# Cleveland Bd. of Education v. Lesko

> Ohio Court of Appeals · April 12, 1990 · 2 Ohio App. Unrep. 426

URL: https://www.frixlaw.com/law-library/cases/6707570

## Case

- **Full name:** Cleveland Bd. of Education v. Lesko
- **Court:** Ohio Court of Appeals
- **Decided:** April 12, 1990
- **Citations:** 2 Ohio App. Unrep. 426
- **Precedential status:** Published
- **Opinion:** Dissent by Sweeney
- **Judges:** Dyke, Patton, Sweeney
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

SWEENEY, J.,
Dissenting:
I am in agreement with the majority's ultimate determination to reverse and remand this case for further proceedings, but I respectfully disagree with the means with which this determination was made. Specifically, I *434 take issue with the majority's decision to not follow this Court's recently published ruling of Aldrete v. Foxboro Co. (1988), 49 Ohio App. 3d 81 and our holding in Board of Education v. Regner, et al (Oct. 26, 1989), Cuyahoga App. Nos. 56053, 56054 and 56060, unreported, which relied upon Aldrete .
The majority attempts to distinguish the present case from Aldrete by stating that the tort and contract claims sub judice are not inextricably intertwined as they were in Aldrete , pointing out that the prayer for damages in Aldrete reflected the intertwining aspect of those claims. Upon review of the record in this case, I see no reason to not apply Aldrete . The plaintiffs tort and contract claims all arise from the same conduct, to wit, the alleged faulty construction of the school building. The intertwining nature of the claims is further evidenced by the plaintiff's amended complaint, which, rather than making a specific prayer for damages on each count, instead makes a general undifferentiated prayer for damages at the close of the pleading. The tort and contract claims are thus differing theories of recovery arising out of a single set of facts. Aldrete, supra, syllabus.
The majority also cites to Noble v. Colwell (1989), 44 Ohio St. 3d 92 . In Noble , a counterclaim was pending and unresolved at the time of the court's judgment, and the court did not make a Civ. R. 54(B) determination of no just reason for delay relative to the rulings on the claims stated in the complaint. In the present case, the court made the Civ. R. 54(B) determination even though other claims remained unresolved.
The present case more closely resembles a companion case of Noble , that of Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St. 3d 86 . In Chef Italiano Corp., the court reviewed the application of R.C. 2505.02 and Civ. R. 54(B) relative to a multi-party, multi-claim case. The court ruled that an order of a court is final and appealable only if the requirements of R.C. 2505.02 and Civ. R. 54(B) are met. Id., p. 88, citing General Electric Supply Co. v. Warden Electric, Inc. (1988), 38 Ohio St. 3d 378 . There, as here, the court's action did not determine plaintiff's action nor prevent a judgment against the appellees because certain claims remained unresolved. Id., p. 88-89. Accordingly, the order of the court was "not a final, appealable order pursuant to R.C. 2505.02 regardless of the presence of Civ. R. 54(B) language." Id., p. 89.
Lastly, I would remind the majority that Aldrete is controlling authority on this Court unless and until it is reversed or modified. Supreme Court Rules for the Reporting of Opinions, Rule 2(G)(2). The majority does neither of these options. It simply chooses to not follow Aldrete without expressly reversing or modifying that authority.
Accordingly, I would reverse and remand this matter for lack of a final appealable order.
Judgment reversed and cause remanded.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6707570. Public record. Not legal advice.