654 N.E.2d 368 | Ohio Ct. App. | 1995
Defendant-appellant Medina Supply Company appeals the grant of a motion by plaintiffs-appellees to certify the class in a suit alleging appellant supplied *474 defective concrete. Before reaching the merits of the appeal, it must be determined whether the certification of a class is a final, appealable order.
R.C.
"An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified or reversed, with or without retrial."
In Amato v. Gen. Motors Corp. (1981),
Amato was overruled in Polikoff v. Adam (1993),
The holding of Polikoff was foreshadowed in dissents written by Justices Andy Douglas and Alice Robie Resnick in DaytonWomen's Health Ctr. v. Enix (1990),
"[A] special proceeding is an action: (1) which has been brought about by specific legislation creating a special type of action; (2) and is either (a) not recognized at common law,or (b) not part of our standard civil (or criminal) practice. An order granting certification of a defendant (or plaintiff) class does not meet this definition." (Emphasis sic.) Id. at 74,
Justice Douglas noted that class actions were known at common law and are a part of our standard civil practice. He concluded the grant of a class certification is not a final, appealable order. Such an order does not determine the action or prevent a judgment but is only a necessary step to a final determination of the class action suit.
Justice Alice Robie Resnick, author of Polikoff, argued the certification of a class action is a preliminary proceeding and not an order entered in a special proceeding:
"[I]t can be seen that certification of a class neither determines the action nor prevents a judgment. At any time during the proceedings the court can decertify part or all of the class. It would be wholly inconsistent with a considerable line of cases to hold that if a party opposing certification does not appeal within thirty days of certification its right to appeal is lost. The reason is that at any time during trial of the certified class action the court may change its previous order. There would be no reason for a party to attempt an appeal from such an obviously interlocutory order." Id. at 76,
Although these views offer some illumination on the matter at hand, it still is necessary to apply the test set forth inPolikoff to an order granting a motion to certify a class to see if it is or is not a final, appealable order. Class action suits were known at common law. See Hansberry v. Lee (1940),
The next inquiry is in regard to the nature of the relief which is sought by the party. There was no special petition filed by the plaintiff seeking a remedy conferred by an Ohio statute. The proceeding was not an independent judicial inquiry, as the issue of class certification is one of law and fact arising from the pleadings. See, also, Indiana Ins. Co. v.Carnegie Constr. Co. (1993),
A grant of class certification is not a final, appealable order pursuant to Polikoff.
The appeal is dismissed.
Appeal dismissed.
BLACKMON and PORTER, JJ., concur. *476