Natl. City Commercial Capital Corp. v. Aaaa, 2006-0169.

Citation2007 Ohio 2942,868 N.E.2d 663,114 Ohio St.3d 82
Decision Date05 July 2007
Docket NumberNo. 2006-0169.,2006-0169.
PartiesNATIONAL CITY COMMERCIAL CAPITAL CORPORATION, Appellee, v. AAAA AT YOUR SERVICE, INC., et al., Appellants.
CourtUnited States State Supreme Court of Ohio

J. Timothy Riker, Cincinnati, for appellants Horizon Staffing, Inc., and Meadowlark Field Services, Inc.

Daniel Wenstrup, Cincinnati, for appellant Lair Swanson, Inc.

Trenz, McKay & Knabe Co., L.P.A., and Alan Trenz, for appellant Lost Valley Ranch Corp.

Jesse Lipcius and Jason Treherne, for appellant Master Tool Company, Inc.

Ronald J. Kozar, for appellants North American Land Trust and Pine Point, L.L.C.

Patricia Downing, Hamilton, for appellant Palm Beach Tours and Transp.

Beckman Weil Shepardson, L.L.C., and Richard Hopple, for appellant Pasadena Community Church, Inc.

Bagley & Langan, P.L.L.C., and Patrick Bagley, for appellant Powell & Assoc., Engineers.

Davidson, Adams & Creach Co., L.P.A., and Larry H. Creach, Hamilton, for appellant Rees Contract Service, Inc.

Michael D. Hon, for appellants Say Trade, Watson & Cochran, Inc., and Wizard Technologies, Inc.

Angela Jackson, for appellant Shaffran Companies, Ltd.

Barron, Peck, Bennie & Schlemmer, L.P.A., and Michael Barron, Cincinnati, for appellant South Tampa Homes, Inc.

Norbert Doellman Jr., Hamilton, for appellant SQV Technologies.

Brannon & Associates and Dwight D. Brannon, Dayton, for appellant Machined Metals Co., Inc.

William D. Bell, Cincinnati, for appellant Vision Health Management.

PFEIFER, J.

{¶ 1} The Twelfth District Court of Appeals certified this case as a conflict pursuant to Section 3(B)(4), Article IV of the Ohio Constitution and App.R. 25. It found its judgment to be in conflict with the judgment of the Eighth District Court of Appeals in Preferred Capital, Inc. v. Strellec, 161 Ohio App.3d 346, 2005-Ohio-2607, 830 N.E.2d 403. The certified question is "[w]hether a dismissal other than on the merits which prevents re-filing in the trial court is a final, appealable order." For the reasons that follow, we conclude that such a dismissal is a final, appealable order.

{¶ 2} Appellants are various small businesses, nonprofit organizations, and associated individuals located in states other than Ohio. These entities contracted with NorVergence, Inc., a New Jersey telecommunications company, for landline, cellular telephone, and high-speed Internet services. The contracts included five-year equipment rentals for the hardware necessary to access the various services. Nor-Vergence assigned appellants' contracts to appellee, National City Commercial Capital Corporation ("National City"). After the contracts were assigned, NorVergence failed to provide the services it had agreed to provide.

{¶ 3} NorVergence was forced into bankruptcy by its creditors. Many of NorVergence's customers refused to pay the contract price because they did not receive services. The present case arose when National City filed lawsuits against appellants seeking payments owed under the contracts which had been assigned to it.

{¶ 4} Claiming that the forum-selection clause contained in the contracts provided the Butler County Court of Common Pleas with jurisdiction, National City filed suit in that court. Appellants filed motions to dismiss, claiming that Ohio did not have personal jurisdiction over them. The trial court granted these motions to dismiss, and National City appealed. Appellants moved to dismiss the appeal, arguing that the trial court's dismissal for lack of personal jurisdiction was not a final, appealable order. The court of appeals denied the motion to dismiss and determined that the trial court's dismissal was a final, appealable order. The court of appeals certified its decision as in conflict with Preferred Capital, 161 Ohio App.3d 346, 2005-Ohio-2607, 830 N.E.2d 403.

{¶ 5} R.C. 2505.02 defines a final order for purposes of appeal. Under R.C. 2505.02(B)(1), "[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment."

{¶ 6} A "substantial right" is "a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect." R.C. 2505.02(A)(1). For purposes of this case, we will assume that the trial court's dismissal for lack of personal jurisdiction deprived National City of a substantial right — the right to seek enforcement of its contract with appellants.

{¶ 7} To be final, however, "an order must also determine an action and prevent a judgment." Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 88, 541 N.E.2d 64, citing Gen. Elec. Supply Co. v. Warden Elec., Inc. (1988), 38 Ohio St.3d 378, 528 N.E.2d 195, syllabus; R.C. 2505.02(B)(1). "For an order to determine the action and prevent a judgment for the party appealing, it must dispose of the whole merits of the cause or some separate and distinct branch thereof and leave nothing for the determination of the court." Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities v. Professionals Guild of Ohio (1989), 46 Ohio St.3d 147, 153, 545 N.E.2d 1260. See State ex rel. Downs v. Panioto, 107 Ohio St.3d 347, 2006-Ohio-8, 839 N.E.2d 911, ¶ 20.

{¶ 8} The trial court ruled that "[n]o evidence has been presented here from which the court may conclude that this defendant is subject to jurisdiction in the Ohio courts pursuant to R.C. 2307.382 and/or Civil Rule 4.3." By rule, a dismissal for lack of personal jurisdiction "operate[s] as a failure otherwise than on the merits." Civ.R. 41(B)(4)(a). Ordinarily, a dismissal "otherwise than on the merits" does not prevent a party from refiling and, therefore, ordinarily, such a dismissal is not a final, appealable order. In this case, however, National City cannot refile. In essence, a final judgment has been rendered against National City because the cause has been disposed of and there is nothing left for the determination of the trial court. See Hamilton Cty. Bd. of Mental Retardation, 46 Ohio St.3d at 153, 545 N.E.2d 1260.

{¶ 9} National City has a contract that it is seeking to enforce, but upon a determination that the trial court lacks personal jurisdiction over the defendant, ...

To continue reading

Request your trial
78 cases
  • Crown Servs., Inc. v. Miami Valley Paper Tube Co.
    • United States
    • Ohio Supreme Court
    • 15 Septiembre 2020
    ...2002 WL 1307400. The court's journal entry further explained that this court's decision in Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc. , 114 Ohio St.3d 82, 2007-Ohio-2942, 868 N.E.2d 663, is distinguishable from this case because Natl. City involved a dismissal without p......
  • Henderson v. Haverfield
    • United States
    • Ohio Court of Appeals
    • 24 Junio 2022
    ... ... Surveillance. Net, LLC v. Rika Group, Corp., 7th Dist ... No. 11 MA 165, 2012-Ohio-4569, ... prevent a judgment * * *." See Natl. City Commercial ... Capital Corp. v. AAAA at ... ...
  • DeepRock Disposal Sols., LLC v. Forté Prods., LLC
    • United States
    • Ohio Court of Appeals
    • 21 Abril 2021
    ...some separate and distinct branch thereof and leave nothing for the determination of the court.' " Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, 868 N.E.2d 663, ¶ 7, quoting Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v. ......
  • Infrasys, Inc. v. Bros. Pavement Prods., Corp.
    • United States
    • Ohio Court of Appeals
    • 27 Marzo 2020
    ...as appropriate for appeal where the judgment prevents a refiling in the trial court. In Natl. City Commercial Capital Corp. v. AAAA At Your Serv., Inc. , 114 Ohio St.3d 82, 868 N.E.2d 663, 2007-Ohio-2942, ¶ 10, the Ohio Supreme Court considered whether dismissal for lack of personal jurisdi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT