COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67631 BARBARA GIELTY : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : INTEGRITY BUILDERS INC. : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 15, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-259914. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Steven M. Weiss, Esq. Weiss, Kwait & Associates 1250 Illuminating Building 55 Public Square Cleveland, OH 44113 For Defendant-Appellant: Les Chambers, Esq. 593 Sunbury Road Delaware, OH 43015 Rick Dobbins, Esq. 3882 Bywood Drive Akron, OH 44333 -2- DAVID T. MATIA, J.: Defendant-appellants, Integrity Builders, et al. ("Integrity"), appeal from the decision of the Cuyahoga Common Pleas Court denying its motion for summary judgment. For the following reasons, this case is dismissed for lack of a final appealable order. I. STATEMENT OF FACTS On or about October 21, 1987, plaintiff-appellee, Barbara Gielty, entered into a work contract with defendant-appellant, Integrity, for home repair and remodeling. The construction work was to be financed through community development loans administered by the Community Development Corporation of Lakewood. The contract included a dispute resolution procedure. Appellant commenced work under the contract on or about October 27, 1987 and completed its performance around December 1, 1987. Being dissatisfied with the work completed, appellee filed a written complaint with Community Development Corporation of Lakewood pursuant to the dispute resolution procedure set forth in the contract. The complaint alleged appellant breached their work contract by failing to complete the renovation in a workmanlike manner acceptable to the homeowner. A hearing was scheduled before the Dispute Board on January 7, 1988. The hearing was conducted as scheduled with appellee, her legal counsel and appellant's representative present. After appellee refused to accept the proposed settlement of her claims, the Dispute Board issued its decision: -3- First, the Community Development Corporation of Lakewood shall credit from our funds the amount of $850.00 as outlined in our negotiation settlement letter of January 11, 1988. This will result in a reduction of the total loan from $15,963.00 to $15,113.00. We will then release the balance of the contract owing to Integrity Builders ($4,963.00) on Friday March 4, 1988. On March, 3, 1988, appellee instructed the Community Development Corporation of Lakewood that it was "prohibited from releasing the balance of the contract you claim is owing to Integrity Builders in the amount of $4,963.00." On October 20, 1993, plaintiff-appellee, Barbara Gielty, commenced the present action. Appellee argued appellant breached its promises and agreements to furnish work, labor and materials in a workmanlike manner. Appellee also claimed as a direct result of appellant's breach, a mechanics' lien had been placed upon her property and/or title to her property thereby creating a cloud upon said title which prevented appellee's attempts at refinancing her mortgage. Appellant answered on November 18, 1993 asserting several affirmative defenses. The defenses were all based upon what appellant calls "plaintiff's total disregard for the 1988 arbitration." On November 26, appellant filed a motion for summary judgment again based on the fact that the dispute was already settled through the binding arbitration award of the Dispute Board. Appellant subsequently counterclaimed seeking confirmation of the arbitration award. -4- Appellee answered appellant's counterclaim and filed a motion for summary judgment on defendant-appellant's counterclaim. Appellee argued not only doesn't an arbitration award exist, but assuming arguendo one did exist, appellant's counterclaim seeking confirmation would be untimely. Appellant responded by filing a motion for summary judgment on its counterclaim arguing a binding arbitration award does exist and its "motion to confirm" was timely filed. On April 25, 1994, defendant-appellant's initial motion for summary judgment was denied. After the trial court's nunc pro tunc granting of appellant's oral motion for reconsideration, the trial court reviewed an additional supplemental affidavit and again denied appellant's initial motion for summary judgment. Defendant-appellant, Integrity, timely filed this appeal. II. ASSIGNMENTS OF ERROR Appellant raises a total of four assignments of error. However, before this court can consider appellant's appeal, we must first determine the threshold question of jurisdiction. It is well established that the denial of a summary judgment generally does not constitute a final appealable order under R.C. 2505.02. See, Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, certiorari denied (1990), 498 U.S. 967, 111 S.Ct. 428. In the case sub judice, the trial court has not yet ruled upon the merits of the underlying claim. The denial of summary judgment neither determined the action nor was made in a "special proceeding." See R.C. 2505.02. Thus, the trial court's order -5- denying defendant-appellant's motion for summary judgment does not constitute a final appealable order. This case is therefore dismissed. -6- This appeal is dismissed. It is, therefore, considered that said appellee recover of appellant her costs herein taxed. It is ordered that a special mandate be sent to the Common Pleas Court directing said court 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. PATTON, C.J. and KARPINSKI, J., CONCUR. DAVID T. MATIA 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 .