COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68677 ROBERT PAUL, ET AL. : ACCELERATED DOCKET : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION ANGELO V. SEMIRALE, JR., ET AL. : : PER CURIAM Defendants-appellees : DATE OF ANNOUNCEMENT : OF DECISION : NOVEMBER 22, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-238603 JUDGMENT : Dismissed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANTS-APPELLEES: Michael J. Caticchio, Esq. Patrick M. Dukes, Esq. Zimmerman, Caticchio & Connie M. Horrigan, Esq. Eisenberg Western, Hurd, Fallon, 5001 Mayfield Road Paisley & Howley Suite 105 2500 Terminal Tower Lyndhdurst, Ohio 44124 Cleveland, Ohio 44113-2241 and Kenneth A. Bossin, Esq. 330 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- PER CURIAM: Plaintiffs-appellants, Robert Paul and Shirley Paul, appeal from the partial summary judgment granted in favor of defendants- appellees, Angelo Semirale, Jr. and Deborah Maggard, by the Court of Common Pleas of Cuyahoga County. Appellants submit that genuine issues of material fact remain for litigation regarding two claims which stem from a landlord-tenant relationship. The Pauls filed a complaint in the trial court on September 9, 1992, naming Angelo Semirale, Jr. ("Semirale, Jr.") and Elaine Semirale as defendants. An amended complaint, filed on January 20, 1993, named "Angelo V. Semirale, Jr., et. al." as "Defendants" and Maggard as a new party defendant. Semirale, Jr. and Maggard filed separate answers to the Pauls' amended complaint on March 11, 1993. The trial court referred the case to arbitration on August 20, 1993 following a June 6, 1993 pretrial. The arbitration was unsuccessful, and the case was returned to the trial court on August 26, 1993. Semirale, Jr. and Maggard thereafter filed a motion for partial summary judgment on November 29, 1993. These defendants sought to have summary judgment granted on two of the Pauls' claims for relief. The Pauls responded with a brief in opposition, but the trial court granted the partial summary judgment on February 1, 1994. The trial court referred the Pauls' three remaining claims to arbitration on February 8, 1994. The case proceeded to -3- hearing before a panel of arbitrators on September 2, 1994. The panel issued its report and award on September 7, 1994, finding for the Pauls and against Semirale, Jr. in the amount of $2,635.56. Semirale, Jr. and Maggard filed a notice of appeal de novo from the arbitration award on September 23, 1994. After a pretrial and the setting of the appeal de novo for bench trial, the trial court issued a journal entry on February 13, 1995. The entry reads, "Case is settled, atty's to submit journal entry." Though the trial court's docket sheet indicates a dismissal with prejudice, the case file contains neither a journalized entry of the dismissal nor any record of the parties' settlement agreement. The Pauls filed a notice of appeal from the February 1, 1994 grant of partial summary judgment, and the February 13, 1995 "final judgment." A review of the record, however, reveals that this court is without jurisdiction to entertain this appeal for lack of a final appealable order. Section 3(B)(2), Article IV, Ohio Constitution, provides that "[c]ourts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district ***." See, R.C. 2501.02. Every final order may be reviewed on appeal. R.C. 2505.03(A). An order is only final and appealable if it meets the requirements set forth in R.C. 2505.02 and, if applicable, the requirements contained in Civ.R. 54(B). As to R.C. 2505.02, if a trial court's order lacks any of three conditions, it is not a -4- final order. These conditions are that it affects a substantial right, determines the action, or prevents a judgment. See, Bellaire City Schools Bd. of Edn. v. Paxton (1979), 59 Ohio St.2d 65, 69-70; see, also, Stewart v. Midwestern Indemn. Co. (1989), 45 Ohio St.3d 124, 126; Pewter Mug, Inc. v. M.U.G. Enterprises, Inc. (1975), 46 Ohio App.2d 93, 94. If an order disposes of fewer than all of the claims or parties in an action, Civ.R. 54(B) allows the order to be final and appealable only if the court expressly states that there is "no just reason for delay." Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 89; Noble v. Colwell (1989), 44 Ohio St.3d 92, syllabus. "Without such express determination, an order adjudicating fewer than all of the claims or parties '*** shall not terminate the action as to any of the claims or parties ***.'" (Emphasis sic.) General Acc. Ins. Co. v. Insurance Co. of North America (1989), 44 Ohio St.3d 17, 20. There are two scenarios which are implicated in the present case, both of which require a dismissal of this appeal for a variety of reasons. The first scenario is that the Pauls did not intend to keep Elaine Semirale as a defendant in the action when they filed the amended complaint. The second scenario is that Elaine Semirale remained a defendant after the Pauls filed their amended complaint. This court can only infer that Elaine Semirale remained a defendant because the caption to the amended complaint named "Angelo V. Semirale, Jr., et. al." as "Defendants," and then named Maggard as a new party defendant. -5- Moreover, the Pauls never technically dismissed Elaine Semirale from the action. Regarding the first scenario, the arbitrators found in favor of the Pauls, and Semirale, Jr. and Maggard filed a notice of appeal de novo from the decision and award. The trial court set the case for bench trial, and then issued a journal entry which indicated the parties reached a settlement. The trial court furthermore noted that the parties were to prepare a journal entry reflecting the settlement. This court assumes no such entry was prepared because the case file does not contain one. Compare, Harper v. Frantz (1989), 61 Ohio App.3d 341 (civil action could be voluntarily dismissed after parties enter into settlement agreement, where parties' agreed entry, though not filed, was read into record). The parties are referred to the well-established rule that a trial court speaks only through its journal. Atkinson v. Gramman Ohio Corp. (1988), 37 Ohio St.3d 80, 83; Marous v. Ohio Bell Tel. Co. (1992), 80 Ohio App.3d 306, 312. "A journal entry must contain a definitive pronouncement of the court's judgment." Rowe v. Rowe (1990), 69 Ohio App.3d 607, 613, citing Brackmann Communications, Inc. v. Ritter (1987), 38 Ohio App.3d 107, 109. There is no definitive pronouncement regarding the final disposition of the case, and thus no final appealable order. Assuming once again that Elaine Semirale was not a defendant in the action following the filing of the amended complaint, and notwithstanding the fact that the record contains no entry of dismissal, the February 1, 1994 order would still not be -6- appealable by the Pauls. Since there was "no just reason for delay" language, the fact that the record contains no final order with regard to the Pauls' three remaining claims, prohibits this court from reviewing the February 1, 1994 judgment. Chef Italiano Corp.; General Acc. Ins. Co.; R.C. 2505.02; Civ.R. 54(B). The second scenario is premised on the assumption that this case is composed of two plaintiffs, the Pauls, and three defendants, Angelo Semirale, Jr., Elaine Semirale, and Maggard. The trial court's February 1, 1994 journal entry which set forth the grant of partial summary judgment, only stated that the judgment was entered in favor of Semirale, Jr. and Maggard. Therefore, if Elaine Semirale was still a party to the action, this judgment did not adjudicate the two challenged claims against all of the defendants, and was thus not a final order because it did not contain "no just reason for delay" language. Chef Italiano Corp.; General Acc. Ins. Co.; R.C. 2505.02; Civ.R. 54(B). Appeal dismissed. -7- It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were not reasonable grounds for this appeal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA ANN BLACKMON, PRESIDING JUDGE SARA J. HARPER, JUDGE ANN DYKE, 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 .