Scioto App. No. 07CA3185, 2008-Ohio-5613. Certified question answered in the affirmative, judgment reversed, and cause remanded.
Moyer, C.J., and Lundberg Stratton, O'Connor, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
O'Donnell, J., dissents and would affirm the judgment of the court of appeals.
The Supreme Court of Ohio ruled on November 18, 2009 that when a party in a civil lawsuit moves for a stay of trial pending arbitration of the dispute, and the trial court issues an order granting or denying the requested stay, R.C. 2711.02(C) permits an immediate appeal of the trial court’s order, even when that order does not include a judicial determination that there is “no just cause for delay” in pursuing an appeal as required by Civil Rule 54(B).
The Court’s 4-3 majority opinion, which reversed a decision of the 4th District Court of Appeals, was authored by Chief Justice Thomas J. Moyer.
Rule 54(B) of Ohio’s rules of civil procedure addresses the appealability of “partial” orders or rulings issued by a trial court in civil lawsuits that involve multiple claims and/or multiple plaintiffs or defendants. The rule states that when a trial court issues an order or ruling that affects less than all of the parties, or less than all of the claims or rights asserted by or against a single party, that ruling is a “final order” subject to immediate review by a court of appeals only if the trial court includes in its order an express determination that “there is no just cause for delay” in seeking appellate review.
In this case, Timothy and Janeen Mynes of Portsmouth purchased a home and surrounding property in Scioto County. Prior to closing, they contracted with JDG Home Inspections Inc., d/b/a The HomeTeam Inspection Service, to identify any problems or defects on the property. The Myneses subsequently filed suit against JDG, inspector Tom Gambill, the prior owners of the property, the realtors involved in the sale and other defendants. Their complaint asserted multiple tort claims against the various defendants including, among others, breach of fiduciary duties, failure to disclose defects, and negligence.
During pretrial proceedings, JDG filed a motion asking the court to stay all of the Myneses’ claims against it on the basis that the home inspection contract the two parties had signed included an agreement to arbitrate any disputes or damage claims arising from the inspection. The court initially granted an unopposed motion to stay proceedings on all claims involving JDG pending the results of arbitration. Several months later, while the Myneses’ claims against the other defendants remained pending, the trial judge granted a motion by the Mynses to reconsider the stay, and issued a new order vacating the stay and directing the parties to proceed with litigation of the Myneses’ claims against JDG. The new order did not include Civ.R. 54(B) language indicating that there was no just cause for delay of an appeal. JDG attempted to appeal the order vacating the stay for arbitration, but the 4th District Court of Appeals ruled that because the trial court had not included the required Civ.R. 54(B) language, its partial order was not yet ripe for appeal.
The 4th District certified that its ruling on the appealability of the trial court’s order was in conflict with prior rulings on the same legal issue by the 6th and 11th District courts of appeals. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.
Writing for the majority in today’s opinion, Chief Justice Moyer noted that, while this case was pending on appeal, the Court issued an opinion regarding final appealable orders in a very similar case, Sullivan v. Anderson Township (May 2009). “In Sullivan,” he wrote, “we examined 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.’ In that case, the trial court’s order denied the township’s motion for judgment on the pleadings on the issue of political subdivision immunity in a multiparty, multiclaim lawsuit. That order did not finally determine all claims, nor did it include the certification required by Civ.R. 54(B). … Nevertheless, we reasoned that the ‘general rules regarding final appealable orders in multiparty and/or multiclaim cases’ that ‘involve the tandem of R.C. 2505.02(B) for substance and Civ.R. 54(B) for procedure’ did not apply to the order at issue.”
“Civ.R. 54(B) certification ordinarily serves to confirm that the trial court has determined that its order should be appealable. The trial court makes this determination ‘in order to further the efficient administration of justice and to avoid piecemeal litigation or injustice attributable to delayed appeals.’ … But in Sullivan, we held that such a determination by the trial court was not necessary; the General Assembly had already made the determination that such orders were immediately appealable by indicating, in R.C. 2744.02(C), that the orders are ‘final.’
“We find Sullivan controlling in this case. Like Sullivan, this action involves multiple parties and claims, and the order did not contain the Civ.R. 54(B) certification. And, as in Sullivan,the order in this case was a final, appealable order according to statute, even without Civ.R. 54(B) certification.
R.C. 2711.02(C) provides: ‘[A]n order … that grants or denies a stay of a trial of any action pending arbitration … is a final order and may be reviewed, affirmed, modified, or reversed on appeal pursuant to the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code.’ Just as with the statute in Sullivan, the General Assembly has already determined that orders under the ambit of R.C. 2711.02(C) are final and appealable. Therefore, there is no need for the trial court to determine whether to certify the order for appeal.”
Chief Justice Moyer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.
Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, noting that she dissented from the Court’s decision in Sullivan, and that the legal reasoning underlying her dissent in that case was also applicable here. She wrote: “The trial court has been given authority under Civ.R. 54(B) to decide whether to render final orders appealable in multiparty litigation; this authority is not affected by R.C. 2711.02(C).”
Justice Terrence O’Donnell dissented without opinion, stating that he would affirm the judgment of the court of appeals.
Scott L. Braum, 937.396.0089, for JDG Home Inspections Inc.
Kristin Rosan, 614.228.5600, for Timothy and Janine Mynes.
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