COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73051 STEPHANIE WALTERS : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION HAWKEN SCHOOL, et al. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT AUGUST 27, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-313600 JUDGMENT: Dismissed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: STEPHEN D. WALTERS, ESQ. 16700 Parkland Drive Shaker Hts., Ohio 44120 For Defendants-Appellees RONALD J. JAMES, ESQ. Hawken School, et al. CHERYL A. HIPP, ESQ. and Bruce Carr: JEFFREY J. WEDEL, ESQ. Squire, Sanders & Dempsey 4900 Society Center 127 Public Square Cleveland, Ohio 44114-1304 PATRICIA ANN BLACKMON, A.J.: Plaintiff-appellant Stephanie Walters appeals a decision by the trial court granting summary judgment in favor of defendants- -2- appellees Hawken School and Bruce Carr in a negligence action. Walters assigns the following error for our review: THE TRIAL COURT ERRED BY GRANTING THE JOINT MOTION FOR SUMMARY JUDGMENT OF THE DEFENDANTS- APPELLEES, HAWKEN SCHOOL AND BRUCE CARR. Having reviewed the record and the legal arguments of the parties, we dismiss this appeal for lack of a final appealable order. The apposite facts follow. On August 16, 1996, Stephanie Walters filed a negligence complaint against Hawken School, its director, Bruce Carr and one of its teachers, Kevin Mathews. The complaint alleged that, on March 7, 1992, Mathews committed a sexual assault against Stephanie who was then a student at Hawken School. The complaint also alleged that Hawken and Bruce Carr were negligent in the hiring, supervision, and retention of Mathews and negligently failed to report the sexual abuse. The complaint alleged that Mathews was allowed to continue working at Hawken until December of 1992 when he was asked to resign after making sexual advances toward another student. On October 28, 1996, Hawken School and Bruce Carr answered the complaint and filed a crossclaim against Kevin Mathews for indemnification and contribution. Hawken School and Bruce Carr moved for summary judgment alleging Walters failed to show that Hawken and Carr knew or should have known that Mathews would engage in unlawful sexual relations with Stephanie. They also argued that -3- the school was unaware of the incident until February 1996, after Stephanie reported the incident to her parents.1 On July 22, 1997, Mathews notified the trial court that he filed bankruptcy on July 1, 1997 and moved for a stay of the proceedings against him. On July 25, 1997, Hawken and Bruce Carr's motion for summary judgment was granted. On July 28, 1997, the court ordered the case stayed due to Mathews' bankruptcy filing. On Aug 21, 1997, Walters appealed the grant of summary judgment in favor of Hawken and Bruce Carr. On May 4, 1998, we dismissed the appeal for lack of a final appealable order. On May 14, 1998, we reinstated the appeal after the appellants furnished us with a journal entry indicating that the trial court granted summary judgment in favor of Mathews on December 19, 1997. However, upon further consideration, we again dismiss the appeal for lack of a final appealable order. This case is very similar to Kingsmen Enterprises, Inc. v. Kasunic (February 17, 1994), Cuyahoga App. No. 64720, unreported. In Kingsmen, the plaintiff contractor filed a two count complaint against the Kasunics for breach of a remodeling contract and to foreclose a mechanics' lien against their home. The Kasunics answered and asserted six counterclaims against Kingsmen (breach of contract, fraud and violations of various consumer statutes 1 Mathews was later indicted on three counts of corruption of a minor and one count of sexual battery. Pursuant to a plea agreement, he pleaded guilty to one count of corruption of a minor and one count of sexual battery. He was sentenced to 18 months in prison but was released on shock probation after serving just over one month in jail. -4- including the Consumer Sales Practices Act, Home Solicitation Sales Act, Retail Installment Sales Act, and Federal Truth in Lending Act. The Kasunics later filed an amended counterclaim adding claims against Kingsmen Home Improvement, Inc. and its principals, John and Irene Larussa for breach of contract. The Kasunics' amended counterclaim sought to impose personal liability on the Larussas and raised additional claims of negligence and slander of title. The trial court bifurcated the third party claims against the Larussas from the claims against Kingsmen. The case went to trial on the Kingsmen's breach of contract claim against the Kasunics and on the Kasunics' counterclaims against Kingsmen for fraud and consumer law violations. The trial court granted a directed verdict in favor of Kingsmen on the Kasunics' counterclaims for fraud and consumer law violations. The jury rendered a verdict of $18,000 for Kingsmen on its breach of contract claim and awarded $12,000 to the Kasunics on their breach of contract counterclaim. However, the trial court failed to issue any orders with respect to the Kasunics' third party claims against Kingsmen Home Improvement, Inc. or the negligence and slander of title counterclaims against Kingsmen. The Kasunics appealed to this court. The appeal was dismissed for lack of a final appealable order on April 6, 1992. Thereafter, the Kasunics filed a motion in the trial court to stay collection by Kingsmen of the $6,000 net judgment. Both parties revealed that Kingsmen failed a petition for bankruptcy on July 31, 1991 - after -5- trial and during the pendency of the first appeal. Thereafter, on August 12, 1992, the trial court granted the motion to stay collection proceedings. Thereafter, the Larussas filed a motion for summary judgment on the third party claims brought against them by the Kasunics. On November 20, 1992, the trial court granted summary judgment in favor of the Larussas and dismissed all remaining claims with prejudice. The Kasunics again appealed and we again dismissed their appeal for lack of a final appealable order. The record demonstrates that no final judgment had been rendered by the trial court concerning Kingsmen as of the July 31, 1991 filing of Kingsmen's bankruptcy petition. The trial court's journal entries prior to Kingsmen's bankruptcy petition did not dispose of the Kasunics' negligence and slander of title counterclaims against Kingsmen or any of the Kasunics' third-party claims against [Kingsmen Home Improvement, Inc.] or the Larussas. *** [T]he trial court was precluded by federal bankruptcy law from continuing judicial proceedings against the debtor, Kingsmen. The trial court's continuation of judicial proceedings against Kingsmen and subsequent efforts to transform its prior interlocutory orders concerning Kingsmen into a final judgment by dismissing the remaining claims involving Kingsmen violated the automatic stay provision. Id. In this case, Mathews filed for bankruptcy on July 1, 1997. Under 11 U.S.C. 362(a)(1), the filing operated as an automatic stay of the proceedings against him. As of July 1, 1997, no final judgment had been entered against Mathews in the case. Due to the automatic stay, the trial court was precluded from continuing the -6- proceedings against Mathews. Consequently, the trial court's December 19, 1997 journal entry granting summary judgment in favor of Mathews violated the automatic stay provision. In this case, the trial court did not grant Mathews' bankruptcy stay until after final judgment had been rendered in favor of Hawken and Carr. However, we must note that, under 11 U.S.C. 362(a)(1), proceedings against a debtor are automatically stayed upon the filing of a bankruptcy petition. In any event, the July 25, 1997 judgment in favor of Hawken and Carr did not contain the no just reason for delay language required by Civ.R. 54(B). Because of the stay, the trial court's subsequent attempt to make the judgment a final appealable order by granting summary judgment in favor of Mathews was invalid. Accordingly, this court lacks jurisdiction to consider this appeal. This appeal is hereby dismissed. Appeal dismissed. It is ordered that appellees recover of appellant 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. DYKE, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .