Hubbell v. City of Xenia

• Decision Date: 03 October 2007
• Docket Number: No. 2006-1589.,No. 2006-1528.,2006-1528.,2006-1589.
• Citation: 115 Ohio St.3d 77,2007 Ohio 4839,873 N.E.2d 878
• Parties: HUBBELL, Appellee, v. CITY OF XENIA, Appellant.
• Court: Ohio Supreme Court

873 N.E.2d 878

115 Ohio St.3d 77

2007-Ohio-4839

HUBBELL, Appellee, v. CITY OF XENIA, Appellant.

No. 2006-1528.

No. 2006-1589.

Supreme Court of Ohio.

Submitted May 23, 2007.

Decided October 3, 2007.

McNamee & McNamee, P.P.L., Michael P. McNamee, and Gregory B. O'Connor, Beavercreek, for appellee.

Subashi, Wildermuth & Ballato, Lynnette Ballato, and Tabitha Justice, Dayton, for appellant.

Barry M. Byron, Stephen L. Byron, Willoughby, and John Gotherman, urging reversal for amicus curiae Ohio Municipal League.

Scott, Scriven & Wahoff, L.L.P., Gregory B. Scott, Columbus, and Patrick J. Schmitz, urging reversal for amicus curiae Ohio School Boards Association.

Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, James A. Climer, and Frank H. Scialdone, Cleveland, urging reversal for amicus curiae city of Circleville.

LUNDBERG STRATTON, J.

{¶ 1} The city of Xenia, defendant-appellant, appeals from a decision of the Greene County Court of Appeals, dismissing Xenia's appeal on the basis that the trial court's decision denying summary judgment on the city's claim of immunity from liability was not a final, appealable order under R.C. 2744.02(C), as it was not an actual denial of immunity.

{¶ 2} We reverse the judgment of the court of appeals and hold 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).

Facts and Procedural History

{¶ 3} Dottie Hubbell, plaintiff-appellee, filed a negligence action against Xenia after an incident in which sewage backed up in her home. Xenia moved for summary judgment on all claims on the grounds that there was no evidence of negligence and that Xenia was otherwise entitled to immunity under R.C. 2744.02(A)(1) and 2744.03.

{¶ 4} The trial court issued a decision denying Xenia summary judgment on the basis that there was a question of fact as to whether Xenia was entitled to immunity under R.C. Chapter 2744. The trial court further held that R.C. 2744.03(A)(5) immunity does not shield a political subdivision from the negligence of an employee and ordered the case to mediation.

{¶ 5} Xenia appealed, and the Court of Appeals for Greene County dismissed the appeal, concluding that the trial court's decision denying summary judgment on Xenia's claim of immunity from liability was not a final, appealable order under R.C. 2744.02(C). Hubbell v. Xenia, 167 Ohio App.3d 294, 2006-Ohio-3369, 854 N.E.2d 1133.

{¶ 6} The court of appeals recognized its decision as being in conflict with a decision from the Fourth District Court of Appeals in Lutz v. Hocking Technical College (May 18, 1999), Athens App. No. 98CA12, 1999 WL 355187. As a result, the appellate court certified the following question to us: "Is the denial of a governmental entity's motion for summary judgment on the issue of sovereign immunity due to the existence of genuine issues of material fact a final appealable order, pursuant to R.C. 2744.02(C)?"

{¶ 7} We accepted the certified question, as well as a discretionary appeal. After this court determined that a conflict existed between Hubbell and Lutz, the Fourth District Court of Appeals overruled the Lutz decision in Estate of Graves v. Circleville, Ross App. No. 06CA2900, 2006-Ohio-6626, 2006 WL 3691609, and held that "an entry that concludes that a genuine issue of material fact exists as to whether a defendant is entitled to immunity is not a final appealable order under R.C. 2744.02(C) because it does not actually deny the defendant the benefit of immunity." Id., ¶ 16.¹

{¶ 8} This resolved the certified conflict. However, the same issue is still before this court pursuant to a discretionary appeal.

Analysis

{¶ 9} "It is well-established that an order must be final before it can be reviewed by an appellate court. If an order is not final, then an appellate court has no jurisdiction." Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266. Generally, the denial of summary judgment is not a final, appealable order. See, e.g., State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23, 24, 37 O.O.2d 358, 222 N.E.2d 312. However, Xenia argues that a provision in R.C. Chapter 2744, the Political Subdivision Tort Liability Act, establishes an exception to this rule.

{¶ 10} 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."

{¶ 11} We must first look to the plain language of the statute itself to determine the legislative intent. State ex rel Burrows v. Indus. Comm. (1997), 78 Ohio St.3d 78, 81, 676 N.E.2d 519. We apply a statute as it is written when its meaning is unambiguous and definite. Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52, citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545, 660 N.E.2d 463. Finally, an unambiguous statute must be applied in a manner consistent with the plain meaning of the statutory language. Burrows, 78 Ohio St.3d at 81, 676 N.E.2d 519.

{¶ 12} We conclude that the use of the words "benefit" and "alleged" illustrates that the scope of this provision is not limited to orders delineating a "final" denial of immunity. R.C. 2744.02(C) defines as final a denial of the "benefit" of an "alleged" immunity, not merely a denial of immunity. Therefore, the plain language of R.C. 2744.02(C) does not require a final denial of immunity before the political subdivision has the right to an interlocutory appeal.

{¶ 13} It appears that the application of R.C. 2744.02(C) by the courts of appeals falls into three categories. Some courts, like the Second District in this case, find a lack of jurisdiction in any appeal from an order finding a genuine issue of fact regarding whether immunity exists under R.C. Chapter 2744. Other appellate courts review such orders on the merits, holding that they are final under R.C. 2744.02(C). See Tomlin v. Pleban, 8th Dist. No. 87699, 2006-Ohio-6589, 2006 WL 3635173. Still other courts of appeals review the merits on a preliminary basis and dismiss for lack of jurisdiction only after determining that the question of immunity turns on a question of fact. See Bays v. Northwestern Local School Dist. (July 21, 1999), 9th Dist. No. 98CA0027, 1999 WL 514029. See, also, Cunningham v. Allender, 5th Dist. No. 2004CA00337, 2005-Ohio-1935, 2005 WL 941141.

{¶ 14} There even appears to be confusion within certain districts as to the application of R.C. 2744.02(C). For example, the Fourth District's decision in Estate of Graves, 2006-Ohio-6626, 2006 WL 3691609, came six months after a decision in which the court expressly relied upon R.C. 2744.02(C) to address the merits of the denial of summary judgment. Malone v. Chillicothe, 4th Dist. No. 05CA2869, 2006-Ohio-3268, 2006 WL 1745052. Further, the Second District in Hubbell noted that it had previously interpreted R.C. 2744.02(C) to reach the opposite conclusion, i.e., that such orders are final. See Garrison v. Bobbitt (1999), 134 Ohio App.3d 373, 731 N.E.2d 216, and Weber v. Haley (May 1, 1998), Clark App. No. 97CA108, 1998 WL 211832. Therefore, clarification of this issue is needed.

{¶ 15} The court of appeals in this case noted that its past approach under R.C. 2744.02(C) was to consider denials of summary judgment as final, appealable orders when the trial court had concluded that there were genuine issues of material fact on immunity. 167 Ohio App.3d 294, 2006-Ohio-3369, 854 N.E.2d 1133, ¶ 8. However, the court acknowledged that other districts have reached the opposite conclusion. Id. at ¶ 9-12. The court of appeals determined that the Ninth District had a better approach, citing Brown v. Akron Bd. of Edn. (1998), 129 Ohio App.3d 352, 717 N.E.2d 1115, which held that the denial of a school district's motion for summary judgment did not deny the district the benefit of sovereign immunity and was not immediately appealable.² Id. at 358, 717 N.E.2d 1115.

{¶ 16} In Brown, the court failed to completely analyze the statute when it stated: "The issue this court must determine is whether the trial court's order denying the board's motion for summary judgment was an order denying the board `an alleged immunity from liability as provided in Chapter 2744.'" Id. at 356, 717 N.E.2d 1115. The statute actually reads "the benefit of an alleged immunity" (emphasis added), which we have determined is a significant distinction. Brown then concluded that if the trial court found that issues of fact existed, the order denying summary judgment was not a final, appealable order.

{¶ 17} In addition to Brown, the court of appeals in this case relied on State Auto. Mut. Ins. Co. v. Titanium Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1199, in which we held that the denial of a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim was not a final, appealable order, to support its conclusion that a denial of a political subdivision's motion for summary judgment is not immediately appealable.

{¶ 18} The procedural posture of Titanium distinguishes it from the case at bar. In Titanium, the third-party defendant appealed from a trial court decision denying a motion to dismiss based on immunity without opinion. Because there was no record or opinion, we could not determine the basis of the appeal.

{¶ 19} The parties in Titanium did not appeal the issue whether R.C. 2744.02(C) was applicable; therefore, we expressly declined to address the merits of that argument. Titanium at ¶ 9. Rather, relying on traditional concepts, we held that there was no final, appealable order in the current posture of the case and sent the case back to the trial court. Our opinion was not based on R.C. 2744.02(C), as the issue of its applicability...