Cleveland v. GrahamCleveland v. Graham
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: February 6, 2020
Criminal Appeal from the Cleveland Municipal Court Case No. 17CRB021726
Appearances:
Barbara A. Langhenry, Cleveland Director of Law, and Bryan Fritz and Alisa Boles, Assistant Prosecuting Attorneys, for appellee.
Jordan & Sidoti, L.L.P., and Marcus S. Sidoti, for appellant.
LARRY A. JONES, SR., P.J.:
{¶ 1} Defendant-appellant Christopher Graham appeals from the January 5, 2019 judgment of the Cleveland Municipal Court denying his motion to dismiss. For the reasons that follow, we dismiss this appeal for lack of a final, appealable order.
{¶ 3} Graham filed a motion to dismiss based on common-law qualified immunity. The city opposed the motion. The trial court held a hearing on the motion, and thereafter denied it, issuing a written opinion. Graham appealed. This court, sua sponte, ordered the parties to submit briefing on “whether an order denying a motion to dismiss criminal charges premised on common-law qualified immunity constitutes a final, appealable order.”
{¶ 4} Under long-standing law, an order must be final before it can be reviewed by an appellate court. Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 9. An appellate court has no jurisdiction to consider an order that is not final. Id. In general, a decision denying a motion to dismiss is not a final, appealable order. Lakewood v. Pfeifer, 83 Ohio App.3d 47, 50, 613 N.E.2d 1079 (8th Dist.1992). In the context of a criminal case, an order denying a motion to dismiss is not a final order. State v. Eberhardt, 56 Ohio App.2d 193, 197, 381 N.E.2d 1357 (8th Dist.1978).
R.C. 2505.02
{¶ 6}
[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
* * *
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
{¶ 7}
“Provisional remedy” means a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-facie showing pursuant to
section 2307.85 or2307.86 of the Revised Code , a prima-facie showing pursuant tosection 2307.92 of the Revised Code , or a finding made pursuant to division (A)(3) ofsection 2307.93 of the Revised Code .
{¶ 8} Graham contends that a decision regarding qualified immunity is a provisional remedy subject to appeal. In Shane v. Tracy, 8th Dist. Cuyahoga No. 77025, 2000 Ohio App. LEXIS 3844 (Aug. 24, 2000), this court decided otherwise,
{¶ 9} Soon after the bond was posted, the Department of Taxation filed a $43,000 claim against the plaintiff and the surety company for past due sales taxes. The plaintiff requested the surety company pay the amount. According to the plaintiff, the defendants — the Department of Taxation, its commissioner, and two employees — were aware of the surety bond and that payment to the Department of Taxation by the surety company was imminent. Nonetheless, according to the plaintiff, the defendants arranged a sting operation whereby an undercover agent made a purchase from the plaintiff at the business. After the purchase, the defendants obtained a search warrant for the business and arrested the plaintiff at the business for selling an item without a valid vendor‘s license.
{¶ 10} Six days later, the surety company paid the money to the Department of Taxation. According to the plaintiff, unbeknownst to him, the charges against him were dismissed. However, for several years thereafter, the defendants told him that the charges were still pending and would not be dismissed unless he signed a waiver of all potential civil claims against the defendants. After the plaintiff learned that the charges against him had been dismissed, he sued the defendants for
{¶ 11} The defendants filed a motion to dismiss on the ground, among others, that they had immunity from suit. The trial court denied the motion, and the defendants appealed and contended that the motion to dismiss should have been granted on immunity grounds. This court found no final, appealable order under
Finally,
R.C. 2505.02(B)(4) is not triggered because the order appealed from did not grant or deny a provisional remedy.R.C. 2505.02(A)(3) defines “provisional remedy” as a “proceeding ancillary to the action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, or suppression of evidence.” In Taylor v. County of Cuyahoga, 2000 Ohio App. LEXIS 137 (Jan. 20, 2000), Cuyahoga App. No. 75473, unreported, this Court found that a denial of a motion for summary judgment which was based on the defense of sovereign immunity did not constitute a provisional remedy, as a grant of summary judgment fully determines the underlying litigation and therefore is not ancillary to the action. Id. at 7-8. Furthermore, we held that even if it was a provisional remedy it did not meet the requirements underR.C. 2505.02(B)(4)(b) as a party is afforded meaningful review of the denial at the conclusion of the underlying action.Likewise, in the case herein, we find that a denial of a motion to dismiss does not constitute a provisional remedy as it is not ancillary to the action but goes to the essence of the action itself. Nor is a party precluded from meaningful review of the trial court‘s denial as it can be brought up on appeal following the conclusion of the action. * * *.
Shane v. Tracy, 8th Dist. Cuyahoga No. 77025, 2000 Ohio App. LEXIS 3844, 11-12 (Aug. 24, 2000).
Defendants rely on federal law in support of their argument that this is a provisional remedy. However, such arguments are rooted in the “collateral order doctrine” embodied in
Title 28 U.S.C. § 1291 which allows immediate appeal in the federal courts of certain “final decisions” that are completely separate from the merits of the action and effectively unreviewable on appeal after final judgment. Johnson v. Jones (1995), 515 U.S. 304, 310, 132 L. Ed. 2d 238, 115 S. Ct. 2151. Immediate appellate review of a qualified immunity denial “is a federal procedural right that simply does not apply in a nonfederal forum.” Johnson v. Fankell (1997), 520 U.S. 911, 912, 138 L. Ed. 2d 108, 117 S. Ct. 1800. (Frankell [sic] upheld the Idaho Supreme Court‘s decision that it lacked appellate jurisdiction, pursuant to Idaho‘s appellate rules, of a lower court‘s denial of a motion to dismiss based on “qualified immunity“). Therefore, as defendants concede, the procedural question whether immediate appeal is permitted is a question of state law. (Aplt‘s Brf. at 13). We find that Ohio law does not permit an appeal of the trial court‘s denial of defendants’ motion to dismiss based on the qualified immunity doctrine.
Shane at 12-13.
{¶ 13} Thus, under Shane, the denial of a motion to dismiss based on common law immunity is not a final, appealable order.
R.C. 2744.02(C)
{¶ 14} Graham also cites the exception found in
“Any Other Provision of the Law”
{¶ 15} As mentioned, in addition to orders denying alleged immunity for all claims under
{¶ 17} The court noted that
{¶ 18} The Summerville court considered the fiscal integrity and judicial economy involved in political subdivision immunity cases in terms of ending litigation early (if immunity applies) or promoting settlement (if immunity does not apply). Id. at ¶ 39. The court noted the “policy considerations apply equally whether the immunity in question is based on
{¶ 20} Regardless of the rationale for interlocutory review of an order denying immunity, allowing such review must be grounded in a legal basis —
{¶ 21} In light of the above, the judgment here is not a final, appealable order, and we are without jurisdiction to consider this appeal.
{¶ 22} Appeal dismissed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
LARRY A. JONES, SR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MICHELLE J. SHEEHAN, J., CONCUR