COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67980 VINCE BUSA : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION FRED LASORELLA, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 4, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 136662 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Michael D. Linn, Chad Murdock Javitch, Block, Eisen & Orchard Plaza, Suite E Rathbone 2633 State Route 59 601 Rockwell Building, Sixth Ravenna, Ohio 44266 Floor Cleveland, Ohio 44114-1601 -2- HARPER, J.: Plaintiff-appellant, Vince Busa, and defendants-appellees, Fred Lasorella and Fred Lasorella dba Lakeland Building and Construction Co. (collectively "Lasorella") entered into a contract in July 1986 for the construction of a room addition at appellant's residence located at 6823 Hickory Hill, Mayfield Village, Ohio. Lasorella, pursuant to the contract, agreed to perform the work at a cost of $17,200 to appellant. Appellant filed a complaint in the Court of Common Pleas of Cuyahoga County on September 24, 1987. He set forth therein that notwithstanding the $17,200 payment to Lasorella, Lasorella failed to compensate all of the subcontractors who performed contractual work. One subcontractor in fact filed a Mechanic's Lien against appellant's property in July 1986 thereby clouding title. Appellant alleged further that Lasorella's work failed to conform to the agreement's specifications for which appellant would incur additional costs by an outside contractor. Appellant also charged that the work adversely affected the value of his home. Appellant's complaint was served on Lasorella at one address, 23811 Chagrin Boulevard, Beachwood, Ohio. Lasorella filed a pro se answer and counterclaim on February 3, 1988 and listed 1228 Euclid Avenue, Cleveland, Ohio 44115 thereon as his address. Lasorella first denied that it received the $17,200 from appellant as required by the contract. It also denied appellant's allegation that subcontractors were not compensated for work performed at appellant's residence. Lasorella, for its -3- counterclaim, asserted that appellant breached the contract by not treating it as the exclusive contractor for the work. Consequently, Lasorella allegedly lost revenue it was entitled to under the contract. The procedural history of the case then proceeds with appellant's filing of a reply to Lasorella's counterclaim. The trial court continued a pretrial scheduled for March 23, 1988 to April 14, 1988 pursuant to appellant's request. A journal entry dated April 15, 1988 then indicates that the court conducted a pretrial and set the trial date at October 19, 1988. On October 17, 1988, the trial court granted leave to Lasorella to move or plead to December 1, 1988. The case was called on October 19, 1988, but trial was continued to January 6, 1989 in a journal entry dated October 20, 1988. Trial was once again continued to April 26, 1989 in a January 9, 1989 journal entry. The trial court issued a journal entry on April 28, 1989 wherein judgment was rendered in favor of appellant on his complaint in the amount of $19,740 plus interest and costs. The entry discloses that appellant was present, but Lasorella failed to appear for trial. Appellant filed in August 1992, a Motion to Correct The Record Nunc Pro Tunc ("motion to correct I") in which he requested the court to change Lasorella's name to Fred Lasorella dba Lakelynd Building & Construction Company in its judgment. According to appellant, Lasorella's dba as "Lakeland Building & Construction -4- Company" was a clerical error, and the correction was needed to assist appellant in collecting judgment. On September 17, 1992, Lasorella filed a Motion for Relief from Judgment and Opposition to Plaintiff's Motion to Correct the Record ("relief motion I"). Lasorella, now through counsel, submitted that it was entitled to relief from judgment under Civ.R. 60(B)(5). The memorandum attached to Lasorella's relief motion I set forth that it agreed during a pretrial to remedy the "problems" identified by appellant in its workmanship. After Lasorella remedied the "problems," it was under the impression that the trial court dismissed the case. Lasorella thus suggested that it had a meritorious defense because appellant was awarded judgment in excess of the actual costs of the addition to his home. Moreover, Lasorella averred that it was entitled to relief under Civ.R. 60(B)(5) because it never received notice of the April 26, 1989 trial date. Though Lasorella received the initial complaint, it explained that once it thought the case was dismissed, it never notified the trial court of its change in address. Consequently, the clerk's office forwarded all notices to Lasorella's old address in Beachwood, but past the expiration of the mail forwarding order. Lasorella asserted that it first learned of the April 1989 judgment in August 1992 when it received appellant's motion to correct the record. It submits that its relief motion I was timely filed because it filed it within a reasonable amount of time from which it learned of the judgment in August 1992. -5- Appellant filed a brief in opposition to Lasorella's relief motion I on October 13, 1992. He argued that Lasorella's Civ.R. 60(B) motion was premised under section (B)(1) rather than the "catch-all" (B)(5) provision because failure to receive notice amounts to "excusable neglect." Since Lasorella failed to file his motion for relief from judgment within one year of that judgment, his motion failed to satisfy the timeliness requirements of Civ.R. 60(B). In addition to arguing that Lasorella could not present a meritorious defense, appellant cited Civ.R. 5(B) as permitting all service to be made to a party's last known address, Lasorella's Beachwood address in this case. Therefore, Lasorella could not effectively claim that it did not receive notice of the trial date. The trial court denied Lasorella's relief motion I on October 7, 1992. The court denied appellant's motion to correct I in the same entry. Lasorella appealed from the denial of the relief motion I on November 17, 1992, App. No. 64660. This court sua sponte dismissed the appeal on March 16, 1993 pursuant to Civ.R. 54(B) for lack of final appealable order as the trial court did not issue a journal entry disposing of Lasorella's counterclaim. Lasorella filed a second Motion for Relief from Judgment on September 21, 1993 (relief motion II). Lasorella proposed two bases for the relief: (1) the trial court could not enter judgment in favor of appellant because appellant offered no evidence at trial in support of his damages claim; and/or (2) it did not receive notice of the trial date. Lasorella otherwise repeated the -6- claims contained in its relief motion I regarding a meritorious defense, and the timeliness of the motion. Appellant filed a Motion to Correct the Record on September 24, 1993 pursuant to Civ.R. 60(B)(1) ("motion to correct II"). He requested that the trial court issue a nunc pro tunc entry dismissing Lasorella's counterclaim. Appellant argued that the nunc pro tunc entry was warranted in light of our dismissal of App. No. 64660. 1 The trial court issued a journal entry on November 5, 1993. The court denied appellant's motion to correct II and granted Lasorella's motion for relief from judgment under Civ.R. 60(B). It then restored the case to the active docket; cancelled the trial date set on the counterclaim, November 4, 1993; and set trial for January 3, 1994 on appellant's complaint and Lasorella's counterclaim. Appellant filed a notice of appeal from this judgment on November 30, 1993, App. No. 66566. This court granted Lasorella's motion to dismiss the appeal pursuant to Civ.R. 54(B) on January 18, 1994. A bench trial proceeded on June 17, 1994 as to appellant's first and third counts of his complaint. Appellant dismissed the second count of his complaint and Lasorella dismissed its counterclaim. 1 The parties filed additional materials in the trial court in the interim, but they have no bearing on the outcome of this appeal. -7- The trial court issued its judgment on September 1, 1994. On appellant's second count, the court rendered judgment in favor of appellant in the amount of $1,981.75. Judgment was rendered in favor of Lasorella on appellant's third count because appellant failed to prove any diminution in the value of his home. Appellant assigns error as follows from this final judgment: I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS-APPELLEES' SECOND MOTION FOR RELIEF FROM JUDGMENT II. WHETHER THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT'S MOTION TO CORRECT THE RECORD Appellant submits in his first assignment of error that the trial court erred in vacating the April 28, 1989 judgment because Lasorella failed to demonstrate its right to relief under Civ.R. 60(B). However, a procedural review of the record before us requires an affirmance of the trial court's "final judgment." Civ.R. 60(B) expressly states that a court may relieve a party, on motion and upon such terms as are just, from a final judgment, order or proceeding. Though a judgment granting or denying a Civ.R. 60(B) motion is, as a rule, a final appealable order, Colley v. Bazell (1980), 64 Ohio St.2d 243, 245, a party may seek Civ.R. 60(B) relief only from a final judgment, Jarrett v. Dayton Osteopathic Hosp., Inc. (1985), 20 Ohio St.3d 77, 78. See, Matrka v. Stephens (1991), 77 Ohio App.3d 518; cf. Wolford v. Newark City School Dist. (1991), 73 Ohio App.3d 218 (Civ.R. 60(B) relief from default judgment inappropriate since judgment was not final because it failed to conclude damages issue). -8- An order which adjudicates fewer than all the claims or rights and liabilities of the parties must meet the requirements of Civ.R. 54(B) and R.C. 2505.02 in order to constitute a final appealable order. Noble v. Colwell (1989), 44 Ohio St.3d 92; Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86. Civ.R. 54(B) reads in that regard as follows: When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the same or separate transactions, 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 a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all of 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 the parties. (Emphasis added.) 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 *** is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. In the present case, the trial court's April 28, 1989 judgment against Lasorella was a final appealable order only if it complied with Civ.R. 54(B) and R.C. 2505.02. The judgment did not completely determine the action because Lasorella's counterclaim was still outstanding. This court even recognized that the counterclaim remained pending, and thus there was no final appealable order, when we dismissed two prior appeals by the -9- parties, App. Nos. 66566 and 64660. Hence, Civ.R. 60(B) was not an appropriate means to attack the April 28, 1989 judgment. Jarrett; Matrka. This court recognizes that this appeal is taken from a "final appealable order" as defined in Civ.R. 54(B) and R.C. 2505.02. Nonetheless, Civ.R. 54(B) allows a trial court to revise a ruling "before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." See, Jarrett, 78. Lasorella, therefore, did not have to prove its entitlement to relief from the April 28, 1989 under Civ.R. 60(B) as set forth in Argo Plastic Prod. Co. v. Cleveland (1984), 15 Ohio St.3d 389, 391 and GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. Since appellant fails to challenge the propriety of the trial court's "final judgment" regarding, e.g., the weight or sufficiency of the parties' evidence, we are compelled to affirm the trial court's revision of the April 28, 1989 order. Civ.R. 54(B); Jarrett. Appellant's first assignment of error is overruled. Appellant, in his second assignment of error, challenges the trial court's denial of his motion to correct II. He submits that Civ.R 60(A) permitted the trial court to issue a nunc pro tunc entry dismissing Lasorella's counterclaim as of April 28, 1989. Appellant refers to the language used in our dismissal of App. No. 64660, i.e., "the court of common pleas did not issue a journal entry disposing of the counterclaim" to support his argument that we ordered the trial court to dismiss the counterclaim. Thus, -10- Civ.R. 60(A) could be used to correct an omission made by the trial court. Simply because this court dismisses an appeal based upon non- compliance with Civ.R. 54(B) does not mean that the trial court should outright dispose of the outstanding claims or issues of the parties. We are not mind readers, and will not assume that the trial court either merely forgot to enter Civ.R. 54(B) or dispositional language, or meant for an interlocutory order to be final under the rule and applicable statute. Our March 16, 1993 dismissal of App. No. 64660 was not an order directed to the trial court, especially so since we never attained jurisdiction over the appeal. Appellant's second assignment of error is overruled. Judgment affirmed. -11- It is ordered that appellees recover of appellant its 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 Common Pleas 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. PATRICIA A. BLACKMON, P.J., JOSEPH J. NAHRA, J., CONCUR JUDGE SARA J. HARPER 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, .