COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74400 SOPHIA M. STEGAWSKI : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION STANLEY SZELIGA, ET AL. : : PER CURIAM Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-276863 JUDGMENT: AFFIRMED IN PART, DISMISSED IN PART DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: MICHAEL DRAIN (#0003656) 41 N. Main Street Chagrin Falls, Ohio 44022 For Defendants-Appellees, TEDDY SLIWINSKI (#0024901) Gene Kasky and Teddy Sliwinski: 5810 Fleet Avenue Cleveland, Ohio 44105 For Defendant-Appellee, RAYMOND J. GRABOW (#0001370) Alliance of Poles: Crown Centre - Suite 425 5005 Rockside Road Independence, Ohio 44131 PER CURIAM: Plaintiff-appellant Sophia M. Stegawski ( appellant ) appeals from the trial court's grant of summary judgment in favor of defendants-appellees Gene Kasky, Ted Sliwinski, Stanley Szeliga, -2- and Tomasz Szeliga and the denial of appellant's motion for summary judgment in an action brought for recission of a note and mortgage and for fraud. Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED BY GRANTING GENE KASKY'S MOTION FOR SUMMARY JUDGMENT FOR $68,000 PLUS 12% PER ANNUM WHEN THE SAME WAS INDUCED BY FRAUD. II. THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE DEFENDANT ALLIANCE OF POLES. III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF EACH DEFENDANT INCLUDING TED SLIWINSKI, STANLEY SZELIGA AND THOMAS SZELIGA. Finding the appeal to lack merit, the judgment of the trial court is affirmed in part and dismissed in part. I. On September 15, 1994, appellant filed a complaint against Stanley Szeliga, Tomasz Szeliga, the New Warsaw Deli, Inc., Warsaw Supermarket, Inc., Gene Kasky, and Teddy Sliwinski. The complaint sought the rescission of a promissory note executed in favor of Kasky. Appellant also brought a count of fraud against the defendants. Kasky borrowed fifty thousand dollars ($50,000.00) from Third Federal Savings and Loan. On November 23, 1993, a cognovit promissory note for that amount was executed by which appellant, Stanley Szeliga, Tomasz Szeliga, and Warsaw Supermarket, Inc. obtained the funds from Kasky. Appellant's residence served as the collateral for the loan. The loan proceeds were used for the -3- start-up costs associated with the New Warsaw Deli, Inc. Appellant received one-third of the shares of stock in the corporation. The venture ultimately failed and appellant and the Szeligas defaulted on the loan. Kasky answered appellant's complaint and filed a counterclaim and cross-claim in which he declared his loan due. Kasky asked the trial court for fifty thousand dollars ($50,000.00) plus interest from appellant and the Szeligas. Kasky also brought a third-party complaint against other parties having an interest in appellant's residential property. The only one of the third-party defendants pertinent to the resolution of this appeal is the Alliance of Poles. On December 8, 1993, the Alliance of Poles loaned appellant one hundred twenty-five thousand dollars ($125,000.00), also secured by a mortgage on appellant's home. Appellant defaulted on this loan as well. The Alliance of Poles filed a counter-claim and cross-claim asking that appellant's property be foreclosed upon and the mortgage loan repaid. Appellant answered the Alliance of Poles' counterclaim, raising as a defense that the loan agreement with the Alliance of Poles was void because it violated the Truth in Lending Act, 15 U.S.C. S 1601, et seq. Appellant cross-claimed against the Alliance of Poles for the violations of the Truth in Lending Act, unfair trade practices, slander of title and violation of good faith. Appellant asked for rescission of the mortgage loan as well as other damages. The trial court referred the matter to a foreclosure -4- magistrate for the court of common pleas. Appellant filed a motion for partial summary judgment against the Alliance of Poles for her claim that the Alliance of Poles violated the Truth in Lending Act. The Alliance of Poles filed a motion for summary judgment asking for a money judgment on the mortgage note and foreclosure on the property. Kasky filed his summary judgment motion asking for judgment on the promissory note and foreclosure. Sliwinski also filed a motion for summary judgment. The trial court granted Kasky's motion for summary judgment. The trial court entered judgment in favor of Kasky against appellant, Stanley Szeliga, Tomasz Szeliga, and Warsaw Supermarket for sixty-eight thousand dollars ($68,000.00) plus interest. Kasky was to submit a proposed magistrate's decision. The trial court denied both appellant's and the Alliance of Poles' motions for summary judgment. The summary judgment motion of Sliwinski was granted. The action was referred to the magistrates for further proceedings. In its decision, the magistrate found that the trial court had granted Kasky's motion for summary judgment as well as the motion of Sliwinski and another party who is not part of this appeal. The magistrate found that appellant's motion for partial summary judgment against the Alliance of Poles was denied as was the motion of the Alliance of Poles. The magistrate found that there was no just reason to delay as to the judgment in favor of Kasky. Appellant failed to object to the magistrate's decision which was then adopted by the trial court. -5- II. In her first assignment of error, appellant argues that the trial court erred by granting summary judgment to Gene Kasky. Appellant did not oppose Kasky's summary judgment motion but instead filed a motion for a new trial after the trial court granted summary judgment to Kasky. The trial court denied appellant's motion for a new trial. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp v. Catrett (1986), 477 U.S. 317, 322. The moving party must be able to point to some -6- evidence which is listed under Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party lacks evidence to support the nonmoving party's claim. If the moving party satisfies this initial burden, then the nonmoving party has a reciprocal burden to set forth specific facts showing there is a genuine issue for trial. If the nonmoving party does not respond, then summary judgment should be entered for the moving party if appropriate. Dresher v. Burt (1996), 75 Ohio St.3d 280. Appellant never responded to Kasky's motion for summary judgment and did not meet her burden in opposing summary judgment as set forth in Dresher. Kasky supported his summary judgment motion with evidence proving appellant and the Szeligas were in default and that foreclosure was appropriate. Appellant's only opposition to Kasky's summary judgment motion came in her motion for a new trial which is a nullity as no trial was held. Appellant alleged in her complaint that the promissory note was obtained through fraud yet did not plead her claim of fraud with particularity as required under Civ.R. 9(B). See Okocha v. Fehrenbacher (1995), 101 Ohio App.3d 309. Because Kasky's motion was unopposed and supported by adequate and appropriate evidence under Civ.R. 56(C), entry of summary judgment in his favor was appropriate. Appellant's first assignment of error is overruled. III. Appellant's second assignment of error challenges the trial court's denial of her motion for partial summary judgment. The -7- trial court denied both appellant's motion for partial summary judgment against the Alliance of Poles and the Alliance of Poles' motion for summary judgment. This court's appellate jurisdiction extends only to review of final orders or judgments of a trial court. See Section 3, Article IV, Ohio Constitution. Generally, the denial of a motion for summary judgment is not a final judgment from which an appeal may be taken. State, ex rel. Overmeyer, v. Walinski, Judge (1966), 8 Ohio St.2d 23. The denial of a motion for summary judgment is not, by itself, a final appealable order under R.C. 2505.02. Fiorentino v. Lightning Rod Mut. Ins. Co. (1996), 114 Ohio App.3d 188. Because the order was not final, this court will not consider appellant's second assignment of error. Appellant's appeal against the Alliance of Poles is dismissed. IV. Appellant's third assignment of error asserts that the trial court erred in granting summary judgment in favor of Ted Sliwinski, Tomasz Szeliga, and Stanley Szeliga. There is no record of either Tomasz or Stanley Szeliga filing a motion for summary judgment and, consequently, no order granting summary judgment to those defendants was made below. An appeal cannot be taken from a non- existent judgment. Summary judgment was granted to Sliwinski. However, there was no determination made by the magistrate or the trial court that there was no just reason for delay in appealing the decision. -8- Civ.R. 54(B) provides: (B)Judgment upon multiple claims or involving multiple parties. 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 determinationthat there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all 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 all the parties. The Supreme Court of Ohio has stated: When a court enters final judgment as to fewer than all of the claims or parties, it must expressly state that there is no just reason to delay an appeal on that judgment. Without such express determination, an order adjudicating fewer than all the claims or 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 all the parties.' General Acc. Ins. Co. v. Insurance Co. of North America (1989), 44 Ohio St. 3d 17, 20, quoting Civ.R. 54(B). The judgment is subject to revision in the future by the trial court as the claim is not adjudicated with finality. State ex rel. Electrolert, Inc. v. Lindeman (1994), 99 Ohio App.3d 154, 157. If an order is not final, then an appellate court is without jurisdiction to review -9- the order. General Acc. Ins. Co., supra at 20. Because the trial court did not include the Civ.R. 54(B) language certifying that there was no just reason for delay, this court is without jurisdiction to consider appellant's appeal against Sliwinski. Appellant's appeal as to defendant-appellee Sliwinski is dismissed. Judgment affirmed in part and dismissed in part. It is ordered that appellees recover of appellant their 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 -10- 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, ADM. JUDGE TIMOTHY E. McMONAGLE, JUDGE LEO M. SPELLACY, JUDGE N.B. This 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(B) 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 journalization of this court's announcement of decision by the .