State ex rel. David L. Deem, et al., Relators-Plaintiffs/Appellees/Cross-Appellants,
Village of Pomeroy, et al., Respondents-Defendants/Appellants/Cross-Appellees.
Lawrence E. Barbiere and Katherine L. Barbiere, Mason, Ohio
Michael M. Hollingsworth, Athens, Ohio for
DECISION AND JUDGMENT ENTRY
William H. Harsha Administrative Judge
Appellants/Cross-Appellees Village of Pomeroy, its former
mayor and members of the Pomeroy Village Council
(collectively "Pomeroy") appeal an order entered by
the Meigs County Court of Common Pleas granting in part and
denying in part Pomeroy's motion for summary judgment.
Appellees David and Jamie Deem filed a cross-appeal to that
portion of the order that granted Pomeroy's summary
judgment against the Deems on their mandamus claim. Pomeroy
filed a motion to dismiss the Deems's cross appeal
because the order appealed is not a final, appealable order-
the trial court granted judgment on fewer than all of the
claims in the case. Pomeroy's appeal is limited to that
portion of the trial court's order that denied them
immunity under R.C. 2744.02(C). Because the order appealed
from is a final, appealable order under R.C. 2744.02(C),
appellate review is limited to the denial of immunity. We are
not authorized to review other alleged errors in the order.
Thus we lack jurisdiction over the cross-appeal, GRANT
Pomeroy's motion, and DISMISS the cross-appeal. We strike
cross-appellant's brief from the record.
The Deems filed an action, which included federal claims
under 42 U.S.C. Section 1983, against the Pomeroy defendants
in state court. The action was removed to federal court and
then remanded. After remand the trial court stayed the
Section 1983 claims and the Pomeroy defendants moved for
summary judgment on the remaining state law claims. The trial
court granted Pomeroy's motion on certain of the pending
claims, but denied it on some of the other claims. The order
does not contain Civ.R. 54(B) language stating that
"there is no just cause for delay."
The Pomeroy defendants appealed that portion of the order
that denied them the benefit of immunity under R.C.
2744.02(C), which states, "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."
The Deems filed a cross-appeal challenging the trial
court's grant of summary judgment in Pomeroy's favor
on their mandamus claim.
Appellate courts "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[.]" Ohio
Constitution, Article IV, Section 3(B)(2); see R.C.
2505.03(A). If a court's order is not final and
appealable, we have no jurisdiction to review the matter and
must dismiss the appeal. Eddie v. Saunders, 4th
Dist. Gallia No. 07CA7, 2008-Ohio-4755, ¶ 11.
Unless another statute specifically creates a right of
appeal, an order must meet the requirements of R.C. 2505.02
to constitute a final, appealable order. Chef Italiano
Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541
N.E.2d 64 (1989). Under R.C. 2505.02(B)(1), an order is a
final order if it "affects a substantial right in an
action that in effect determines the action and prevents a
judgment[.]" To determine the action and prevent a
judgment for the party appealing, the order "must
dispose of the whole merits of the cause or some separate and
distinct ranch thereof and leave nothing for the
determination of the court." Hamilton Cty. Bd. of
Mental Retardation & Dev. Disabilities v. Professionals
Guild of Ohio, 46 Ohio St.3d 147, 153, 545 N.E.2d 1260
If the case involves multiple parties or multiple claims, the
court's order must meet the requirements of Civ.R. 54(B)
to qualify as a final, appealable order. See Chef
Italiano Corp. at 88. Under Civ.R. 54(B), "[w]hen
more than one claim for relief is presented in an action
whether as a claim, counterclaim, cross-claim, or third-party
claim, and whether arising out of the same or separate
transactions, or when multiple parties are involved, the
court may enter final judgment as to one or more but fewer
than all of the claims or parties only upon an express
determination that there is no just reason for delay."
Absent the mandatory language that "there is no just
reason for delay, " an order that does not dispose of
all claims is subject to modification and is not final and
appealable. Noble v. Colwell, 44 Ohio St.3d 92, 96,
540 N.E.2d 1381 (1989); Civ.R. 54(B). The purpose of Civ.R.
54(B) is " 'to make a reasonable accommodation of
the policy against piecemeal appeals with the possible
injustice sometimes created by the delay of appeals[, ]'
* * * as well as to insure that parties to such actions may
know when an order or decree has become final for purposes of
appeal * * *." Pokorny v. Tilby Dev. Co., 52
Ohio St.2d 183, 186, 370 N.E.2d 738 (1977); quoting
Alexander v. Buckeye Pipeline, 49 Ohio St.2d 158,
160, 359 N.E.2d 702 (1977).
Here the trial court did not enter judgment on all of the
pending claims and did not include the requisite Civ.R. 54(B)
language. Instead, it granted summary judgment on some of the
claims, but denied Pomeroy's immunity argument and
permitted the Deems's two claims for negligence to
remain. Therefore, the Pomeroy defendants are able to appeal
the trial court's entry permitting the claims against
them to proceed to trial because that portion of the trial
court's order denies them the benefit of sovereign
immunity and is immediately appealable under R.C. 2744.02(C)
without the necessity of Civ.R. 54(B) language. See
Sullivan v. Anderson Twp., 122 Ohio St.3d 83,
2009-Ohio-1971, 909 N.E.2d 88, syllabus.
However, appellate review under R.C. 2744.02(C) is limited to
the denial of immunity and does not authorize the appellate
court to review the merits of the action. Leasure v.
Adena Local School Dist,2012-Ohio-3071, 973 N.E.2d 810,
¶43 (4th Dist.); Zoldan v. Village of
Lordstown, 11th Dist. Trumbull No. 2014-T-0002,
2014-Ohio-3007, ¶10; Jones v. Delaware City School
Dist. Bd. of Edn.,2013-Ohio-3907, 995 N.E.2d 1252,
¶ 15-16 (5th Dist.). Therefore, the Deems's
cross-appeal, which is attempting to appeal the granting of
the Pomeroy defendant's motion for summary judgment on
the mandamus claim, is not subject to review. Other than for
the narrow review of the denial of the benefit of ...