2018-Ohio-5466

Ohio Ct. App. 2d

2018

DAYTON CHILDRENS HOSPITAL, et al. v. GARRETT DAY LLC, et al.

Appellate Case No. 28047

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

December 12, 2018

[Cite as Dayton Childrens Hosp. v Garrett Day, L.L.C., 2018-Ohio-5466.]

Trial Court Case No. 2016 CV 02061 [Civil Appeal from Common Pleas Court]

DECISION AND ENTRY

PER CURIAM:

{¶ 1} This matter is before the court for resolution of our show cause order. The case involves an appeal and cross-appeal taken from a June 7, 2018 pre-trial decision of the trial court. The June 7 Decision sustained in part, and overruled in part, the parties’ cross-motions for summary judgment. The trial court noted that it had “entered final judgment on Plaintiffs’ claims of fraud and negligent misrepresentation and Defendants’ claims of fraud,” and certified that there was no just reason for delay under Civ.R. 54(B). The remaining claims have not yet been resolved.

{¶ 2} Both sides appealed. On review of the civil docket statements and the first brief filed in the case, it appeared to this court that the June 7 Decision was final and appealable only with respect to those claims on which the trial court granted summary judgment and entered final judgment: Plaintiffs’ fraud and negligent misrepresentation claims, and Defendants’ fraud claim. The trial court overruled the motions for summary judgment as to the rest of the claims, which remain pending. The pending claims appear to be the subject of the parties’ appeals.

{¶ 3} Generally, orders overruling motions for summary judgment are not final because they do not resolve claims, and cannot be made appealable by the addition of Civ.R. 54(B) language. Onady v. Wright State Physicians, Inc., 2d Dist. Montgomery No. 27954, 2018-Ohio-3096 (July 20, 2018). It appeared that the scope of this appeal should be limited to those portions of the June 7 Decision that are final because they are resolved, and appealable because of the inclusion of Civ.R. 54(B) language. We ordered the parties to show cause why the scope should not be so limited according to our decision in Onady.

{¶ 4} Shortly after we issued our show cause order, Appellees/Cross-Appellants, Dayton Children’s Hospital (“DCH”) and the Dayton-Montgomery County Port Authority (“DMCPA”), moved to dismiss the appeal filed by Appellants/Cross-Appellees, Garrett Day, LLC, and Michael E. Heitz. DCH and DMCPA argued that Garrett Day and Heitz’s appeal must be dismissed, because they only assigned error with respect to the denial of summary judgment in their August 13, 2018 brief. Garrett Day and Heitz filed a combined response to our show cause order and the motion to dismiss. DCH and DMCPA filed a reply; they also filed a separate response to our show cause order. The matter is now properly before the court.

{¶ 5} DCH and DMCPA, to whom we will refer in this Decision as Appellees, agree that the scope of the appeal should be limited to those claims that have been resolved. Garrett Day and Heitz, designated herein as Appellants, disagree and make several arguments for allowing a broader appeal. We conclude that only the claims that have been resolved are subject to appeal at this time.

{¶ 6} We first observe that Appellants do not assert that the denial of summary judgment is final under any particular section of the statute defining final appealable orders. R.C. 2505.02. Rather, they argue that the order is final in some respect and therefore reviewable in its entirety, and alternatively, that the inclusion of Civ.R. 54(B) language in the order is sufficient to permit review, independent of R.C. 2505.02. We address these arguments in turn.

{¶ 7} Appellants argue that an order is either final or it is not, and that this court can review any issue in an order that is final. In other words, if any part of an interlocutory order is final, the entire order is subject to review on appeal; it is “an all-or-nothing event.” Appellants cite no Ohio cases for this proposition. The main authority they cite is a federal statute allowing interlocutory appeals in federal court, 28 U.S.C. 1292(b), and caselaw analyzing it. That statute provides, in relevant part:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. * * *

28 U.S.C. 1292(b). Under this statute, federal “district courts [are] circumscribed authority to certify for immediate appeal interlocutory orders deemed pivotal and debatable.” Swint v. Chambers Cty. Comm., 514 U.S. 35, 46, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). Federal appellate courts are then permitted to exercise jurisdiction over the entire order, not just the particular issue certified by the district court. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) (“As the text of § 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court”). Appellants reason that because federal courts may consider issues other than the ones certified by the district court as pivotal and debatable, so too may this court review any issue in an order that is final in some respect.

{¶ 8} We do not find this federal law binding, analogous, or persuasive. It does not govern whether this state court has jurisdiction over this appeal. See Walters v. Enrichment Ctr. of Wishing Well, Inc., 78 Ohio St.3d 118, 123, 676 N.E.2d 890 (1997) fn. 2 (distinguishing between R.C. 2505.02 and the “federal model, as set forth in Sections 1291-1292, Title 28, U.S.Code”). We also disagree with Appellants that the “same rule must apply here” as applies in federal court, as the federal and state courts are not always in lockstep. See Celebrezze v. Netzley, 51 Ohio St.3d 89, 91, 554 N.E.2d 1292 (1990) (referring to “the federal final order statute” that is “not applicable to the states”). More particularly, Ohio does not have an analogous “controlling question of law” provision that permits trial courts to certify “pivotal and debatable” legal issues to the courts of appeals. This category of appeal simply does not exist in Ohio, and the federal law cited provides no support for a broader appeal here.

{¶ 9} Appellants further argue that there is no authority for limiting the scope of an appeal from an order that is acknowledged to be final in some respect. They correctly note that the constitutional provision and jurisdictional statute providing this court with authority does not parse this court’s jurisdiction in terms of issues or assignments of error, but in terms of final orders or judgments. Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2501.02; R.C. 2505.02.¹ Caselaw, however, has established that only certain portions of an order

may be subject to appeal. For example, our decision in Onady is directly on point and binding in this district. Onady, 2d Dist. Montgomery No. 27954, 2018-Ohio-3096. In Onady, we held that a party could not appeal the denial of its motion for summary judgment, even where the trial court certified that there was no just reason for delay with respect to other claims the court had resolved. The Ninth District held similarly in Interstate Properties v. Prasanna, Inc., 9th Dist. Summit No. 22734, 2006-Ohio-2686, ¶ 14-16. In Prasanna, the court distinguished between “the portions of the order” that were immediately appealable and those that were not. Id. The “portion of the order [that] did not dispose of an entire claim” was held not to be final under any category of R.C. 2505.02, despite the addition of Civ.R. 54(B) language. The court explained:

To be final, an order also must fit into one of the categories set forth in R.C. 2505.02. See General Electric Supply Co. v. Warden Electric, Inc. (1988), 38 Ohio St.3d 378, 380, 528 N.E.2d 195. R.C. 2505.02(B)(1) provides that an order “that affects a substantial right in an action that in effect determines the action and prevents a judgment” is final and appealable. The portions of the trial court‘s order that granted summary judgment to several defendants on entire claims against them “determine[d] the action” as to those parties, and thus was a final order pursuant to R.C. 2505.02. Summary judgment precluded any recovery on those claims. Together with the appropriate “no just cause for

delay” Civ. R. 54(B) language that the trial court added on June 3, 2005, those aspects of the order were final and appealable, even though other portions of the order were not immediately appealable. See Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, 90, 554 N.E.2d 1292, certiorari denied (1990), 498 U.S. 967, 111 S.Ct. 428, 112 L.Ed.2d 412. Therefore, the May 9, 2005 order, with the later addition of the Civ.R. 54(B) language, is final and appealable, but only to the extent that it granted summary judgment on entire claims.

The portion of the order appealed by Interstate Properties did not dispose of an entire claim. Interstate Properties appeals from a pretrial determination by the trial court that any property damages that it may recover in this action will be measured by the diminution of its property value, not by the cost of restoration. There has yet to be a determination that any of the defendants is liable for the damage, nor has there been a determination that Interstate Properties did in fact incur damages. This aspect of the trial court’s order did not resolve the issues of liability or damages and fails to satisfy any of the provisions of R.C. 2505.02. Although the trial court’s decision on this damage issue may have affected a substantial right of Interstate Properties, it did not determine the action, nor did it prevent a judgment. See R.C. 2505.02(B)(1).

Therefore, as Interstate Properties attempts to appeal from a non-final aspect of the trial court’s May 9 order, over which this Court has no jurisdiction, appeal number 22757 is dismissed.

(Emphasis added.) Prasanna at ¶ 14-16.

{¶ 10} The Supreme Court of Ohio accepted a similar distinction between the final and non-final parts of an order in Celebrezze v. Netzley, 51 Ohio St.3d 89, 554 N.E.2d 1292 (1990). The Court noted that the grant of summary judgment to two parties “ ‘determine[d] the action’ as to these parties, and was thus a final order pursuant to R.C. 2505.02. Together with the appropriate Civ.R. 54(B) language, it was a final appealable order, even though the summary judgment motions filed by appellees * * * were denied.” Id. at 90. With respect to the denied summary judgment motions, the court held that they were not final under any category of R.C. 2505.02 and thus the appellate court was without jurisdiction to hear appellees’ appeals therefrom. These determinations were both contained in the same trial court order.²

{¶ 11} Ohio courts limit the scope of appeals in other contexts. For example, with respect to the denial of an alleged immunity under R.C. 2744.02(C), which is statutorily final and appealable, appellate review is limited to the immunity issue. See, e.g., Vlcek v. Chodkowski, 2015-Ohio-1943, 34 N.E.3d 446, ¶ 34 (2d Dist.), quoting Long v. Hanging Rock, 4th Dist. Lawrence No. 09CA30, 2011-Ohio-5137, ¶ 10 (citing cases in accord from the 4th, 8th, and 10th Districts); Davis v. Akron, 9th Dist. Summit No. 27014, 2014-Ohio-2511, ¶ 12-14. That is, “ ‘an appeal from an order denying immunity is limited to the review of alleged errors in the portion of the trial court’s decision which denied the political subdivision the benefit of immunity.’ ” Vlcek at ¶ 35, quoting Guenther v. Springfield Twp.

Trustees, 2012-Ohio-203, 970 N.E.2d 1058, ¶ 24 (2d Dist.). Likewise, the portion of an order staying a dispute for arbitration is appealable under R.C. 2711.02(C), while the remaining portion of the order may not be. See, e.g., Meyers v. Marks, 3d Dist. Henry No. 7-10-13, 2011-Ohio-3523, ¶¶ 21-26 (noting “that the trial court’s judgment contains two separate and distinct orders. The first order denies Meyers’ motion for leave to dismiss the amended complaint,” which was not appealable, while “[t]he second order refers two specific issues to arbitration,” which was). Appeals from writs of restitution, which are final, have also been limited to those portions of the order that are final and appealable. See, e.g., Mountaineer Invests., L.L.C. v. Performance Home Buyers, L.L.C., 2d Dist. Montgomery No. 24173, 2011-Ohio-3614, ¶ 5-6 (distinguishing between the portion of the order that was appealable because it concerned a writ of restitution, and the portion that was not final because of unresolved counterclaims). Thus, Ohio caselaw supports limiting the scope of appeals to those portions of an order that are final and appealable.

{¶ 12} Appellants next criticize this court’s previous decision in Onady as relying on outdated law. Appellants specifically criticize that decision for holding that an order’s finality is evaluated by both R.C. 2505.02 and, if applicable, Civ.R. 54(B). See Onady at ¶ 7, citing Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989). They argue that “[i]t is not correct that an order must satisfy both R.C. 2505.02 and Rule 54(B) to be appealable. Satisfying either one is sufficient.” (Emphasis in original).

{¶ 13} Appellants craft this argument from two recent opinions from the Supreme Court of Ohio: Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, and Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536. These cases discussed whether certain interlocutory discovery orders were final as provisional

remedies under R.C. 2505.02(B)(4). Neither case states the rule that Appellants suggest here. In fact, neither case mentions Civ.R. 54(B). Appellants argue that this lack of discussion of Civ.R. 54(B) “suggest[s] that satisfaction of either R.C. 2505.02 or Rule 54(B) was sufficient to confer appellate jurisdiction.” (Emphasis in original.)

{¶ 14} We disagree with the proposition Appellants glean from the court’s silence in Chen and Burnham for two reasons. First, the Supreme Court has repeatedly affirmed the fundamental legal principle described in Chef Italiano – that finality is judged by both R.C. 2505.02 and, if applicable, Civ.R. 54(B) – in the years since that case was decided. See, e.g., CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 10, quoting State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5 (“ ‘An order of a court is a final appealable order only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met’ ”); Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593, ¶ 21 (“An order is a final, appealable order only if it meets the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B)”). Each appellate district follows the same rule, and has recently said so. See, e.g., Onady at ¶ 7.³ The proposition of law in Chef Italiano is not outdated; it is well-settled. See 4 Ohio Jurisprudence

3d, Appellate Review, Section 54 (2018) (“An order is a final appealable order only if the requirements of both the statute defining final orders, and the rule permitting entry of a judgment on fewer than all claims, Civ.R. 54(B), if applicable, are met”).

{¶ 15} Second, while Appellants are correct that Chen and Burnham did not mention Civ.R. 54(B), that is because Civ.R. 54(B) is not “applicable” to the analysis of the provisional remedies discussed in those cases. “[A]n order granting or denying a provisional remedy is not subject to the requirements of Civ.R. 54(B).” State ex rel. Butler Cty. Children Servs. Bd. v. Sage, 95 Ohio St.3d 23, 25, 764 N.E.2d 1027 (2002). As the Supreme Court explained in a different context:

Civ.R. 54(B) * * * does not apply, because this case does not involve the entry of judgment “as to one or more but fewer than all of the claims or parties.” Civ.R. 54(B). It is only in cases in which fewer than all the claims or fewer than all the parties are disposed of in the entry that the phrase “no just reason for delay” has meaning.

Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 113 Ohio St.3d 474, 2007-Ohio-2457, 866 N.E.2d 1059, ¶ 9.

{¶ 16} The discovery orders appealed in Chen and Burnham did not “enter final judgment as to one or more but fewer than all of the claims or parties.” Civ.R. 54(B). They ordered materials to be produced during pretrial discovery. Chen and Burnham are therefore consistent with the rule that an order “is a final appealable order only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met.” (Emphasis added.) Roznowski at ¶ 10. Because Civ.R. 54(B) was not applicable, the rule did not merit

discussion in those cases. We are therefore not convinced that this fundamental proposition of law was overruled sub silentio in Chen and Burnham.⁴

{¶ 17} In a similar vein, Appellants next assert that “judgments” and “final orders” are different things, and are “two separate bases for this Court to exercise its appellate jurisdiction.” They posit that “[t]he summary judgment decision therefore is an immediately appealable ‘judgment’ under Rule 54(B), irrespective of whether it would be an immediately appealable ‘final order’ under R.C. 2505.02.”

{¶ 18} We again disagree with this proposition and the conclusion drawn from it. “Judgment or order” is a common, but redundant, phrase in final appealability jurisprudence. As the 2014 Staff Notes to the Rules of Appellate Procedure say, when discussing the decision to use only one term in the Rules: “this change is not substantive but merely recognizes that there is no need to use both terms, since every judgment is also a final order. See, e.g., Civ.R. 54(A); R.C. 2505.02(B)(1).” (Emphasis added.)

{¶ 19} More specifically, the weight of authority in Ohio holds that Civ.R. 54(B) language, alone, is insufficient to invoke appellate jurisdiction. See Chef Italiano; Onady; and footnote 3, above. Civ.R. 54(B) language is not a “mystical incantation which transforms a nonfinal order into a final appealable order.” Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352, 354, 617 N.E.2d 1136 (1993). The order “must always fit into at least one of the * * * categories of final order set forth in R.C. 2505.02.” Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381, 1385 (1989), citing General Elec. Supply Co. v. Warden Elec., Inc., 38 Ohio St.3d 378, 528 N.E.2d 195 (1988), syllabus. In other words, “an order that is not

final cannot be rendered final merely by the addition of Civ.R. 54(B) language.” K.L. v. Franklin Cty. Children Servs., 2018-Ohio-3139, 106 N.E.3d 1286, ¶ 8 (10th Dist.), citing Noble at 96. Civ.R. 54(B) language, alone, is not enough.

{¶ 20} We are not persuaded by Appellants’ arguments. We therefore conclude that the denial of their summary judgment motion is not final and appealable at this time. We LIMIT the scope of this appeal and cross-appeal to the portions of the July 7, 2018 Decision that are final and appealable with Civ.R. 54(B) language: the dismissal of Plaintiffs’ fraud and negligent misrepresentation claims and the dismissal of Defendants’ fraud claim. Appellants/Cross-Appellees, Garrett Day, LLC, and Michael E. Heitz may file a new brief within 20 days of the journalization of this order. Their brief filed August 13, 2018, which only assigns error with respect to the trial court’s denial of summary judgment, is STRICKEN. The briefing schedule will resume thereafter. See Loc.App.R. 2.21 (discussing the order of briefs in cross-appeals).

SO ORDERED.

MARY E. DONOVAN, Judge

JEFFREY E. FROELICH, Judge

MICHAEL T. HALL, Judge

Copies to:

Paul Saba
Jeffrey Nye
2623 Erie Avenue
Cincinnati, Ohio 45208
Attorneys for Garrett Day, LLC and Michael Heitz

Jeffrey McSherry
201 E. Fifth Street, Suite 1110
Cincinnati, Ohio 45202
Attorney for Dayton Children’s Hospital, Dayton-Montgomery County Port Authority, and Deborah Feldman

Nathaniel Peterson
301 W. Third Street, 5th Floor
Dayton, Ohio 45422
Attorney for Montgomery County Treasurer

Hon. Dennis J. Langer
Montgomery County Common Pleas Court
41 N. Perry Street
P.O. Box 972
Dayton, Ohio 45422

CA3/KY

Notes

Ohio Constitution, Article IV, Section 3(B)(2) provides:

Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district, except that courts of appeals shall not have jurisdiction to review on direct appeal a judgment that imposes a sentence of death. Courts of appeals shall have such appellate jurisdiction as may be provided by law to review and affirm, modify, or reverse final orders or actions of administrative officers or agencies.

R.C. 2501.02 provides in part:

[T]he court [of appeals] shall have jurisdiction upon an appeal upon questions of law to review, affirm, modify, set aside, or reverse judgments or final orders of courts of record inferior to the court of appeals within the district, including the finding, order, or judgment of a juvenile court that a child is delinquent, neglected, abused, or dependent, for prejudicial error committed by such lower court.

R.C. 2505.02(B) provides:

An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:

(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;

(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;

(3) An order that vacates or sets aside a judgment or grants a new trial;

(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.

(5) An order that determines that an action may or may not be maintained as a class action;

(6) An order determining the constitutionality of any changes to the Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly * * *;

(7) An order in an appropriation proceeding that may be appealed pursuant to division (B)(3) of section 163.09 of the Revised Code.

The reversed appellate court judgment noted: “On April 28, 1987, in a lengthy and well-written opinion, the court granted summary judgment in favor of Plain Dealer and Sharkey and denied summary judgment for Netzley and the Committee. Pursuant to Civ.R. 54(B), the court indicated its intent to make its decisions final and determined there was no just reason for delay.” .