Martynyszn v. Budd ( 2011 )

[Cite as Martynyszn v. Budd, 2011-Ohio-6785.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JOHN MARTYNYSZYN, )
) CASE NO. 11 MA 191
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
) AND
MICHAEL BUDD, et al., ) JUDGMENT ENTRY
)
DEFENDANTS-APPELLANTS. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Case No. 01 CV 2110.
JUDGMENT: Appeal Dismissed.
APPEARANCES:
For Plaintiff-Appellee: Attorney John Juhasz
7081 West Boulevard, Suite 4
Youngstown, OH 44512
Attorney Gary L. VanBrocklin
Attorney James Gentile
The Liberty Building
42 North Phelps Street
Youngstown, OH 44503
For Defendants-Appellants: Attorney Daniel T. Downey
Weston Hurd
10 W. Broad Street, Suite 2400
Columbus, OH 43215
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: December 7, 2011
[Cite as Martynyszn v. Budd, 2011-Ohio-6785.]
PER CURIAM:
{¶1} This matter comes on appeal from an October 19, 2011 judgment of the
Mahoning County Court of Common Pleas which denied appellants' (Sheriff Randall
Wellington and former Major Michael Budd) motion for leave to file a motion for
reconsideration of a prior order denying their motion for summary judgment. For the
reasons that follow we dismiss this appeal for lack of a final appealable order. Such
1
ruling moots appellants' emergency motion to stay pending appeal.
{¶2} The appellants here had previously attempted to appeal a November 28,
2003 order denying their motion for summary judgment premised on federal qualified
immunity and statutory immunity under R.C. 2744.02(c).
{¶3} In an opinion issued August 31, 2004 this Court held that the decision
denying summary judgment based on qualified immunity and statutory immunity was not
a final appealable order. Martynyszyn v. Budd, 7th Dist. 2004-Ohio-4824.
{¶4} Regarding qualified immunity this Court reasoned that " * * * denial of a
summary judgment for qualified immunity merely postpones the final disposition of both
the immunity claim and the merits of the case until trial. Appellants retain all substantial
rights." Budd, supra at ¶17. Other appellate districts share this view. Budd at ¶17.
{¶5} Statutory immunity under paragraph (c) to R.C. 2744.02 was added in
Am.Sub.H.B. 350, effective January 27, 1997. However, that provision was ruled
unconstitutional in its entirety on August 16, 1999 in State ex rel. Ohio Academy of Trial
Lawyers v. Sheward (1999), 80 Ohio St. 3d 451, 715 N.E.2d 1062. That ruling was
1
We further note that the trial court continued the trial scheduled for November 28, 2011. This ruling also
-2-
addressed in 2000 S.B. No. 106 which again added paragraph (c) to R.C. 2744.02.
However, the addition to the statute did not become effective until April 3, 2003. And in
the uncodified section of the statute the General Assembly specifically stated that R.C.
2744.02 as amended "apply only to causes of action that accrue on or after the effective
date of this act." The acts complained of in this action occurred during calendar year
2000, after the Sheward decision and before the effective date of the amendment to R.C.
2744.02 recognizing that an order denying an employee of a political subdivision the
benefit of an alleged immunity as a final order.
{¶6} R.C. 2744.02(c) has been litigated extensively on the issue of the right to an
immediate appeal. In Hubbell v. City of Xenia, 115 Ohio St. 3d 77, 2007-Ohio-4839, 873
N.E.2d 878 a divided Supreme Court reversed a Second District decision and held that a
trial court's decision denying a city's motion for summary judgment on the issue of
sovereign immunity due to the existence of genuine issues of material fact was a final
appealable order. The majority reasoned that a plain reading of the statute does not
require a final denial of immunity before there is a right to an interlocutory appeal.
Hubbell at ¶12.
{¶7} In Summerville v. City of Forest Park 128 Ohio St. 3d 221, 2010-Ohio-6280
the Ohio Supreme Court, in a 4-3 decision reconciled R.C. 2744.02(c) and R.C.
2744.02(E) and held that an order denying a motion for summary judgment for claims
brought under Section 1983, Title 42, U.S. Code is a final appealable order pursuant to
R.C. 2744.02(c). Summerville, syllabus.
rendered the motion moot.
-3-
{¶8} There can be no question that under current law there is a right to an
interlocutory appeal from an order overruling such motion for summary judgment.
However, under the unique facts of this case that occurred in the year 2000, such right
does not exist.
{¶9} It is noted in Blackenship v. Portsmouth Police Dept. 4th Dist., 2006-Ohio-
1617 that a number of appellate districts have determined that R.C. 2744.02(c) applies
only (emphasis added) to causes of action that accrued on or after April 9, 2003, the
effective date of S.B. 106. (citations noted in ¶5) None of the cited cases have been
overturned on the proposition of law that R.C. 2744.02(c) applies only to cases that arose
after April 9, 2003, the effective date of the statute.
{¶10} Accordingly, as this Court lacks jurisdiction to consider the appeal under
R.C. 2744.02(c), as it existed in calendar year 2000, the appeal is hereby dismissed.
{¶11} Costs taxed against appellants.
Waite, P.J., concurs.
Donofrio, J., concurs.
DeGenaro, J., concurs.