Celebrezze v. Netzley

• Decision Date: 16 May 1990
• Docket Number: No. 88-1755,88-1755
• Citation: 51 Ohio St.3d 89,554 N.E.2d 1292
• Parties: , 58 USLW 1970, 17 Media L. Rep. 1970 CELEBREZZE, Appellant, v. NETZLEY et al., Appellees.
• Court: Ohio Supreme Court

Page 89

51 Ohio St.3d 89

554 N.E.2d 1292, 58 USLW 1970, 17 Media L. Rep. 1970

CELEBREZZE, Appellant, v. NETZLEY et al., Appellees.

No. 88-1755.

Supreme Court of Ohio.

Submitted March 6, 1990.

Decided May 16, 1990.

Don C. Iler Co., L.P.A., and

Don C. Iler, for appellant.

Weston, Hurd, Fallon, Paisley & Howley, Louis Paisley and Hernan N. Visani, for appellee Robert E. Netzley.

Huffman, Landis & Weaks and Robert Huffman, for appellee Miami County Republican Committee.

PER CURIAM.

The controlling issue in this case is whether the denial of a motion for summary judgment constitutes a final appealable order, pursuant to R.C. 2505.02, where such motion is premised upon the assertion of an absolute immunity from liability in defamation actions accorded under the First Amendment to expressions of opinion. For the reasons which follow, we answer such query in the negative, and thus reverse the decision of the court of appeals.

R.C. 2505.02 provides, in pertinent part:

"An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial."

An order, to be final, must fit into at least one of the three categories set forth in R.C. 2505.02. General Electric Supply Co. v. Warden Electric, Inc. (1988), 38 Ohio St.3d 378, 528 N.E.2d 195, syllabus.

The trial court's grant of summary judgment in favor of defendants Sharkey and the Plain Dealer "determine[d] the action" as to these parties, and was thus a final order pursuant to R.C. 2505.02. Together with the appropriate Civ.R. 54(B) language, it was a final appealable order, even though the summary judgment motions filed by appellees Netzley and the Committee were denied. Noble v. Colwell (1989), 44 Ohio St.3d 92, 540 N.E.2d 1381, at syllabus.

The denial of a motion for summary judgment does not determine the action and prevent a judgment, and thus generally does not constitute a final order under R.C. 2505.02. Nayman v. Kilbane (1982), 1 Ohio St.3d 269, 271, 1 OBR 379, 380-381, 439 N.E.2d 888, 890; Balson v. Dodds (1980), 62 Ohio St.2d 287, 16 O.O.3d 329, 405 N.E.2d 293, paragraph one of the syllabus; State, ex rel. Overmeyer, v. Walinski (1966), 8 Ohio St.2d 23, 37 O.O.2d 358, 222 N.E.2d 312. ¹ Further, as this court observed in Noble, supra, 44 Ohio St.3d at 96, 540 N.E.2d at 1385, the trial court's use of Civ.R. 54(B) language "does not turn an otherwise non-final order into a final appealable order."

Here, however, appellees argue, and the court of appeals held, that the trial court's order denying summary judgment on the ground that the alleged libelous statements were actionable statements of fact--not expressions of opinion--affects "a substantial right made in a special proceeding," and is thus a final order under the second category of R.C. 2505.02. There is little doubt that the denial of summary judgment below affects a substantial right, i.e., the right to express one's opinion as guaranteed by the First Amendment to the United States Constitution and Section 11, Article I of the Ohio Constitution.

However, the order denying summary judgment was not "made in a special proceeding" as this court has previously construed that term. See, e.g., General Acc. Ins. Co. v. Insurance Co. of North America (1989), 44 Ohio St.3d 17, 540 N.E.2d 266, paragraph two of the syllabus (order in a declaratory judgment action); Tilberry v. Body (1986), 24 Ohio St.3d 117, 24 OBR 308, 493 N.E.2d 954 (order in a statutory dissolution of a partnership); Humphry v. Riverside Methodist Hosp. (1986), 22 Ohio St.3d 94, 22 OBR 129, 488 N.E.2d 877 (order compelling disclosure of confidential information); Amato v. General Motors Corp. (1981), 67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452 (certification of a class under Civ.R. 23[C] ). Cf. Bernbaum v. Silverstein (1980), 62 Ohio St.2d 445, 16 O.O.3d 461, 406 N.E.2d 532 (overruling a motion to disqualify counsel is not an order made in a special proceeding), and cases cited therein at 447, 16 O.O.3d at 462-463, 406 N.E.2d at 534. The court's order in this case was made in "a straightforward civil action," Noble, supra, 44 Ohio St.3d at 94, 540 N.E.2d at 1383, that is, one for defamation.

Nor is a denial of summary judgment converted into a "special proceeding" in and of itself by virtue of the First Amendment interest involved. The court of appeals seized upon our statement in Scott v. News-Herald (1986), 25 Ohio St.3d 243, 250, 25 OBR 302, 307, 496 N.E.2d 699, 705, that "[e]xpressions of opinion are generally accorded absolute immunity from liability under the First Amendment," and erroneously concluded that "[i]mmunity from damages necessarily includes immunity from trial." The court of appeals then analogized this case to federal cases permitting the interlocutory appeal of orders denying motions asserting an absolute or qualified immunity defense pursuant to the collateral order doctrine adopted in Cohen v. Beneficial Indus. Loan Corp. (1949), 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528.

We do not rely upon these cases here. Under the federal collateral order doctrine, orders which do not terminate the proceedings in the district court are final and appealable for purposes of Section 1291, Title 28, U.S. Code, if they (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) are effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay (1978), 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351. This doctrine involves judicial construction of the federal final order statute and is thus not applicable to the states, although a state may of course adopt a similar rule under its own statutes. Borman v. Borman (1979), 378 Mass. 775, 393 N.E.2d 847. This court has not adopted a similar collateral order rule, and even if we had, this case would not come within the ambit of such rule.

First, the issue presented in this case is not "completely separate from the merits of the action." Indeed, the question of whether appellees' statements constituted opinion or fact is an essential issue in every defamation action--it is not a collateral issue. See Van Cauwenberghe v. Biard (1988), 486 U.S. 517, 527-530, 108 S.Ct. 1945, 1952-1954, 100 L.Ed.2d 517 (denial of a motion to dismiss on the ground of forum non conveniens is not completely separate from the merits of the action and thus is not immediately appealable under the collateral order doctrine).

Second, the issue presented by appellees' motions for summary judgment is not "effectively unreviewable on appeal from a final judgment." Each of the cases relied upon by the court of appeals dealt with immunity from suit rather than defense to liability. See Nixon v. Fitzgerald (1982), 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (absolute Presidential immunity); Smith v. McDonald (C.A.4, 1984), 737 F.2d 427, affirmed sub nom. McDonald v. Smith (1985), 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (absolute immunity); Kennedy v. Cleveland (C.A.6, 1986), 797 F.2d 297; Mitchell v. Forsyth (1985), 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (qualified immunity of Attorney General from suit).

"The critical question, following Mitchell, is whether 'the essence' of the claimed right is a right not to stand trial. * * * This question is difficult because in some sense, all litigants who have a meritorious pretrial claim for dismissal can reasonably claim a right not to stand trial. But the final-judgment rule requires that except in certain narrow circumstances in which the right would be 'irretrievably lost' absent an immediate appeal, Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 431, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985), litigants must abide by the district court's judgments, and suffer the concomitant burden of a trial, until the end of proceedings before gaining appellate review." Van Cauwenberghe, supra, 486 U.S. at 524, 108 S.Ct. at 1950. Thus, the focus of the federal cases is whether the individual has a right not to stand trial simply because of who he is, e.g., whether he is protected from standing trial because of an immunity attaching to the office he holds. Nixon, supra; Mitchell, supra. The "essence" of this personal immunity, for example, that the President of the United States is absolutely immune from being haled into court for all acts within the outer perimeters of his duties of office "is effectively lost if a case is erroneously permitted to go to trial." Mitchell, supra, 472 U.S. at 526, 105 S.Ct. at 2815.

The "essence" of the claimed "immunity" in the case before us today is that when a person, any person, is haled into court on a libel claim he will not be liable for his actions or statements if they constitute protected opinion rather than assertions of fact. Such a claimed right is not lost if a motion for summary judgment fails and a trial ensues. The right to be free from liability for expressions of opinion can certainly be vindicated on appeal. The issue is eminently reviewable on appeal from final judgment, and thus is not an immediately appealable collateral order. ²

For this same reason, the denial of summary judgment in defamation actions is not "an order made in a special proceeding," pursuant to R.C 2505.02, for " '[a] prime determinant of whether a particular order is one made in a special proceeding is the practicability of appeal after final judgment. * * * ' " Amato, supra, 67 Ohio St.2d at 258, 21 O.O.3d at 161, 423 N.E.2d at 455-456, quoting Bernbaum, supra, 62 Ohio St.2d at 447, 16 O.O.3d at 463, 406 N.E.2d at 534.

To hold, as did the court below, that the...