[Cite as Rojas v. Concrete Designs, Inc., 2017-Ohio-379.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 103418 and 103420



                               JOSHUA ROJAS, ET AL.
                                                            PLAINTIFFS-APPELLEES

                                                      vs.

                    CONCRETE DESIGNS, INC., ET AL.
                                                            DEFENDANTS-APPELLANTS




                                            JUDGMENT:
                                             DISMISSED


                                      Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                           Case Nos. CV-12-795422 and CV-12-795474

        BEFORE: Stewart, J., Kilbane, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: February 2, 2017
ATTORNEYS FOR APPELLANTS

For Concrete Designs, Inc., et al.

Clifford C. Masch
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Ave., West
Cleveland, OH 44115

For Westfield Insurance Co.

John J. Haggerty
Nicholas A. Salter
Fox Rothschild L.L.P.
2700 Kelly Rd., Suite 300
Warrington, PA 18976


ATTORNEYS FOR APPELLEES

For Joshua Rojas

Patrick Merrick
Steuer Escovar Berk & Brown, Co., L.P.A.
14701 Detroit Road, Suite 455
Lakewood, OH 44107

Kathleen St. John
David M. Paris
Andrew R. Young
Thomas Mester
Nurenberg, Paris, Heller & McCarthy Co., L.P.A.
600 Superior Ave., East, Suite 1200
Cleveland, OH 44114
For Kiara E. Torres

John M. Gundy
Stephen J. Tylman
The Gundy Law Firm
6105 Parkland Blvd., Suite 140
Mayfield Heights, OH 44124

For Jovanny Martinez

Holly Olarczuk-Smith
Deborah W. Yue
Gallagher Sharp
Bulkley Building, 6th Floor
1501 Euclid Ave.
Cleveland, OH 44114
MELODY J. STEWART, J.:

       {¶1} Plaintiffs-appellees Joshua Rojas and Kiara Torres were passengers in a

vehicle driven by defendant-appellee Jovanny Martinez.               Martinez’s vehicle and a

vehicle owned by defendant-appellant Concrete Designs, Inc. and driven by its employee,

defendant-appellant Brian English, collided on a bridge. Rojas and Torres suffered

severe injuries. Despite Martinez having earlier pleaded guilty to misdemeanor counts of

negligent assault with respect to the injuries suffered by the plaintiffs, a jury found that

English and Concrete Designs were solely at fault in the collision — Martinez was found

to have no liability. The jury awarded Rojas a total of $34.6 million in damages and

awarded Torres a total of $7.8 million. The court denied defendants’ motion for a new

trial, and ordered them to pay prejudgment interest on the award. English and Concrete

Designs appeal.

       {¶2} Rojas and Torres filed separate complaints that were consolidated for trial.

Both complaints raised similar claims for negligence and negligent entrustment.1 After

setting the matter for oral argument, we discovered a potential impediment to our

jurisdiction to hear the appeal — the negligent entrustment claims filed by both plaintiffs

appeared to be unresolved.        We asked the parties to file supplemental briefs to address

the question “whether all claims asserted against all parties have been adjudicated

consistent with Civ.R. 54(B), with particular attention given to the disposition, if any, of

the negligent entrustment claims asserted by both plaintiffs.”


           Torres also filed a claim against her insurance company seeking a declaration of UM/UIM
       1
       {¶3} Appellants English and Concrete Designs filed a supplemental brief in which

they stated that “the negligent-entrustment claims were never tried and never dismissed”

and that “the judgment at issue is not final.” Rojas and Torres filed a supplemental brief,

as did Martinez, a nominal appellee in this appeal.2 Rojas and Torres maintained that

they abandoned the negligent entrustment claim at trial. They also argued, along with

Martinez, that the negligent entrustment claims were “alternative” theories of liability, the

damages for which would have been subsumed within the damages award for the

negligence causes of action.




coverage, but that claim was dismissed prior to trial. In addition, the defendants filed cross claims
against each other seeking indemnity and contribution.

           None of the assignments of error asserted by English and Concrete Designs directly
       2


challenge the jury verdict against Martinez. For practical purposes, this means that the jury verdict
finding Martinez not liable is res judicata, even if the verdict against English and Concrete Designs
was to be reversed on appeal. Nevertheless, Martinez is a named party to the appeal and has the
right to be heard on the finality issue.
       {¶4} Our appellate jurisdiction is limited to reviewing orders that are both final

and appealable. An order is “final” only if it meets the criteria set forth in R.C. 2505.02;

as applicable here, “[a]n order that affects a substantial right in an action that in effect

determines the action and prevents a judgment.” See R.C. 2505.02(B)(1). As used in

R.C. 2505.02(B)(1), the word “action” refers to all claims asserted against all parties.

See Civ.R. 54(B) (“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

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* * *.”).

       {¶5} Both plaintiffs filed negligent entrustment claims alleging that Concrete

Designs negligently entrusted its vehicle to English. As acknowledged by Concrete

Designs, those claims were not resolved, either by amendment of the complaint or

judgment. This appears to be a clear violation of Civ.R. 54(B).

       {¶6} The appellees do not dispute that there has been no resolution of the negligent

entrustment claims.     Instead, Rojas and Torres argue that they “abandoned” their

negligent entrustment claims. Abandoning a claim will not result in a final order under

Civ.R. 54(B) because abandonment does not result in a final disposition. “To allow a

court to find implicitly that one party abandoned his claim would thus significantly alter

the definition of a final, appealable order. We decline to make such an alteration.”

IBEW, Local Union No. 8 v. Vaughn Indus., L.L.C., 116 Ohio St. 3d 335,

2007-Ohio-6439, 879 N.E.2d 187, ¶ 11.
       {¶7} Rojas, Torres, and Martinez next argue that the negligent entrustment claims

were rendered moot by the jury’s verdict on the negligence claims. They argue that the

negligent entrustment claims were alternative theories of liability based on the same set of

facts as the plaintiffs’ negligence claims — the “negligence” for purposes of negligent

entrustment was the same conduct alleged in the negligence claim. See, e.g., McCarty v.

Lynn, 67 Ohio App. 3d 369, 375, 587 N.E.2d 312 (3d Dist.1990) (liability for negligent

entrustment “is not based upon ownership or agency, but upon the combined negligence

of the owner and driver; the owner in entrusting the vehicle to an incompetent driver, and

the negligence of the driver in its operation.”). They insist that had the jury found for the

plaintiffs on both the negligent entrustment and negligence claims, the damages for

negligent entrustment would have been offset from the negligence claims, so it did not

matter that the court failed to dispose of the negligent entrustment claim in this case.
       {¶8} In support of their argument, the appellees cite Francis Corp. v. Sun Co., 8th

Dist. Cuyahoga No. 74966, 1999 Ohio App. LEXIS 6306 (Dec. 23, 1999). In Francis, a

tanker truck owned by the defendant trucking company spilled gasoline onto the

plaintiff’s property. The property owner brought an action raising causes of action for

negligence, trespass, strict liability, and nuisance. The case proceeded to trial only on the

negligence claim, and resulted in a verdict for the plaintiff property owner. On appeal

from that judgment, we considered whether the judgment satisfied Civ.R. 54(B). We

found the remaining claims moot because “the measure of damages for tort harm to land

is the same whether the theory of recovery is trespass, nuisance, negligence, or strict

liability.” Id. at *4.    Finding that “there was no potential for a different or larger

recovery under any of these theories,” we concluded that “[t]he four counts of the

complaint here were not separate and distinct claims but simply alternative theories of

liability based upon a single set of facts.” Id. at * 5-6.

       {¶9} Francis correctly understood that had plaintiff prevailed on “alternative”

theories of liability, the damage award for each theory would have overlapped, leaving

just one award.     But Francis went further and incorrectly applied that analysis to

unresolved causes of action without considering the affect a declaration of mootness

could have on an unresolved cause of action.
       {¶10} Causes of action for negligence and negligent entrustment exist

independently, regardless of whether their damages are one and the same. Clark v.

Stewart, 126 Ohio St. 263, 185 N.E. 71 (1933), paragraph one of the syllabus (“[i]n an

action for damages for personal injury, plaintiff has full right to pursue both the theory of

respondeat superior and that defendant knowingly entrusted the operation of his car to an

incompetent driver, as the two theories are in no wise repugnant.”). The key word in the

quoted portion of Clark is the word “pursue” — the plaintiff has the right to pursue

separate causes of action and have them resolved.         What is more, even though the

damages for the claims might be identical, the elements of the respective torts are not.

To prevail on a negligent entrustment action, the plaintiff must show that the defendant

breached a duty to supervise a person, to not entrust that person with a dangerous

instrument, and that the these breaches proximately caused the plaintiff’s injuries.

Safeco Ins. Co. of Am. v. White, 122 Ohio St. 3d 562, 2009-Ohio-3718, 913 N.E.2d 426, ¶

36; Gulla v. Straus, 154 Ohio St. 193, 195, 93 N.E.2d 662 (1950), paragraph three of the

syllabus.   The additional elements of entrusting and supervising make negligent

entrustment a different cause of action from simple negligence. The plaintiff is entitled

to offer evidence on both causes of action.
          {¶11} Suppose on similar facts to this case that, applying Francis, we found a

negligent entrustment cause of action to be moot because the damages for that cause of

action were duplicated by a negligence cause of action. Then suppose we heard the

appeal on the merits of a negligence cause of action and found that the court erred by

refusing to direct a verdict in favor of the defendants. Under these facts, the plaintiff

would no longer think that his negligent entrustment claim was moot, because it could be

his only viable ground for recovery following a reversal on the negligence claim. This is

the difficulty with Francis — it declared causes of action moot without considering that

subsequent action on appeal might render something nonmoot.

          {¶12} It would be wrong under our hypothetical to say that our act of vacating the

negligence cause of action would revive the formerly moot negligent entrustment cause of

action.       It is a fundamental principle of appellate jurisdiction that jurisdiction is

determined at the time the notice of appeal is filed.              And appellate jurisdiction is

something that either exists or does not exist at the time the notice of appeal is filed —

subsequent action by the court of appeals cannot make final what was previously not

final.3



           There are circumstances in which this court, having a valid final order on appeal, will
          3


remand a case to the trial court to decide a Civ.R. 60(B) motion for relief from judgment filed before
the notice of appeal. See Majnaric v. Majnaric, 46 Ohio App. 2d 157, 347 N.E.2d 552 (9th
Dist.1975). That happens because once a case has been appealed, the trial court loses jurisdiction
except to take action in aid of the appeal. In re S.J., 106 Ohio St. 3d 11, 2005-Ohio-3215, 829
N.E.2d 1207, ¶ 9. But at all events a remand is allowable only because the appellate court’s
jurisdiction was properly invoked in the first instance.
       {¶13} Civ.R. 54(B) is a rule of judicial economy, intended to “make a reasonable

accommodation of the policy against piecemeal appeals with the possible injustice

sometimes created by the delay of appeals.” Alexander v. Buckeye Pipe Line Co., 49
Ohio St. 2d 158, 159, 359 N.E.2d 702 (1977). In addition, Civ.R. 54(B) serves to “insure

that parties to such actions may know when an order or decree has become final for

purposes of appeal.” Pokorny v. Tilby Dev. Co., 52 Ohio St. 2d 183, 186, 370 N.E.2d 738

(1977).

       {¶14} Civ.R. 54(B) is clear: an order is final only if all of the claims against all of

the parties have been resolved, unless the trial judge certifies that there is no just reason

for delay. The appellants concede that this appeal is not final because the court failed to

dispose of the negligent entrustment cause of action and did not certify that there was no

just reason for delay.    There is no question that the court failed to dispose of the

negligent entrustment cause of action. For their part, the appellees offer an argument

that at best leads to the possibility that appellate jurisdiction in a case could be fluid.

Because their position is inconsistent with Civ.R. 54(B), we reject it. We lack a final

order and thus have no jurisdiction to decide this appeal.

       {¶15} Appeal dismissed.

       It is ordered that appellees recover appellants costs herein taxed.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, JUDGE

FRANK D. CELEBREZZE, JR., J., CONCURS;
MARY EILEEN KILBANE, P.J., DISSENTS (WITH SEPARATE OPINION)

MARY EILEEN KILBANE, P.J., DISSENTING:

       {¶16} I respectfully dissent. I would find that this court has jurisdiction to hear

the appeal.

       {¶17} While the plaintiffs’ complaints both allege negligent entrustment against

Concrete Designs and that English was in the course and scope of his employment

(respondeat superior) with Concrete Designs at the time of the collision, it was later

determined that English was the sole owner of Concrete Designs and the parties stipulated

prior to trial that English was in the course and scope of his employment with Concrete

Designs at the time of the accident. The trial court instructed the jury of the same, and

this stipulation was reflected in the amended joint jury instructions of all parties. This

stipulation was further memorialized in the trial court’s jury instructions where the court

stated that “[t]he parties stipulate or agree that the defendant, Brian English, was driving

the vehicle in the course and scope of his employment with Concrete Designs[.]”

       {¶18} Following the revelation that English was the sole owner of Concrete

Designs and the stipulation on respondeat superior, it appears from the record and the

plaintiffs contend that they abandoned their negligent entrustment claims. The plaintiffs

did not discuss negligent entrustment in opening or closing statements, did not offer any

evidence on negligent entrustment at trial, and they did not request a jury instruction on
negligent entrustment. Their claims against Concrete Designs went to the jury on the

stipulation that English was in the course and scope of his employment with Concrete

Designs at the time of the accident.

       {¶19} Civ.R. 54(B) provides that

       [w]hen more than one claim for relief is presented in an action, whether 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.

       {¶20} In Aldrete v. Foxboro Co., 49 Ohio App. 3d 81, 82, 550 N.E.2d 208 (8th

Dist.1988), we stated:

       The term “claim,” as used in the context of Civ. R. 54(B), refers to a set of
       facts which give rise to legal rights, not to the various legal theories of
       recovery which may be based upon those facts. CMAX, Inc. v. Drewry
       Photocolor Corp. (9th Cir. 1961), 295. F.2d 695, 697. Unless a separate
       and distinct recovery is possible on each claim asserted, multiple claims do
       not exist. Local P-171 v. Thompson Forms Co. (7th Cir. 1981), 692 F.2d
1065, 1970-71.

See also Francis, 8th Dist. Cuyahoga No. 74966, 1999 Ohio App.LEXIS 6306,

*5.
       {¶21} In Francis, there was no formal disposition of plaintiffs’ strict liability,

trespass, and nuisance claims. On appeal, we concluded that this court has jurisdiction,

finding that

       [p]laintiffs’ other claims were rendered moot by the judgment on plaintiffs’
       negligence claim. Strict liability and negligence are complementary but
       distinct alternative theories of liability. * * * The measure of damages for
       tort harm to land is the same whether the theory of recovery is trespass,
       nuisance, negligence, or strict liability. Thus, there was no potential for a
       different or larger recovery under any of these theories.
       {¶22} Moreover, “a judgment in an action which determines a claim in that action

and has the effect of rendering moot all other claims in the action as to all other parties to

the action is a final appealable order pursuant to R.C. 2505.02, and Civ.R. 54(B) is not

applicable to such a judgment.” Wise v. Gursky, 66 Ohio St. 2d 241, 243, 421 N.E.2d 150

(1981); Watershed Mgt., L.L.C. v. Neff, 4th Dist. Pickaway No. 10CA42,

2012-Ohio-1020. “Essentially, when a judgment on fewer than all claims renders the

remaining claims moot, it becomes a judgment on all the claims, and Civ.R. 54(B) no

longer applies.” Neff at ¶ 19.

       {¶23} In Wise, the appellant argued that the judgment entry as to plaintiff’s

personal complaint was not final and appealable because this judgment did not address

and dispose of defendant’s third-party complaint for indemnification or contribution, or

determine the rights and liabilities of the parties to the third-party complaint. Id. at

242-243. The Ohio Supreme Court found that the judgment on the jury verdict not only

determined plaintiff’s action against the defendant, but it also determined all the claims

and issues in defendant’s third-party action. The claims set forth in the third-party

complaint and the determination of the rights and liabilities of the parties to the

third-party action were rendered moot by the judgment in favor of defendant as to

plaintiff’s complaint. Id. at 243.

       {¶24} I would find Wise and Francis applicable to the instant case. Here, the trial

court’s judgment on the jury’s verdict resolved all liability issues between the parties.

When English was found to be 100 percent at fault for the collision, Concrete Designs
became vicariously liable for the entire verdict. With 100 percent fault on Concrete

Designs through English, as the owner, there was no different or greater recovery the

plaintiffs could have obtained had they pursued their negligent entrustment theory. By

not pursuing the negligent entrustment theory at trial, the plaintiffs abandoned that claim.

When the trial court entered judgment on the jury’s verdict, denied the motion for new

trial, and granted prejudgment interest, there were no remaining claims for the court to

resolve. As a result, plaintiffs waived their right to further adjudicate their negligent

entrustment claims and rendered these claims moot.

       {¶25} Therefore, I would find that there were no claims remaining for the trial

court to resolve, and we have jurisdiction to review this appeal. Subsequently, I would

address the merits of the appeal. In doing so, I would affirm the trial court’s judgment.