New Waste Concepts, Inc. v. Applegate Insulation, L.L.C.

[Cite as New Waste Concepts, Inc. v. Applegate Insulation, L.L.C. , 2019-Ohio-283.]
COURT OF APPEALS
WOOD COUNTY, OHIO
SIXTH APPELLATE DISTRICT
NEW WASTE CONCEPTS, INC., JUDGES:
Hon. W. Scott Gwin, P.J
Plaintiff – Appellee Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2018-WD-0070
APPLEGATE INSULATION LLC, ET AL.
Defendants – Appellants O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Wood County Court of
Common Pleas, Case No. 2018 CV 0205
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: January 29, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
CARL C. IRELAND ANDREW R. MAYLE
Spitler Huffman, LLP RONALD J. MAYLE
932 Dixie Highway Mayle LLC
Rossford, Ohio 43460 P.O. Box 263
Perrysburg, Ohio 43552
Wood County, Case No. 2018-WD-0070 2
Hoffman, J.
{¶1} Appellants Applegate Insulation, LLC and Applegate Holdings, LLC appeal
the judgment entered by the Wood County Common Pleas Court denying their motion to
dismiss Appellee New Waste Concepts, Inc.’s complaint, or in the alternative to stay the
action while Appellee recommenced it in Michigan.
STATEMENT OF THE CASE1
{¶2} Appellee filed the instant action against Appellants for declaratory judgment
and damages for tortious interference with a contractual and business relationship.
Appellants filed a motion to dismiss or in the alternative to stay the action, arguing a forum
selection clause in the contract between the parties required the action to be filed in
Michigan. The court overruled the motion to dismiss or stay the action. It is from the
August 9, 2018 judgment overruling their motion Appellants prosecute this appeal,
assigning as error:
THE TRIAL COURT IN OHIO ERRED BY NOT ENFORCING A
FORUM-SELECTION CLAUSE STATING THAT, “THE PARTIES AGREE
THAT ANY ACTIONS SHALL BE BROUGHT TO THE COURT OF
APPROPRIATE JURISDICTION IN INGHAM COUNTY, MICHIGAN OR
U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN.
{¶3} As a preliminary matter, we must first determine whether the order under
review is a final appealable order. If an order is not final and appealable, then we do not
1 A rendition of the facts is unnecessary to our resolution of the appeal.
Wood County, Case No. 2018-WD-0070 3
have jurisdiction to review the matter and must dismiss the appeal. See Gen. Acc. Ins.
Co. v. Ins. Co. of N. Am., 44 Ohio St. 3d 17, 20, 540 N.E.2d 266 (1989).
{¶4} To be final and appealable, an order must comply with R.C. 2505.02(B),
which provides, in pertinent part:
(B) An order is a final order that may be reviewed, affirmed, modified,
or reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment.
(3) An order that vacates or sets aside a judgment or grants a new
trial;
(4) An order that grants or denies a provisional remedy and to which
both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the
appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all proceedings,
issues, claims, and parties in the action.
Wood County, Case No. 2018-WD-0070 4
{¶5} The Fifth District Court of Appeals has held a judgment denying a motion to
change venue or in the alternative dismiss an action based on a forum selection clause
in a contract is not a final, appealable order:
The only possible applicable paragraph is paragraph 4, regarding
provisional remedies. “‘Provisional remedy’ means a proceeding ancillary to
an action, including, but not limited to, a proceeding for a preliminary
injunction, attachment, discovery of privileged matter, or suppression of
evidence.” R.C. 2505.02(A)(3). The statutory definition does not specifically
refer to proceedings to transfer venue nor are any of the listed proceedings
akin to a transfer of venue. See Duryee, supra. The basic purpose of R.C.
2505.02(A)(3) in categorizing certain types of preliminary decisions of a trial
court as final, appealable orders is the protection of one party against
irreparable harm by another party during the pendency of the litigation. Id.
We find that a decision by a trial court to deny a request for change of venue
does not involve the same degree of risk of irreparable harm to a party as
the decisions made in the types of actions listed under 2505.02(A)(3). The
types of provisional remedies listed under 2505.02(A)(3) include decisions
that, made preliminarily, could decide all or part of an action or make an
ultimate decision on the merits meaningless or cause other irreparable
harm. For instance, a preliminary injunction could be issued against a high
school football player preventing him from playing football his senior year
based on recruiting violations. The trial court could grant the attachment of
Wood County, Case No. 2018-WD-0070 5
property for which the owner has a ready buyer. Discovery of privileged
material could force a person to divulge highly personal and sensitive
information. If evidence critical to the prosecution of a criminal case is
suppressed, the state could lose any meaningful chance at successful
prosecution of a criminal. The decision to deny a change of venue does not
result in any of the types of irreparable harm just listed. There is an
adequate legal remedy from a decision denying a change of venue, after
final judgment. In other words, it may be expensive to get the cat back in
the bag, if a trial court errs when it denies a change of venue, but it can be
done. Whereas, when the types of decisions listed in 2505.02(A)(3) are
made, the cat is let out of the bag and can never be put back in. Therefore,
denial of a request to change venue is not a final, appealable order. In
accord, Wilson v. Kemp (Nov. 24, 1999), Scioto App. No. 99CA2667,
unreported, 1999 WL 1125111. The Second District Court of Appeals has
also considered whether venue questions are final, appealable orders.
While the Second District Court found that a venue order can qualify as a
provisional remedy because it prevents a judgment in favor of the appealing
party with respect to the venue question, it found that venue decisions were
not final, appealable orders since the party is afforded an effective remedy
by way of appeal after final judgment. Jetter v. Abbott (July 31, 2000),
Montgomery App. No. 17888, unreported (citing State ex rel. Banc One
Corp. v. Walker (1999), 86 Ohio St. 3d 169, 173, 712 N.E.2d 742, venue
orders do not normally affect a substantial right, because appeal after
Wood County, Case No. 2018-WD-0070 6
judgment is an adequate legal remedy). Accordingly, we find that the
December 6, 1999, Judgment Entry is not a final, appealable order.
{¶6} Mansfield Family Restaurant v. CGS Worldwide, Inc., 5th Dist. Richland No.
00-CA-3, 2000 WL 1886226, *2.
{¶7} In finding a judgment which granted a motion to stay an action to allow
refiling in Massachusetts to be a final, appealable order, this Court distinguished the
decision of the Fifth District in Mansfield Family Restaurant as follows:
The adequate, although expensive, remedy envisioned in Mansfield
Family Restaurant is that after final resolution of the case, an Ohio appellate
court could review the trial court's decision not to enforce the forum
selection clause, find that it was error and reverse, thereby allowing the
parties to litigate their dispute again in another state.
The difference between Mansfield Family Restaurant and the case
presently before us is that if Overhead, Inc. cannot appeal now from the trial
court's decision that the dispute must be litigated in Massachusetts, then
after the case is resolved in the Massachusetts court, Overhead, Inc. will
have no forum to turn to which can review the original decision enforcing
the forum selection clause. A Massachusetts appellate court would not have
jurisdiction to review an Ohio court's decision and it would be too late to file
an appeal in the Ohio appellate court since the case in Ohio was not merely
transferred to Massachusetts, but was actually dismissed.
Wood County, Case No. 2018-WD-0070 7
Therefore, we find that under R.C. 2505.02(B)(4) the trial court's
order is final and appealable. The proceeding in the trial court determining
whether the case should be litigated in Ohio or in Massachusetts is ancillary
to the action and thus is a provisional remedy pursuant to R.C.
2505.02(A)(3). Since the order granting the “provisional remedy,” i.e.,
enforcing the forum selection clause, makes a full determination of the issue
and prevents a judgment in favor of appellant on this issue it fulfills R.C.
2505.02(B)(4)(a). Finally, R.C. 2505.02(B)(4)(b) is fulfilled because
appellant would have no remedy through an appeal after the case has been
heard in Massachusetts since there would be no appellate court with
jurisdiction to decide the issue.
{¶8} Overhead, Inc. v. Standen Contracting, 6th Dist. Lucas No. L-01-1397,
2002-Ohio-1191, *3.
{¶9} We find the judgment appealed from in the instant case is not a final,
appealable order, based on the reasoning set forth in Mansfield Family Restaurant, supra.
As this Court noted in Overhead, Inc., supra, when the motion to dismiss or transfer venue
to another state is overruled, the party has an opportunity for review of the order at the
end of the case. Thus the instant case is distinguishable from Overhead, Inc.
Wood County, Case No. 2018-WD-0070 8
{¶10} As we do not have jurisdiction over the appeal, the appeal is dismissed.
HON. WILLIAM B. HOFFMAN
HON. W. SCOTT GWIN
HON. EARLE E. WISE, JR.
By: Hoffman, J.
Gwin, P.J. and
Wise, Earle, J. concur
IN THE COURT OF APPEALS FOR WOOD COUNTY, OHIO
SIXTH APPELLATE DISTRICT
NEW WASTE CONCEPTS, INC., :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
APPELGATE INSULATION LLC, ET AL., : January 29, 2019
:
Defendants-Appellants : Case No. 2018-WD-0070
For the reason stated in our accompanying Opinion, this appeal is dismissed.
Costs assessed to Appellants.
HON. WILLIAM B. HOFFMAN
HON. W. SCOTT GWIN
HON. EARLE E. WISE, JR.