Ohio Court of Appeals, 2003

Konstand v. Barberton, Unpublished Decision (12-31-2003)

Ohio Court of Appeals · Decided December 31, 2003 · SLABY, PRESIDING JUDGE.

2003 Ohio 7187

Cases that cite this one

18 later published cases cite this decision.

Gooden v. Anderson, 24419 (4-29-2009) (Ohio Ct. App. 2009)
Stano v. Stano, 08ca0029-M (10-27-2008) (Ohio Ct. App. 2008)
Shady Hollow Condominium Owners' Assn. v. Wellemeyer, 24060 (6-18-2008) (Ohio Ct. App. 2008)
Comstock Homes v. Smith Family Trust, 24312 (12-10-2008) (Ohio Ct. App. 2008)
Shady Hollow Condominium Owners' Assn. v. Wellemeyer, 24310 (11-12-2008) (Ohio Ct. App. 2008)
Budich v. Reece, 24108 (7-23-2008) (Ohio Ct. App. 2008)
Bankers Trust Co. v. Tutin, 23911 (2-13-2008) (Ohio Ct. App. 2008)
Bauer v. City of Brunswick, 08ca0034-M (12-8-2008) (Ohio Ct. App. 2008)
Glenmoore Builders, Inc. v. Smith Family Trust, 23879 (3-26-2008) (Ohio Ct. App. 2008)
Coventry Twp. Bd. of Trustees v. Cheton, Unpublished Decision (12-28-2007) (Ohio Ct. App. 2007)
Long v. N. Illinois Classic Auto Brokers, Unpublished Decision (5-10-2006) (Ohio Ct. App. 2006)
Bankers Trust Co. of Calif., N.A. v. Tutin, Unpublished Decision (3-15-2006) (Ohio Ct. App. 2006)
Blankenship v. Portsmouth Police Dept., Unpublished Decision (3-27-2006) (Ohio Ct. App. 2006)
Brunst v. Alltel Corp., Unpublished Decision (6-30-2005) (Ohio Ct. App. 2005)
Rice v. Flynn, Unpublished Decision (9-7-2005) (Ohio Ct. App. 2005)
Bies v. Huntington Natl. Bank, Unpublished Decision (12-30-2005) (Ohio Ct. App. 2005)
Countrywide Home Loans, Inc. v. Hannaford, Unpublished Decision (8-18-2004) (Ohio Ct. App. 2004)
Mollohan v. Court Development Inc., Unpublished Decision (4-28-2004) (Ohio Ct. App. 2004)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

DECISION AND JOURNAL ENTRY{¶ 1} Appellants, the City of Barberton and Donald Kishton, appeal from the decision of the Summit County Court of Common Pleas which denied their motion for summary judgment. For reasons stated below, we dismiss the appeal for lack of a final, appealable order.

{¶ 2} On February 20, 2001, Helen Reeves ("Reeves"), filed suit against Appellants. Shortly thereafter, Reeves passed away and the trial court substituted Appellee, Dean Konstand, the administrator of the Reeves estate, as plaintiff. Additionally, Appellee was permitted to amend the complaint so that a wrongful death action could be asserted. Discovery commenced. Appellants then filed a motion for summary judgment asserting immunity pursuant to R.C. 2744.02. Appellee responded in opposition and also filed a motion for summary judgment.

{¶ 3} The court denied Appellants' motion for summary judgment indicating that there were genuine issues of material fact relating to "whether [Appellant] the City of Barberton exercised its judgment in a wanton or reckless manner in the hiring, utilizing, training and scheduling of dispatchers" and whether "[Appellant] Kishton acted in a willful or wanton manner[.]" It is from this decision that Appellants have appealed.

{¶ 4} The Ohio Constitution limits an appellate court's jurisdiction to the review of final judgments of lower courts. Section 3(B)(2), Article IV. For a judgment to be final and appealable, the requirements of R.C. 2505.02 and Civ.R. 54(B), if applicable, must be satisfied. Chef Italiano Corp. v. Kent State Univ. (1989),44 Ohio St.3d 86, 88. Generally, the denial of a motion for summary judgment is not a final, appealable order. Benson v. Akron (Jan. 20, 1999), 9th Dist. No. 19076, at 2; State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23, 23.

{¶ 5} In the present matter, Appellants have attempted to appeal the denial of summary judgment pursuant to R.C. 2744.02(C) which 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." (Emphasis added.)

{¶ 6} However, this Court has previously held that "a decision dealing solely `with the fact-related legal issues that underlie [a] plaintiff's claim on the merits' is not a final appealable order within the meaning of * * * R.C. 2744.02(C)." Benson, supra, at 2-3, quotingBrown v. Akron Bd. of Ed. (1998), 129 Ohio App.3d 352, 358. Whether the Appellants acted in a wanton or reckless manner is a fact-related legal issue. Furthermore, the decision denying summary judgment was not an order denying Appellants immunity. Rather, the decision indicates that material issues of fact remain with respect to whether immunity exists. See Burley v. Bibbo (1999), 135 Ohio App.3d 527, 528-29. The court merely denied Appellants summary judgment on the immunity issue. See id. at 529. Thus, the appeal is dismissed for lack of final, appealable order. See Benson, supra, at 3.

Appeal dismissed.

Batchelder, J. concurs.

Dissenting Opinion

DISSENTS SAYING:

{¶ 7} I respectfully dissent. As I stated in my dissenting opinion in Schroeder v. Jones (Dec. 20, 2000), 9th Dist. No. 19958, 4-5,

"The plain and unambiguous language of R.C. 2744.02(C) allows immediate appellate review of a trial court's finding of a genuine issue of fact impacting the applicability of immunity. Therefore, the order appealed from is final and subject to review at this time.

"Additionally, the conservation of fiscal resources of political subdivisions is one of the principal statutory purposes behind the immunities and liability limitations provided in R.C. 2744. See Menefeev. Queen City Metro (1990), 49 Ohio St.3d 27, 29. R.C. 2744.02(C) furthers this legislative purpose by allowing political subdivisions and their employees to immediately appeal the denial of an immunity. Kagy v.Toledo-Lucas Cty. Port Auth. (1997), 121 Ohio App.3d 239, 244. Immediate appeal may help prevent political subdivisions and their employees from devoting substantial time and resources to defend an action, only to have an appellate court determine after trial that they were immune from suit all along. Id. To proceed in the manner proposed by the majority would eliminate the very purpose behind R.C. 2744."

{¶ 8} For the foregoing reasons, I respectfully dissent.

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