Mynes v. Brooks , 124 Ohio St. 3d 13 ( 2009 )

[Cite as Mynes v. Brooks, 124 Ohio St. 3d 13, 2009-Ohio-5946.]
MYNES ET AL., APPELLEES, v. BROOKS ET AL.; JDG HOME
INSPECTIONS, INC., ET AL., APPELLANTS.
[Cite as Mynes v. Brooks, 124 Ohio St. 3d 13, 2009-Ohio-5946.]
Appellate procedure — Final orders — R.C. 2711.02(C) — Order granting or
denying stay pending arbitration is immediately appealable without
certification pursuant to Civ.R. 54(B).
(No. 2009-0054 — Submitted September 2, 2009 — Decided
November 18, 2009.)
CERTIFIED by the Court of Appeals for Scioto County, No. 07CA3185,
2008-Ohio-5613.
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SYLLABUS OF THE COURT
R.C. 2711.02(C) permits a party to appeal a trial court order that grants or denies
a stay of trial pending arbitration, even when the order makes no
determination pursuant to Civ.R. 54(B).
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MOYER, C.J.
I
{¶ 1} The Fourth District Court of Appeals certified the following issue
pursuant to Section 3(B)(4), Article IV of the Ohio Constitution and App.R. 25:
“whether R.C. 2711.02 orders, which are not applicable to all the parties or
claims, are final appealable orders without Civ.R. 54(B) language.” For the
reasons that follow, we reverse the judgment of the Fourth District Court of
Appeals. An order granting or denying a stay of trial pending arbitration issued
under R.C. 2711.02(B) is a final, appealable order under R.C. 2711.02(C), even
without satisfying the requirements of Civ.R. 54(B).
SUPREME COURT OF OHIO
II
{¶ 2} Timothy and Janeen Mynes, appellees, aver that they purchased a
house that, unbeknownst to them at the time of purchase, contained dangerous
mold and structural defects. The Myneses sued, asserting mainly that persons
involved with the sale of the home had knowingly concealed or negligently failed
to discover and report the defects in the home.
{¶ 3} Among the defendants are appellants, JDG Home Inspections, Inc.,
d.b.a. the HomeTeam Inspection Service, and Tim Gambill, an employee of JDG
(collectively, “the home inspectors”), who had contracted with the Myneses to
perform a presale home inspection. The contract between the Myneses and the
home inspectors contained an arbitration provision.
{¶ 4} The Myneses had originally agreed to a stay of the claims against
the home inspectors pending arbitration, while the case proceeded against the
remaining defendants; the trial court rendered an agreed order to that effect.
However, the Myneses subsequently filed a motion for relief from that order,
which the trial court granted. The trial court issued a new order, declining to stay
the matter and ordering the home inspectors to participate in the lawsuit.
{¶ 5} The home inspectors filed an appeal from the new order, but the
court of appeals dismissed their appeal. The court of appeals held that the order
was “final” under R.C. 2711.02(C) but that it was not a final, appealable order,
because it did not meet the requirements of Civ.R. 54(B). Finding no final,
appealable order, the court of appeals held that it was without jurisdiction to
consider the appeal.
{¶ 6} The court of appeals certified that its holding in this case conflicted
with the decision of the Sixth District Court of Appeals in Stewart v. Shearson
Lehman Bros., Inc. (1992), 71 Ohio App. 3d 305, 593 N.E.2d 403, and the
Eleventh District Court of Appeals in Barnes v. Andover Village Retirement
Community, Ltd., Ashtabula App. No. 2006-A-0039, 2007-Ohio-4112. We
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January Term, 2009
recognized the conflict. Mynes v. Brooks, 120 Ohio St. 3d 1523, 2009-Ohio-614,
901 N.E.2d 243.
III
{¶ 7} During the pendency of this case, we issued an opinion regarding
final, appealable orders under similar facts and a similar statute in Sullivan v.
Anderson Twp., 122 Ohio St. 3d 83, 2009-Ohio-1971, 909 N.E.2d 88. We
conclude that the reasoning of Sullivan applies with equal force to the issue before
us today.
{¶ 8} In Sullivan, we examined R.C. 2744.02(C), which provides: “An
order that denies a political subdivision or an employee of a political subdivision
the benefit of an alleged immunity from liability as provided in this chapter or any
other provision of the law is a final order.” Id. at ¶ 9. In that case, the trial court’s
order denied the township’s motion for judgment on the pleadings on the issue of
political subdivision immunity in a multiparty, multiclaim lawsuit. That order did
not finally determine all claims, nor did it include the certification required by
Civ.R. 54(B). Id. Nevertheless, we reasoned that the “general rules regarding
final, appealable orders in multiparty and/or multiclaim cases” that “involve the
tandem of R.C. 2505.02(B)[1] for substance and Civ.R. 54(B)[2] for procedure” did
1. {¶ a} R.C. 2505.02(B) provides:
{¶ b} “(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:
{¶ c} “(1) An order that affects a substantial right in an action that in effect determines
the action and prevents a judgment;
{¶ d} “(2) An order that affects a substantial right made in a special proceeding or upon a
summary application in an action after judgment;
{¶ e} “(3) An order that vacates or sets aside a judgment or grants a new trial;
{¶ f} “(4) An order that grants or denies a provisional remedy and to which both of the
following apply:
{¶ g} “(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.
{¶ h} “(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.
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SUPREME COURT OF OHIO
not apply to the order at issue. (Footnotes added.) Id. at ¶ 10, citing Noble v.
Colwell (1989), 44 Ohio St. 3d 92, 97, 540 N.E.2d 1381.
{¶ 9} Civ.R. 54(B) certification ordinarily serves to confirm that the trial
court has determined that its order should be appealable. The trial court makes
this determination “in order to further the efficient administration of justice and to
avoid piecemeal litigation or injustice attributable to delayed appeals.” Id. at ¶ 11,
citing Wisintainer v. Elcen Power Strut Co. (1993), 67 Ohio St. 3d 352, 356-357,
617 N.E.2d 1136; Noble, 44 Ohio St. 3d at 96, 540 N.E.2d 1381.
{¶ 10} But in Sullivan, we held that such a determination by the trial court
was not necessary; the General Assembly had already made the determination that
such orders were immediately appealable by indicating, in R.C. 2744.02(C), that
the orders are “final.” Id., 122 Ohio St. 3d 83, 2009-Ohio-1971, 909 N.E.2d 88, at
¶12.
{¶ i} “(5) An order that determines that an action may or may not be maintained as a
class action;
{¶ j} “(6) An order determining the constitutionality of any changes to the Revised Code
made by Am. Sub. S.B. 281 of the 124th general assembly, including the amendment of sections
1751.67, 2117.06, 2305.11, 2305.15, 2305.234, 2317.02, 2317.54, 2323.56, 2711.21, 2711.22,
2711.23, 2711.24, 2743.02, 2743.43, 2919.16, 3923.63, 3923.64, 4705.15, and 5111.018, and the
enactment of sections 2305.113, 2323.41, 2323.43, and 2323.55 of the Revised Code or any
changes made by Sub. S.B. 80 of the 125th general assembly, including the amendment of
sections 2125.02, 2305.10, 2305.131, 2315.18, 2315.19, and 2315.21 of the Revised Code.
{¶ k} “(7) An order in an appropriation proceeding that may be appealed pursuant to
division (B)(3) of section 163.09 of the Revised Code.”
2. {¶ a} Civ.R. 54(B) provides:
{¶ b} “When more than one claim for relief is presented in an action whether as a claim,
counterclaim, cross-claim, or third-party claim, and whether arising out of the same or separate
transactions, or when multiple parties are involved, the court may enter final judgment as to one or
more but fewer than all of the claims or parties only upon an express determination that there is no
just reason for delay. In the absence of a determination that there is no just reason for delay, any
order or other form of decision, however designated, which adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of
the claims or parties, and the order or other form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims and the rights and liabilities of all the
parties.”
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January Term, 2009
{¶ 11} We find Sullivan controlling in this case. Like Sullivan, this action
involves multiple parties and claims, and the order did not contain the Civ.R.
54(B) certification. And, as in Sullivan, the order in this case was a final,
appealable order according to statute, even without Civ.R. 54(B) certification.
{¶ 12} R.C. 2711.02(C) provides: “[A]n order * * * that grants or denies a
stay of a trial of any action pending arbitration * * * is a final order and may be
reviewed, affirmed, modified, or reversed on appeal pursuant to the Rules of
Appellate Procedure and, to the extent not in conflict with those rules, Chapter
2505. of the Revised Code.” Just as with the statute in Sullivan, the General
Assembly has already determined that orders under the ambit of R.C. 2711.02(C)
are final and appealable. Therefore, there is no need for the trial court to
determine whether to certify the order for appeal.
IV
{¶ 13} R.C. 2711.02(C) permits a party to appeal a trial court order that
grants or denies a stay of trial pending arbitration, even when the order makes no
determination pursuant to Civ.R. 54(B). Therefore, we answer the certified
question in the affirmative and reverse the judgment of the court of appeals. The
court of appeals decided this case on jurisdictional grounds and declined to
address the merits of appellant’s assignment of error. Therefore, this cause is
remanded to the court of appeals for consideration of the merits.
Judgment reversed
and cause remanded.
LUNDBERG STRATTON, O’CONNOR, and CUPP, JJ., concur.
PFEIFER and LANZINGER, JJ., dissent.
O’DONNELL, J., dissents and would affirm the judgment of the court of
appeals.
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LANZINGER, J., dissenting.
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SUPREME COURT OF OHIO
{¶ 14} For the reasons expressed in my dissent in Sullivan v. Anderson
Twp., 122 Ohio St. 3d 83, 2009-Ohio-1971, 909 N.E.2d 88, I again respectfully
dissent. The trial court has been given authority under Civ.R. 54(B) to decide
whether to render final orders appealable in multiparty litigation; this authority is
not affected by R.C. 2711.02(C). I would answer the certified question in the
negative and would affirm the decision of the court of appeals.
PFEIFER, J., concurs in the foregoing opinion.
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Madison & Rosan, L.L.P., and Kristin E. Rosan, for appellees.
Scott L. Braum & Assoc., Ltd., and Scott L. Braum, for appellants.
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