Wisintainer v. Elcen Power Strut Co.

• Decision Date: 15 September 1993
• Docket Number: No. 92-101,92-101
• Parties: WISINTAINER et al., Appellants, v. ELCEN POWER STRUT COMPANY; JDB Engineering, Inc. et al., Appellees.
• Court: Ohio Supreme Court

Page 352

67 Ohio St.3d 352

617 N.E.2d 1136

WISINTAINER et al., Appellants, v. ELCEN POWER STRUT COMPANY; JDB Engineering, Inc. et al., Appellees.

No. 92-101.

Supreme Court of Ohio.

Submitted Feb. 16, 1993.

Decided Sept. 15, 1993.

SYLLABUS BY THE COURT

1. For purposes of Civ.R. 54(B) certification, in deciding that there is no just reason for delay, the trial judge makes what is essentially a factual determination--whether an interlocutory appeal is consistent with the interests of sound judicial administration.

2. Where the record indicates that the interests of sound judicial administration could be served by a finding of "no just reason for delay," the trial court's certification determination must stand.

Plaintiff-appellant Larry E. Wisintainer was employed by defendant Soehnlen Piping Company, Inc. ("Soehnlen") as a pipefitter. On August 26, 1987, while working on a construction site in Cambridge, Ohio, appellant sustained serious head and facial injuries as a result of being struck by a length of pipe.

The accident occurred during the construction of a liquid detergent manufacturing and bottling plant owned by Colgate-Palmolive Company ("Colgate"). Colgate entered into an agreement with Graham Container Corporation ("Graham") to design, arrange for the installation of, and operate the automated processes in Colgate's plant. Graham contracted with Sverdrup Corporation ("Sverdrup") to act as the construction manager on the project. Sverdrup, in turn, subcontracted the various work to, among others, Soehnlen. Soehnlen supplied all materials and labor needed to install the mechanical pipe work required to convey air and water to Graham's process equipment. The specifications and technical drawings used by Soehnlen were prepared by JDB Engineering, Inc. ("JDB"), one of Graham's subcontractors. Grinnell Corporation ("Grinnell") manufactured pipe clamps of the kind used by Soehnlen to suspend the pipe which fell on appellant. Famous Supply Company ("Famous") supplied those clamps to Soehnlen.

By the time appellants filed their second amended complaint on August 17, 1989, all of the above parties had been named as defendants. Defendants also filed cross-claims amongst themselves.

Appellants' claim against Colgate was dismissed with prejudice on January 31, 1990. Between December 19, 1989 and October 19, 1990, all remaining defendants filed motions for summary judgment. At the time the motions for summary judgment were filed, the cross-claims and third-party claims remained pending.

In a June 24, 1991 entry, the trial court granted the motions for summary judgment of Grinnell, Famous and JDB, and denied those of Graham, Sverdrup and Soehnlen. On August 12, 1991, appellants petitioned the court for a nunc pro tunc judgment entry reflecting that there was "no just reason for delay" as to the order granting the summary judgments. On September 3, 1991, the court complied, ordering that "[f]or good cause shown, and in accordance with Civ.R. 54(B), the Court expressly finds that there is no just reason for delay."

Appellants sought immediate review before the Court of Appeals for Guernsey County. At the time the notice of appeal was filed, appellants' claims against Graham and Sverdrup remained pending. In addition, the cross-claim seeking indemnification and contribution filed by Sverdrup against Grinnell was pending as well as the cross-claims filed by Graham against JDB and Sverdrup.

On November 4, 1991, the appeal filed against Famous Supply was dismissed. On November 18, 1991, the Guernsey County Court of Appeals dismissed appellants' appeal against JDB and Grinnell for lack of jurisdiction, expressly finding, "[n]o final, appealable order."

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

The Okey Law Firm, L.P.A., and Steven P. Okey, Canton, for appellants.

Buckingham, Doolittle & Burroughs, David T. Moss and Douglas C. Bond, Canton, for appellee JDB Engineering, Inc.

Arter & Hadden, William A. Adams and Robert R. Dunn, Columbus, for appellee Grinnell Corp.

PFEIFER, Justice.

An appellate court's review of a trial court's grant of certification should be a two-step process. First, the focus of the appellate court's review should be on whether the order appealed is "final" as defined by R.C. 2505.02. The reviewing court should concentrate on answering that predominantly legal question of whether the order sought to be appealed affects a substantial right and whether it in effect determines an action and prevents a judgment. It is in this first step of the review process that the court of appeals plays its most important role.

Second, the appellate court should review the trial court's determination, required by Civ.R. 54(B), that "there is no just reason for delay." As this court has held in the past, the phrase "no just reason for delay" is not a mystical incantation which transforms a nonfinal order into a final appealable order. Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64. Such language can, however, through Civ.R. 54(B), transform a final order into a final appealable order.

In deciding that there is no just reason for delay, the trial judge makes what is essentially a factual determination--whether an interlocutory appeal is consistent with the interests of sound judicial administration, i.e., whether it leads to judicial economy. Trial judges are granted the discretion to make such a determination because they stand in an unmatched position to determine whether an appeal of a final order dealing with fewer than all of the parties in a multiparty case is most efficiently heard prior to trial on the merits. The trial court can best determine how the court's and the parties' resources may most effectively be utilized. The trial court is most capable of ascertaining whether not granting a final order might result in the case being tried twice. The trial court has seen the development of the case, is familiar with much of the evidence, is most familiar with the trial court calendar, and can best determine any likely detrimental effect of piecemeal litigation. More important than the avoidance of piecemeal appeals is the avoidance of piecemeal trials. It conserves expense for the parties and clarifies liability issues for jurors when cases are tried without "empty chairs."

In making its factual determination that the interest of sound judicial administration is best served by allowing an immediate appeal, the trial court is entitled to the same presumption of correctness that it is accorded regarding other factual findings. An appellate court should not substitute its judgment for that of the trial court where some competent and credible evidence supports the trial court's factual findings. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d 1273. Likewise, regarding Civ.R. 54(B) certification, where the record indicates that the interests of sound judicial administration could be served by a finding of "no just reason for delay," the trial court's certification determination must stand. An appellate court need not find that the trial court's certification is the most likely route to judicial economy, but that it is one route which might lead there. Trial courts, however, should be careful not to breach the duty entrusted to them, and should avoid a mechanical application of the Civ.R. 54(B) language.

The first step that should have been taken by the court of appeals in this case was to determine whether the order appealed was "final," as defined by R.C. 2505.02. The present order fits squarely within the statute. The statute's first clause addresses the type of order at issue in this case--an "order that affects a substantial right in an action which in effect determines the action and prevents a judgment." The order given in this case certainly affects a substantial right, that being potential recovery against an alleged tortfeasor. The order also determines the action against the appellees. All of the causes of action between appellants and appellees are resolved by the summary judgment. The summary judgment prevents a judgment against appellees for appellants. That cross-claims exist between appellees and other defendants is irrelevant--at this point, appellants cannot recover from appellees.

Since the summary judgment granted at the trial level was a final order pursuant R.C. 2505.02, the appellate court next should have determined whether the record indicates that a finding of "no just reason for delay" could lead to judicial economy. The paramount consideration to be made is whether the court's determination serves judicial economy at the trial level.

In this case, the trial court did not act reflexively in finding "no just reason for delay." The court acted only after appellants filed a motion seeking an order to certify nunc pro tunc. Thus, the trial judge did not mechanically sign a boilerplate summary judgment entry--he realized the import of his certification. The record reveals that that reasoned decision could result in judicial economy.

First, the life of the cross-claims against Grinnell and JDB independent of the original claims against them is tenuous, at best. The viability of the cross-claims depends on the alleged negligence of Grinnell and JDB, and the issue of their negligence would be at the heart of an immediate appeal on the original claims. A resolution of that issue would appear to resolve all parties' claims against Grinnell and JDB, or at least would be very helpful in settlement. If summary judgment against plaintiffs were upheld, Grinnell and JDB might also decide to seek summary judgment against Sverdrup and Graham, respectively, which they failed to do specifically earlier. If the failure to seek summary judgment against the complaining cross-defendants was purposeful, an immediate appeal prevents a party from keeping alive a shaky...