Lead Opinion
{¶ 1} The city of Xenia, defendant-appellant, appeals from a decision of the Greene County Court of Appeals, dismissing Xenia’s appeal on the basis that the trial court’s decision denying summary judgment on the city’s claim of immunity from liability was not a final, appealable order under R.C. 2744.02(C), as it was not an actual denial of immunity.
{¶ 2} We reverse the judgment of the court of aрpeals and hold that when a political subdivision or its employee seeks immunity, an order that denies the benefit of an alleged immunity is a final, appealable order pursuant to R.C. 2744.02(C).
Facts and Procedural History
{¶ 3} Dottie Hubbell, plaintiff-appellee, filed a negligence action against Xenia after an incident in which sewage backed up in her home. Xenia moved for summary judgment on all claims on the grounds that there was no evidence of
{¶ 4} The trial court issued a decision denying Xenia summary judgment on the basis that there was a question of fact as to whether Xenia was entitled to immunity under R.C. Chapter 2744. The trial court further held that R.C. 2744.03(A)(5) immunity does not shield a political subdivision from the negligence of an employеe and ordered the case to mediation.
{¶ 5} Xenia appealed, and the Court of Appeals for Greene County dismissed the appeal, concluding that the trial court’s decision denying summary judgment on Xenia’s claim of immunity from liability was not a final, appealable order under R.C. 2744.02(C). Hubbell v. Xenia,
{¶ 6} The court of appeals recognized its decision as being in conflict with a dеcision from the Fourth District Court of Appeals in Lutz v. Hocking Technical College (May 18, 1999), Athens App. No. 98CA12,
{¶ 7} We accepted the certified question, as well as a discretionary appeal. After this court determined that a conflict existed between Hubbell and Lutz, the Fourth District Court of Appeals overruled the Lutz decision in Estate of Graves v. Circleville, Ross App. No. 06CA2900,
{¶ 8} This resolved the certified сonflict. However, the same issue is still before this court pursuant to a discretionary appeal.
Analysis
{¶ 9} “It is well-established that an order must be final before it can be reviewed by an appellate court. If an order is not final, then an appellate court has no jurisdiction.” Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989),
{¶ 10} R.C. 2744.02(C) provides: “An order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.”
{¶ 11} We must first look to the plain language of the statute itself to determine the legislative intent. State ex rel. Burrows v. Indus. Comm. (1997),
{¶ 12} We conclude that the use of the words “benefit” and “alleged” illustrates that the scope of this provisiоn is not limited to orders delineating a “final” denial of immunity. R.C. 2744.02(C) defines as final a denial of the “benefit” of an “alleged” immunity, not merely a denial of immunity. Therefore, the plain language of R.C. 2744.02(C) does not require a final denial of immunity before the political subdivision has the right to an interlocutory appeal.
{¶ 13} It appears that the application of R.C. 2744.02(C) by the courts of apрeals falls into three categories. Some courts, like the Second District in this case, find a lack of jurisdiction in any appeal from an order finding a genuine issue of fact regarding whether immunity exists under R.C. Chapter 2744. Other appellate courts review such orders on the merits, holding that they are final under R.C. 2744.02(C). See Tomlin v. Pleban, 8th Dist. No. 87699,
{¶ 14} There even appears to be confusion within certain districts as to the application of R.C. 2744.02(C). For example, the Fourth District’s decision in Estate of Graves,
{¶ 15} The court of appeals in this case noted that its past approach under R.C. 2744.02(C) was to consider denials of summary judgment as final, appealable orders when the trial court had concluded that there were genuine issues of material fact on immunity.
{¶ 16} In Brown, the court failed to completely analyzе the statute when it stated: “The issue this court must determine is whether the trial court’s order denying the board’s motion for summary judgment was an order denying the board ‘an alleged immunity from liability as provided in Chapter 2744.’ ” Id. at 356,
{¶ 17} In addition to Brovm, the court of appeals in this case relied on State Auto. Mut. Ins. Co. v. Titanium Metals Corp.,
{¶ 18} The procedural posture of Titanium distinguishes it from the case at bar. In Titanium, the third-party defendant appealed from a trial court decisiоn denying a motion to dismiss based on immunity without opinion. Since there was no record or opinion, we could not determine the basis of the appeal.
{¶ 19} The parties in Titanium did not appeal the issue whether R.C. 2744.02(C) was applicable; therefore, we expressly declined to address the merits
{¶ 20} Here, the record contains evidence upon which the trial court denied the motion for summary judgment, so as to deny Xenia “the benefit of an alleged immunity from liability.” A court of appeals may not avoid deciding difficult questions of immunity by pointing to the trial court’s use of the language “genuine issue of material fact.” Upon de novo review, a court of appeals may find that the issues of fact cited by the trial court do not justify the denial of immunity. See, e.g., Bays, 9th Dist. No. 98CA0027,
{¶ 21} A court of appeals must exercise jurisdiction over an appeal of a trial court’s decision overruling a Civ.R. 56(C) motion for summary judgment in which a political subdivision or its employee seeks immunity. Absent some other procedural obstacle, a court of appeals must conduct a de novo review of the law and facts. If, after that review, only questions of law remain, the court of appeals may resolve the appeal. If a genuine issue of material fact remains, the court of appeals can remand the case to the trial court for further development of the facts necessary to resolve the immunity issue.
Policy Considerations
{¶ 22} The court of appeals below identified two policy reasons in support of its refusal to apply R.C. 2744.02(C) to orders denying summary judgment on the issue of immunity: judicial economy and ease of application.
{¶ 23} In Wilson v. Stark Cty. Dept. of Human Servs. (1994),
{¶ 25} “[D]etermination of whether a political subdivision is immune from liability is usually pivotal to the ultimate outcome of a lawsuit. Early resolution of the issue of whether a political subdivision is immune from liability pursuant to R.C. Chapter 2744 is benеficial to both of the parties. If the appellate court holds that the political subdivision is immune, the litigation can come to an early end, with the same outcome that otherwise would have been reached only after trial, resulting in a savings to all parties of costs and attorney fees. Alternatively, if the appellate court holds that immunity does not apply, that early finding will encourage the political subdivision to settle promptly with the victim rather than pursue a lengthy trial and appeals. Under either scenario, both the plaintiff and the political subdivision may save the time, effort, and expense of a trial and appeal, which could take years.
{¶ 26} “ * * * As the General Assembly envisioned, the determination of immunity could be mаde prior to investing the time, effort, and expense of the courts, attorneys, parties, and witnesses pursuant to amendments made to R.C. 2744.02(C) and 2501.02.” (Emphasis sic.) Burger v. Cleveland Hts. (1999),87 Ohio St.3d 188 , 199-200,718 N.E.2d 912 (Lundberg Stratton, J., dissenting).
Conclusion
{¶ 27} Accordingly, we hold that when a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and thus is a final, appealable ordеr pursuant to R.C. 2744.02(C). We, therefore, reverse the judgment of the court of appeals and remand this matter to the court of appeals for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
Notes
. This court has since accepted jurisdiction in Estate of Graves and has held it for decision in the instant case.
. Brown was decided before Am.Sub.S.B. No. 350, which enacted R.C. 2744.02(C), was declared unconstitutional in State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999),
Dissenting Opinion
dissenting.
{¶ 28} The majority today reverses a well-reasoned and influential opinion from the Second District Court of Appeals. Other appellate districts have embraced the Second District’s reasoning in this case, rejecting their own former interpretation of R.C. 2744.02(C) as allowing an interlocutory appeal when a trial court has denied a political subdivision’s motion for summary judgment based
{¶ 29} As the majority points out, after we accepted this case pursuant to a certified conflict between the Second and Fourth Appellate Districts, the Fourth Appellate District in Estate of Graves v. Circleville, Ross App. No. 06CA2900,
{¶ 30} Certainly, this court should carefully consider the practical underpinnings of the appellate court’s opinion in this case. First-level appellate courts face the reality of appeals from summary judgment on a daily basis, and that experience seems to have guided the appellate court. The court wrote:
{¶ 31} “[The] conservative construction of R.C. 2744.02(C) best serves the purpose of judicial economy. Generally, when a trial court concludes that there is a genuine issue of material fact concerning an issue — thus requiring more work for the trial court in the form of a trial on that issue — it is unusual for a reviewing appellate court to find, to the contrary, that there is no genuine issue of material fact. So, in the usual situation when an appellate court would agree that a factual question exists concerning governmental immunity, an immediate appeal would merely add an unnecessary appeal — with its attendant delay — tо the litigation.” Hubbell v. Xenia,167 Ohio App.3d 294 ,2006-Ohio-3369 ,854 N.E.2d 1133 , ¶ 14.
{¶ 32} Secondly, as the appellate court pointed out, a narrower interpretation of R.C. 2744.02(C) “would provide a simple, easily applied test for determining whether an order that did not grant a request for immunity was immediately appealable.” Hubbell,
{¶ 33} A final practical aspect discussed by the court below is that under a broad interpretation of R.C. 2744.02(C), “any order that failed to grant immunity when requested would raise the question of whether the case was in an appropriate procedural posture for appellate review.” Id. Denials of Civ.R. 12(B)(6) motions and motions for a directed verdict, as well as denials of multiple motions
{¶ 34} The majority demeans the work of appellate courts when it states that “[a] court of appeals may not avoid deciding difficult questions of immunity by pointing to the trial court’s use of the language ‘genuine issue of material fact.’ ” Appellate courts are not attemрting to avoid “difficult” issues; they are trying to avoid wasting their own time and that of the parties. The issue of immunity will eventually be settled in appellate courts when the issue and the record are sufficiently ripe.
{¶ 35} Besides the practicalities pointed out by the appellate court in this case, that court’s holding is consistent with R.C. 2744.02(C), which reads:
{¶ 36} “An order that denies a political subdivision оr an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.”
{¶ 37} The key word in R.C. 2744.02(C) is “denies.” Certainly, Xenia cannot claim that its assertion of immunity has been denied, that it has been foreclosed from further asserting and proving its alleged immunity at the trial level. The majority ascribes special meaning to the words “benefit” and “alleged” in its opinion, though it does not set forth why those words are especially important. The majority acts as though there is a “benefits package” that comes with immunity, and that part of that package is an automatic appeal every time the court does not respond summarily in a political subdivision’s favor. Thе “benefit” of immunity from liability is simply immunity from liability, not immunity from being sued. Political subdivisions are not immune from having to defend themselves in court.
{¶ 38} Here, the trial court denied a motion for summary judgment — it did not deny Xenia the ability to successfully mount a defense. Xenia could still enjoy the benefit of immunity. R.C. 2744.02(C) does not grant an immediate appeal when the political subdivision has not developed the recоrd enough for a decision on its immunity to be made one way or another. As the court said below, a denial of a summary judgment motion due to the existence of a genuine issue of material fact is not a judgment on the movant’s claim, but rather is a commentary on the state of the record. Hubbell,
{¶ 39} The appellate court’s decision in this case relied in part on this court’s hоlding in State Auto. Mut. Ins. Co. v. Titanium Metals Corp.,
{¶ 40} Here, the trial court did not dispose of the case or of the immunity issues raised by Xenia. As the court wrote below, “Until the trial court has denied the claim of immunity — as opposed to failing to grant the request for immunity at that time — the trial court has merely determined that there are questions of fact that need resolution before the immunity question can be fully addressed.” Hubbell,
{¶ 41} This court need not judicially expand R.C. 2744.02(C) to further mollycoddle political subdivisions. Political subdivisions are not the only participants in lawsuits — the resourсes of plaintiffs and courts are also stretched in having to address excessive appeals. Plaintiffs, most often ordinary citizens harmed by the actions of a political subdivision, already face a stacked deck and an opponent with comparatively vast resources. Now, the majority draws no line on the number of immediate appeals a pоlitical subdivision can take. It’s good to be king.
Dissenting Opinion
dissenting.
{¶ 42} I join the dissenting opinion of Justice Pfeifer to the extent that he would affirm the judgment of the court of appeals based on its interpretation of R.C. 2744.02(C) and our holding in State Auto. Mut. Ins. Co. v. Titanium Metals Corp.,