State ex rel. Celebrezze v. K & S Circuits, Inc., 82-1389

Decision Date31 August 1983
Docket NumberNo. 82-1389,82-1389
Citation6 OBR 408,6 Ohio St.3d 354,453 N.E.2d 653
Parties, 6 O.B.R. 408 The STATE ex rel. CELEBREZZE, Jr., Atty. Gen., Appellant, v. K & S CIRCUITS, INC., Appellee.
CourtOhio Supreme Court

Syllabus by the Court

An order denying a jury trial to the state in an action commenced pursuant to R.C. Chapter 6111 is not a final appealable order under R.C. 2505.02.

This action was brought before the Court of Common Pleas of Montgomery County by the Attorney General (plaintiff-appellant herein), on behalf of the Director of Environmental Protection, against K & S Circuits, Inc. (defendant-appellee herein) for water pollution violations. Specifically, K & S was alleged to have discharged wastewater into Brush Creek in excess of that authorized by the wastewater discharge permit held by the company. The complaint sought both injunctive relief and a civil penalty, and the parties agreed to bifurcate the liability and civil penalty phases of the case.

Prior to trial on the issue of liability, the defendant stipulated to its liability, and agreed to the issuance of a permanent injunction. Thus, the issue was limited to the amount of civil penalty to be paid by defendant, and plaintiff requested a jury trial on this issue.

Defendant then filed a motion to dismiss the plaintiff's amended complaint or, in the alternative, to strike the plaintiff's jury demand. The trial court overruled this motion and stated that the plaintiff was entitled to a jury trial on the issue of the amount of the civil penalty to be assessed. The trial judge did, however, note that he did not wish to impanel a jury, and expressed his hope that the plaintiff would voluntarily waive its jury demand.

The parties began preparations for a jury trial on the penalty issue. However, on the morning of trial, the trial court reversed its earlier decision and ruled that the plaintiff was not entitled to a jury trial on that issue.

Plaintiff took an immediate appeal to the court of appeals. The appellate court ruled that the denial of a jury trial in this cause was not a final appealable order under R.C. 2505.02 and plaintiff's appeal was dismissed.

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

Anthony J. Celebrezze, Jr., Atty. Gen., E. Dennis Muchnicki and Edward P. Walker, Asst. Attys. Gen., for appellant.

Baggott Law Offices Co., L.P.A., and Horace W. Baggott, Jr., Dayton, for appellee.

SWEENEY, Judge.

The sole issue before this court is whether an order denying a jury trial to the state in an action commenced under R.C. Chapter 6111 (Water Pollution Control) is a final appealable order pursuant to R.C. 2505.02.

R.C. 2505.02 states in relevant part:

" * * * [A]n order affecting a substantial right made in a special proceeding * * * is a final order which may be reviewed * * *."

Appellant maintains that under R.C. 2505.02, the trial court's decision was an order affecting a substantial right made in a special proceeding. Appellant argues that unnecessary time and expense will be spent if it is required to try the cause without a jury, and then appeal the jury trial issue. If on appeal appellant is found to be entitled to a jury trial, appellant would have to try the case a second time. On the other hand, appellant submits that if it could obtain review of the jury trial issue prior to trial, resources of both the litigants and the judiciary would be conserved.

Appellee contends that the appellant could have pursued this case to final judgment without prejudicing a right to appeal; and that the goal of "prompt and orderly disposal of litigation" is not served by allowing this type of interlocutory appeal. Continuing, appellee asserts that since R.C. Chapter 6111 was unknown at common law, the state is not entitled to a trial by jury as to the amount of civil penalties to be assessed.

In Squire v. Guardian Trust Co. (1946), 147 Ohio St. 1, 68 N.E.2d 312 , this court stated at page 5, 68 N.E.2d 312:

"The prompt and orderly disposal of litigation is an object much to be desired, and the entertainment of appeals from various orders made by the trial court during the progress of the main action is not in pursuance of such object."

Then, in Bernbaum v. Silverstein (1980), 62 Ohio St.2d 445, 406 N.E.2d 532 , our opinion gave several examples of final reviewable orders arising from special proceedings, and we stated that " * * * a prime determinant of whether a particular order is one made in a special proceeding is the practicability of appeal after final judgment." Id. at 447, 406 N.E.2d 532.

Next, in Amato v. General Motors Corp. (1981), 67 Ohio St.2d 253, 423 N.E.2d 452 , this court stated, at page 258, 423 N.E.2d 452:

" * * * whether an order is made in a special proceeding is resolved through a balancing test. This test weighs the harm to the 'prompt and orderly disposition of litigation,' and the consequent waste of judicial resources, resulting from the allowance of an appeal, with the need for immediate review because appeal after final judgment is not practicable."

Our review of the prior precedent in this realm leads us to conclude that an order denying a jury trial to the state in an action commenced pursuant to R.C. Chapter 6111 is not a final appealable order under R.C. 2505.02.

In the instant case, we do not believe that appellant's right to appeal the denial of a jury trial is compromised by the denial of interlocutory review. This is true, especially in light of "our reluctance to allow for immediate review of rulings made during the pendency of a civil action." Bernbaum, supra, at 447, 406 N.E.2d 532. In implementing the balancing test set forth in Amato, we find the scales of justice weigh in favor of the need for prompt and orderly disposal of litigation, and we find this concern to be paramount within...

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    ...delaying an appeal on this issue best serves the interest of justice." See, also, State, ex rel. Celebrezze, v. K & S Circuits, Inc. (1983), 6 Ohio St.3d 354, 356, 6 OBR 408, 410, 453 N.E.2d 653, 655. We also decline to accept Warden's argument that this action is a special proceeding becau......
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