A Trial Court Order Denying Political Subdivision Immunity from Liability is Final, Appealable Order
2008-0691 and 2008-0817. Sullivan v. Anderson Twp., Slip Opinion No. 2009-Ohio-1971.
Hamilton App. No. C-070253, 2008-Ohio-1438. Certified question answered in the affirmative, judgment of the court of appeals reversed, and cause remanded.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1971.pdf 
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
(May 5, 2009) The Supreme Court of Ohio ruled today that Ohio’s political subdivision immunity statute permits a political subdivision to immediately appeal a trial court order that denies the subdivision the benefit of an alleged immunity from liability under R.C. Chapter 2477, even when the order lacks language required by Civil Rule 54(B) certifying that there is “no just reason for delay” in filing an appeal.
The Court’s 5-2 majority decision, authored by Chief Justice Thomas J. Moyer, reversed a ruling by the 1st District Court of Appeals.
In civil cases involving multiple parties and multiple claims, when a trial court issues an order that finally resolves some but not all of the claims, or that resolves all of the claims involving some but not all of the parties, Ohio Civil Rule 54(B) authorizes the trial court in its discretion to certify that there is “no just reason for delay” in allowing a party or parties negatively impacted by the partial ruling to file an immediate appeal. In the absence of a Civ.R.54(B) certification, a trial court’s partial ruling is normally not “final and appealable,” meaning it is not yet ripe for review by a court of appeals.
In this case, property owner George Sullivan filed suit against Anderson Township and Trend Construction, a contractor the township had hired to work on a road widening project. Sullivan claimed that his property had been damaged by work performed by Trend on behalf of the township. He advanced claims against both Trend and the township under several different theories of liability. After the parties filed written pleadings, the township entered a motion seeking judgment on the pleadings dismissing all of Sullivan’s claims against it on the basis that the township was immune from liability under R. C. Chapter 2477, Ohio’s political subdivision immunity statute.
The trial court entered an order partially granting and partially denying the township’s motion. Specifically, the court held that the township was immune from Sullivan’s claims based on trespass and from his complaint seeking punitive damages, but that Sullivan had alleged facts sufficient to pursue possible recovery from the township for breach of contract and negligent supervision of Trend. In its order, the trial court did not address any of Sullivan’s separate claims against Trend, and did not include Civ.R.54(B) language indicating that there was “no just reason for delay” in appealing its rulings on the township’s claims of immunity.
The township attempted to appeal the portions of the order denying its immunity claims. The 1st District Court of Appeals held that it did not have jurisdiction to hear an appeal of a partial judgment in a multi-issue, multi-party case until and unless the trial court made a Civ.R.54(B) entry authorizing immediate review of that judgment. The court of appeals certified that its ruling on the appealability of the trial court’s order was in conflict with a 1999 decision of the 4th District, Drew v. Laferty. The Supreme Court agreed to hear arguments in the case to resolve the conflict between appellate districts.
Writing for the majority in today’s decision, Chief Justice Moyer said the case asks the Court to resolve the “tension” between specific statutory language adopted by the General Assembly and a general provision of the Rules of Civil Procedure.
He wrote: “Ordinarily, Civ.R. 54(B) requires that a trial court order that disposes of fewer than all claims against all parties in a multi party and/or multi claim lawsuit include a determination that ‘there is no just reason for delay’ for the order to be deemed a final, appealable order. 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.’”
“In the ordinary case, Civ.R. 54(B) certification demonstrates that the trial court has determined that an order, albeit interlocutory, should be immediately appealable, in order to further the efficient administration of justice and to avoid piecemeal litigation or injustice attributable to delayed appeals. ... Here, however, no such determination by the trial court is necessary; the General Assembly has expressly made that determination with the enactment of R.C. 2744.02(C), which makes final an order denying a political subdivision the benefit of an alleged immunity from liability. ... Therefore, there is no reason for a trial court to certify under Civ.R. 54(B) that ‘there is no just cause for delay.’ When the denial of political-subdivision immunity is concerned, the trial court has no discretion to determine whether to separate claims or parties and permit an interlocutory appeal. For the foregoing reasons, we hold that R.C. 2744.02(C) permits a political subdivision to appeal a trial court order that denies it the benefit of an alleged immunity from liability under R.C. Chapter 2744, even when the order makes no determination pursuant to Civ.R. 54(B).”
Chief Justice Moyer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Justices Paul E. Pfeifer and Judith Ann Lanzinger entered dissenting opinions.
Justice Lanzinger wrote that in her view the language from R.C. 2744.02(C) cited by the majority makes a trial court’s order denying immunity to a political subdivision “final,” but when such an order is issued in a multi-claim or multi-party case, it becomes “appealable” only if the trial court judge makes a subsequent Civ.R.54(B) certification that there is “no just reason for delay” in appealing that partial ruling.
Quoting from this Court’s 1993 decision in Wisintainer v. Elcen Power Strut Co., she wrote: “‘In deciding that there is no just reason for delay, the trial judge makes what is essentially a factual determination—whether an interlocutory appeal is consistent with the interests of sound judicial administration, i.e., whether it leads to judicial economy. Trial judges are granted the discretion to make such a determination because they stand in an unmatched position to determine whether an appeal of a final order dealing with fewer than all of the parties in a multiparty case is most efficiently heard prior to trial on the merits.’ ... The General Assembly has clarified that the denial of the benefit of immunity is a final order. But it is still in the hands of the trial judge to determine whether the Civ.R.54(B) language should be added to allow the losing party an immediate appeal.”
In his dissent, Justice Pfeifer concurred with Justice Lanzinger’s conclusion that R.C. 2744.02(C) does not supersede or eliminate the requirement of a Civ.R.54(B) certification in cases where a partial judgment denying a political subdivision’s claim of immunity is made in a case involving multiple claims or multiple parties.
“In Hubbell (v. Xenia) (2007) ... this court held 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).’” wrote Justice Pfeifer. “But in Xenia, this court was not dealing with Civ.R. 54(B)’s limits on the appealability of final orders. Xeniawas not a multiple-defendant case. Neither Xenianor R.C. 2744.02(C) addresses the special circumstance of multiple-party litigation. Civ.R.54(B) should continue to control multiple-party litigation, allowing trial judges to determine how to best achieve judicial economy.”
Contacts
Edward J. Dowd, 937.222.2333, for Anderson Township.
A. Brian McIntosh, 513.929.4040, for George Sullivan.