BancOhio Nat. Bank v. Rubicon Cadillac, Inc., s. 83-1405

• Decision Date: 16 May 1984
• Docket Number: 83-1460,Nos. 83-1405,s. 83-1405
• Citation: 11 Ohio St.3d 32,462 N.E.2d 1379,11 OBR 111
• Court: Ohio Supreme Court
• Parties: , 11 O.B.R. 111 BANCOHIO NATIONAL BANK, Appellee, v. RUBICON CADILLAC, INC. et al., Appellees; S.B. Craig & Company et al., Appellants.

Page 32

11 Ohio St.3d 32

462 N.E.2d 1379, 11 O.B.R. 111

BANCOHIO NATIONAL BANK, Appellee, v. RUBICON CADILLAC, INC. et al., Appellees S.B. Craig & Company et al., Appellants.

Nos. 83-1405, 83-1460.

Supreme Court of Ohio.

May 16, 1984.

Syllabus by the Court

The overruling of a motion to dismiss for failure to join an indispensable party under Civ.R. 19(B) is not a final appealable order within the meaning of R.C. 2505.02 or Civ.R. 54(B).

This an appeal from the Court of Appeals for Montgomery County. Defendants-Appellants, S.B. Craig & Company and Harvey Grain, Inc., seek reversal of a decision of the Court of Common Pleas of Montgomery County denying their motions for joinder of an indispensable party under Civ.R. 19(B); the appellants also seek reversal of the decision of the court of appeals dismissing their appeal for lack of a final appealable order under R.C. 2505.02. Plaintiff-appellee is BancOhio National Bank ("BancOhio"); defendants-appellees are Rubicon Cadillac, Inc. and Thomas A. Simons.

On February 12, 1982, BancOhio filed a complaint which, as amended, alleged that John and Marlene Waddell and Rubicon Cadillac, Inc. executed a note to BancOhio which was in default with a balance due of $75,512.22; and that Simons was liable as a guarantor of the note. The complaint alleged further that BancOhio had, as collateral for the loan, a perfected security interest in crops of corn grown by the Waddells; that the Waddells had knowingly sold the corn to S.B. Craig & Company, Harvey Grain, Inc. and Glenn Fairchild without BancOhio's approval; that, at a time the Waddells were insolvent, the $25,000 payment made by S.B. Craig & Company to the Waddells for the corn was subsequently paid to Commodity Credit Corporation; and that Commodity Credit Corporation may also have a security interest in the corn.

All of the aforementioned parties were named as defendants and BancOhio sought judgment against Rubicon Cadillac, Inc. and Simons based on the note and guaranty, respectively; judgment against S.B. Craig & Company, Harvey Grain, Inc. and Glenn Fairchild; a constructive trust to be placed upon the corn; foreclosure of the security interest in the corn; and that the transfer to Commodity Credit Corporation be set aside or judgment be entered against it for $25,000.

Commodity Credit Corporation was granted a dismissal for lack of jurisdiction over the person since it was a federal entity that could only be sued in a federal court. Appellants each moved for dismissal arguing that Commodity Credit Corporation was an indispensable party under Civ.R. 19(B) and that the action should be tried in federal court. The motions were overruled and appeals by the appellants ensued. The court of appeals granted dismissal for lack of a final appealable order.

The cause is now before this court pursuant to the allowance of motions to certify the record.

James W. Knisley Co., L.P.A., Dayton, and Vicky M. Christiansen, Utica, for appellee BancOhio.

Young, Pryor, Lynn & Jerardi and Charles F. Young, Dayton, for appellees Rubicon Cadillac, Inc. and Thomas A. Simons.

Taft, Stettinius & Hollister, Kim K. Burke and L. Clifford Craig, Cincinnati, for appellant S.B. Craig & Co.

Michael E. Foley, Waynesville, for appellant Harvey Grain, Inc.

FORD, Justice.

Two issues are submitted for resolution in this appeal. The first issue raised is whether Commodity Credit Corporation, an unjoinable party in a state proceeding, is an indispensable party under Civ.R. 19(B). The second issue raised is whether the trial court's ruling in denying the appellants' motions to dismiss was a final appealable order under R.C. 2505.02 or Civ.R. 54(B).

The question as to whether Commodity Credit Corporation is an indispensable party pursuant to Civ.R. 19(B) was never raised at the appellate level. While this may have been appellants' intended assignment of error, the appellate proceedings did not reach that stage. In fact, none of the parties filed briefs presenting this issue as error. Instead, the court of appeals dismissed the appeal on plaintiff-appellee's motion to dismiss for lack of a final appealable order. Therefore, the question of Commodity Credit Corporation's status was not before the court of appeals.

This court cannot address a proposition which was not raised at the intermediate level. State v. Wirick (1910), 81 Ohio St. 343, 90 N.E. 937; Bd. of Commrs. v. Deitsch (1916), 94 Ohio St. 1, 113 N.E. 745. This court's traditional policy against issuing advisory opinions precludes us from considering the issue of Commodity Credit Corporation's status. Thus, we focus on the question of whether the trial court's ruling in denying appellants' motions to dismiss was a final appealable order.

Appellants argue that the trial court's order denying their motions to dismiss when Commodity Credit Corporation was no longer a party was a final appealable order. In pertinent part, R.C. 2505.02 defines "final appealable order" as:

"An order affecting a substantial right in an action which in effect...