizard Group, Inc. (April 12, 1990), Cuyahoga App. No. 56885, unreported. - 6 - After the first dismissal by this Court, the record demonstrates that defendants filed a renewed written motion in the trial court for findings of fact and conclusions of law to support the trial court's judgment. The trial court granted defendants' motion concerning the findings of fact and conclusions of law in an entry journalized June 14, 1990 and scheduled a pretrial to resolve the remaining damages issues on the third-party complaint. The trial court subsequently entered judgment specifying the damages under the third-party complaint, but failed to file the requested findings of fact and conclusions of law. Defendants thereafter filed a second notice of appeal raising nine assignments of error in the case sub judice. 1 Plaintiff filed a cross-appeal raising two assignments of error. However, prior to considering the merits of the parties' respective arguments, this Court must determine whether it has jurisdiction in the appeal and cross-appeal. We conclude jurisdiction is lacking and dismiss the appeals for want of a final appealable order. The Ohio Supreme Court has ruled that a trial court's failure to render findings of fact and conclusions of law when timely requested as in the case sub judice prevents a judgment from becoming final until such findings are entered by the trial 1 The parties' respective assignments of error are set forth in the Appendix. - 7 - court. Walker v. Doup (1988), 36 Ohio St. 3d 229; see also App. R. 4(A)(4). We find under the circumstances the trial court's original judgment against Wizard on the lease and subsequent nunc pro tunc judgment entry against Frydman on the guarantee are not adequate substitutes for such findings and do not satisfy this requirement. The trial court apparently recognized the lack of clarity resulting from the posture of this case when it granted defendants' renewed written motion for findings of fact and conclusions of law. We believe such findings would facilitate review of the issues in the case sub judice. Appropriate findings of fact and conclusions of law must be filed pursuant to a timely request when the trial court grants a motion to dismiss a claim pursuant to Civ. R. 41(B)(2) since the trial court is permitted to weigh the evidence and make a final disposition of that action. Hinton v. Dillon Co. (July 18, 1984), Summit App. No. 11586, unreported. Under the circumstances, the absence of any factual and legal conclusions precludes meaningful review of the trial court's judgment relating to Frydman's counterclaim since the trial court's nun pro tunc entry against Frydman on the guarantee reveals no basis for the decision and the trial court failed to journalize any entry on Frydman's counterclaim for fraud. Oral pronouncements of a trial court such as the transcript quoted above purporting to grant plaintiff's oral motion to dismiss Frydman's counterclaim, although unclear are no - 8 - substitute for a formal written judgment entry disposing of the claim. Moskovitz v. Mt. Sinai Medical Center (Sept. 26, 1991), Cuyahoga App. Nos. 60464 and 61166, unreported at 6 (citing State, ex rel. Indus. Comm. v. Day (1940), 136 Ohio St. 477). Plaintiff contends, however, the nunc pro tunc award of damages against Frydman on the original complaint on the guarantee sufficiently subsumes or moots Frydman's counterclaim to satisfy 2 this jurisdictional requirement. We are unpersuaded. The Court in Ford Motor Credit Co. v. Landmark Air Fund I (1983), 12 Ohio App. 3d 117, rejected a similar argument when the plaintiff in that case sought to similarly circumvent the requirement for a separate journal entry disposing of the defendants' counterclaim as herein. The Court dismissed the appeal since the trial court judgment for the plaintiff in the amount of principal due under certain promissory notes did not moot the usury counterclaim asserted by the defendant. Id. Under the circumstances, as recognized by the trial court when it bifurcated the issues, the trial court's judgment in favor of plaintiff against Frydman on the guarantee did not moot Frydman's counterclaim for fraud. Accordingly, since the trial court failed to render findings of fact and conclusions of law or journalize judgment on 2 The trial court's journal entry clarifying its ruling on defendant's counterclaim for fraud is necessary so that this Court need not speculate on the final disposition of defendant's counterclaim and to avoid collateral attack on the judgment at some future date for lack of jurisdiction. - 9 - Frydman's counterclaim for fraud against Centennial, this Court lacks jurisdiction and the appeal and cross-appeal are dismissed. Civ. R. 54(B); App. R. 4(A)(4). Case dismissed. - 10 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. J.F. CORRIGAN, P.J., AND BLACKMON, J., CONCUR JUDGE BLANCHE KRUPANSKY 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. - 11 - APPENDIX Defendants' nine assignments of error on appeal are as follows: I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING CEC'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WIZARD AND FRYDMAN'S LIABILITY UNDER THE LEASE AND GUARANTEE RESPECTIVELY. II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING WIZARD AND FRYDMAN'S MOTION TO VACATE AND MOTION FOR SUMMARY JUDGMENT BASED UPON NEWLY DISCOVERED EVIDENCE WHICH ESTABLISHED THAT CEC WAS NOT THE REAL PARTY IN INTEREST, THAT THE LEASE HAD BECOME ILLUSORY, AND THAT, AS A RESULT, CEC HAD NO CLAIM OR CLAIMS TO ASSERT AGAINST WIZARD AND FRYDMAN. III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN DENYING WIZARD AND FRYDMAN'S MOTION TO DISMISS BASED UPON CEC'S FAILURE TO JOIN AN INDISPENSABLE PARTY AS REQUIRED UNDER RULE 19(A), OHIO RULES OF CIVIL PROCEDURE, AND FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED PURSUANT TO RULE 12(B)(6), OHIO RULES OF CIVIL PROCEDURE. IV. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN DENYING WIZARD AND FRYDMAN'S MOTION TO DISMISS PREMISED ON RULE 41(B)(1) OF THE OHIO RULES OF CIVIL PROCEDURE AND PURSUANT TO RULE 21 III (I)(1) OF THE LOCAL RULES OF THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO, ON THE BASIS OF CEC'S FAILURE TO PROSECUTE. V. TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ALLOWING THE PURPORTED AGENTS OF CEC TO TESTIFY ON ITS BEHALF IN THE ABSENCE OF ANY INDEPENDENT EVIDENCE ESTABLISHING THE EXISTENCE OF THE PURPORTED AGENCY RELATIONSHIP AND THE PURPORTED AGENT'S AUTHORITY TO ACT AND SPEAK ON BEHALF OF CEC. IN THE ABSENCE OF SUCH SHOWING, CEC'S WITNESSES SHOULD NOT HAVE BEEN PERMITTED TO TESTIFY AT TRIAL. VI. THE TRIAL COURT ERRED BY VIRTUE OF ITS FAILURE TO MAKE ANY DETERMINATION WITH RESPECT TO WIZARD AND FRYDMAN'S COUNTERCLAIM ASSERTED AGAINST CEC. - 12 - VII. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY REFUSING OR FAILING TO COMPLY WITH DEFENDANTS- APPELLANTS' REQUEST THAT THE TRIAL COURT STATE IN WRITING ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW. VIII THE TRIAL COURT ERRED BY ENTERING JUDGMENT NUNC PRO TUNC AGAINST FRYDMAN IN FAVOR OF CEC. IX. THE TRIAL COURT ERRED BY NOT FINDING THAT THE SALE OF THE MALL TERMINATED ALL LIABILITY, IF ANY, OF FRYDMAN TO CEC UNDER THE GUARANTEE. Plaintiff's two assignments of error on cross-appeal are as follows: I. CENTENNIAL PRESENTED SUFFICIENT AND COMPETENT EVIDENCE TO SUPPORT IS RECOVERY OF ATTORNEY FEES. II. CENTENNIAL IS ENTITLED TO PREJUDGMENT INTEREST ON THE LIQUIDATED DEBT OWED BY DEFENDANTS/APPELLANTS. .