[Cite as DiGiorgio v. Cleveland, 196 Ohio App.3d 575, 2011-Ohio-5824.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
EN BANC
No. 95945
DiGiorgio et al.,
Appellees,
v.
City of Cleveland et al.,
Appellants.
DECISION EN BANC
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-700625
BEFORE: En Banc Court
RELEASED AND JOURNALIZED: November 10, 2011
ATTORNEYS:
Spangenberg, Shibley & Liber, L.L.P., William B. Eadie, and Rhonda Baker Debevec, for
appellees.
Barbara A. Langhenry, Interim Director of Law, and Awatef Assad and William F. Gibson,
Assistant Directors of Law, for appellants city of Cleveland, Michael McGrath, James Gibian,
Patrick J. McLain, and Michael A. Lawrence.
Jones Day and Peter G. Hilbert, for Durraymus Gillis.
Law Offices of Irina Vinogradsky and Irina Vinogradsky, for Dontez D. Hairston.
Ronald Robinson, for Davonte Johnson.
Ulmer & Berne, L.L.P., and Bari E. Goggins, for Devonta McIntyre.
KATHLEEN ANN KEOUGH, Judge.
{¶ 1} Pursuant to App.R. 26 and Loc.App.R. 26, the en banc court determined that a
conflict existed between decisions in this district on the question whether the unexplained denial of a
motion to dismiss and/or for judgment on the pleadings on sovereign-immunity grounds was a final,
appealable order. Compare Young v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities,
Cuyahoga App. No. 95955, 2011-Ohio-2291; Wade v. Stewart, Cuyahoga App. No. 93405,
2010-Ohio-164; and Grassia v. Cleveland, Cuyahoga App. No. 91013, 2008-Ohio-3134, with Fink v.
Twentieth Century Homes, Inc., Cuyahoga App. No. 94519, 2010-Ohio-5486; and Parsons v.
Greater Cleveland Regional Transit Auth., Cuyahoga App. No. 93523, 2010-Ohio-266. We
undertook en banc consideration of this matter sua sponte and convened an en banc conference in
accordance with McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896
N.E.2d 672.
{¶ 2} We find that the trial court’s decision in this matter is a final, appealable order
pursuant to the Ohio Supreme Court’s decision in Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-
4839, 873 N.E.2d 878. Therefore, the panel will determine the merits of this appeal.
{¶ 3} The city of Cleveland, its police chief, a police sergeant, and two police officers
(collectively, the “municipal defendants”) appeal from the denial of their motion to dismiss and/or
for judgment on the pleadings as to all claims against them. Below, they argued that the complaint’s
allegations against them were insufficient and that they were immune from liability under R.C.
Chapter 2744. The trial court denied their motion without opinion. The issue before us is whether
this ruling is an appealable order.
{¶ 4} “It is well-established that an order must be final before it can be reviewed by an
appellate court. If an order is not final, then an appellate court has no jurisdiction.” Gen. Acc. Ins.
Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266. Generally, an order denying
a motion to dismiss is not a final, appealable order. Polikoff v. Adam (1993), 67 Ohio St.3d 100,
103, 616 N.E.2d 213. However, under R.C. 2744.02(C), “[a]n 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.”
{¶ 5} In Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, the Ohio
Supreme Court held that under R.C. 2744.02(C), a judgment denying a motion for summary
judgment in which a political subdivision seeks immunity protection under R.C. Chapter 2744 is a
final, appealable order. Although decided in the context of a motion for summary judgment, the
Hubbell court made clear that its holding was not limited to motions for summary judgment, stating:
{¶ 6} “[T]he use of the words ‘benefit’ and ‘alleged’ illustrates that the scope of this
provision is not limited to orders delineating a ‘final’ denial of immunity. R.C. 2744.02(C) defines
as final a denial of the ‘benefit’ of an ‘alleged’ immunity, not merely a denial of immunity.
Therefore, the plain language of R.C. 2744.02(C) does not require a final denial of immunity before
the political subdivision has the right to an interlocutory appeal.
{¶ 7} “* * *
{¶ 8} “[W]e hold that when a trial court denies a motion in which a political subdivision or
its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged
immunity and thus is a final, appealable order pursuant to R.C. 2744.02(C).” Id. at ¶ 12, 27.
{¶ 9} The Hubbell court explained the policy reasons for its broad interpretation of R.C.
2744.02(C) as follows:
{¶ 10} “‘As the General Assembly envisioned, the determination of immunity [should] be
made prior to investing the time, effort, and expense of the courts, attorneys, parties, and witnesses
* * *.’” Id. at ¶ 26, quoting Burger v. Cleveland Hts. (1999), 87 Ohio St.3d 188, 199-200, 718
N.E.2d 912.
{¶ 11} Since Hubbell was decided, this court and others have repeatedly held that a trial
court’s judgment denying a motion for judgment on the pleadings or motion to dismiss when a
political subdivision has asserted immunity is a final, appealable order. See, e.g., Rucker v.
Newburgh Hts., Cuyahoga App. No. 89487, 2008-Ohio-910 (judgment denying city’s Civ.R. 12(C)
motion for judgment on the pleadings was a final, appealable order pursuant to Hubbell); Pearson v.
Warrensville Hts. City Schools, Cuyahoga App. No. 88527, 2008-Ohio-1102 (judgment denying
municipal schools’ motion for judgment on the pleadings was a final, appealable order pursuant to
Hubbell); Stevenson v. ABM, Medina App. No. 07CA0009-M, 2008-Ohio-3214 (noting that Ohio
Supreme Court reversed appellate court’s dismissal of an appeal for lack of a final, appealable order
on the authority of Hubbell and remanded for appellate court to conduct de novo review of trial
court’s denial of municipality’s Civ.R. 12(B)(6) motion for judgment on the pleadings based on
sovereign immunity); Slonsky v. J.W. Didado Elec., Inc., Summit App. No. 24228, 2008-Ohio-6791
(holding, on authority of Hubbell, that trial court erred in finding that defense of sovereign immunity
cannot be raised in a motion to dismiss); Parsons v. Greater Cleveland Regional Transit Auth.,
Cuyahoga App. No. 93523, 2010-Ohio-266 (trial court’s judgment denying public transit authority’s
Civ.R. 12(B)(6) motion to dismiss because of statutory immunity was a final, appealable order
pursuant to Hubbell); Fink v. Twentieth Century Homes, Inc., Cuyahoga App. No. 94519, 2010-
Ohio-5486 (trial court’s judgment denying city’s Civ.R. 12(B)(6) motion to dismiss was a final,
appealable order on the authority of Hubbell); Summerville v. Forest Park, 128 Ohio St.3d 221,
2010-Ohio-6280, 943 N.E.2d 522 (citing with approval Paul C. Harger Trust v. Morrow Cty.
Regional Planning Comm., Morrow App. No. 03-CA-19, 2004-Ohio-6643, which held that trial
court’s denial of municipal defendant’s motion for judgment on the pleadings was final and
appealable pursuant to R.C. 2744.02(C)).
{¶ 12} Appellees argue, in reliance on State Auto. Mut. Ins. Co. v. Titanium Metals Corp.,
108 Ohio St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1199, that the trial court’s judgment in this case is
not a final, appealable order because the trial court denied the motion to dismiss without opinion and
offered no explanation for its decision. In Titanium Metals, the Ohio Supreme Court considered an
appeal in which the trial court denied a motion to dismiss based on immunity without opinion. The
Supreme Court found that there was no final, appealable order because the trial court had not
provided an explanation for its decision. The court reasoned that the trial court had “made no
determination as to whether immunity applied, [or] whether there was an exception to immunity”
and hence had not disposed of the case. Id. at ¶ 10.
{¶ 13} This court adopted the reasoning of Titanium Metals in Grassia, 2008-Ohio-3134,
and dismissed the city’s appeal of the trial court’s denial of its Civ.R. 12(B)(6) motion for judgment
on the pleadings for lack of a final, appealable order, because the trial court denied the motion
without explanation. See also Vaughn v. Cleveland Mun. School Dist., Cuyahoga App. No. 86848,
2006-Ohio-2572 (holding that Titanium Metals compelled dismissal of trial court’s order denying
motion for summary judgment that asserted political immunity because trial court denied motion
without explanation or opinion).
{¶ 14} But, as the dissent in Hubbell makes clear, the Ohio Supreme Court “distance[d]
itself” from Titanium Metals in Hubbell and held that “[d]enials of Civ.R. 12(B)(6) motions and
motions for a directed verdict, as well as denials of multiple motions for summary judgment, can
now be immediately appealed.” Id. at ¶ 33, 39 (Pfeifer, J., dissenting). And since Grassia, this court
has recognized that trial court orders denying motions to dismiss asserting immunity, even where the
court has not offered an explanation for its decision, are final, appealable orders under the authority
of Hubbell. See, e.g., Parsons, 2010-Ohio-266, at ¶ 5; Wade, 2010-Ohio-164, at ¶ 21 (S. Gallagher,
J., concurring in judgment only) (“[T]he denial of a motion to dismiss does constitute a final,
appealable order under R.C. 2744.02(C)”).1
{¶ 15} Recently, in Young, 2011-Ohio-2291, also cited by appellees, this court dismissed an
appeal of a trial court’s judgment denying a governmental entity’s motion for judgment on the
pleadings asserting immunity. Relying on Titanium Metals, this court held that the appeal was not
final because the trial court did not set forth the reasons for its decision in its journal entry. The Ohio
Supreme Court declined jurisdiction to hear the governmental entity’s appeal. Young v. Cuyahoga
Cty. Bd. of Mental Retardation & Dev. Disabilities, 129 Ohio St.3d 1504, 2011-Ohio-5358, 955
N.E.2d 386. Nevertheless, the en banc court is convinced, on the authority of Hubbell and cases
cited above, that the denial of a motion to dismiss is a final, appealable order under R.C. 2744.02(C),
even when the trial court does not explain the reasons for its decision. Accordingly, we overrule
Young, Wade, and Grassia and hold that the trial court’s order denying the municipal defendants’
motion to dismiss is a final, appealable order under R.C. 2744.02(C), even if the order does not
explain the basis for the court’s decision.
{¶ 16} Our en banc proceeding was prompted only by the question whether the trial court’s
order was final and appealable. Consequently, we will not address the other issues in this case en
banc, but leave those issues to the merit panel’s judgment.
1
Appellees’ reliance on Wade is misplaced. In Wade, the court specifically found that R.C. 2744.02(C) did not
apply as the alleged injuries occurred between 2001 and 2002, prior to the effective date of the statute. Id., 2010-Ohio-
164, at ¶ 7.
Judgment accordingly.
KILBANE, A.J., and BLACKMON, CELEBREZZE, E. GALLAGHER, S. GALLAGHER, JONES,
ROCCO, STEWART and SWEENEY, JJ., concur.
COONEY, J., concurs in part and dissents in part with separate opinion.
BOYLE, J., concurs with the separate opinion of Judge Cooney.
COLLEEN CONWAY COONEY, Judge, concurring in part and dissenting in part.
{¶ 17} I concur in the overruling of Young v. Cuyahoga Cty. Bd. of Mental Retardation &
Dev. Disabilities, 129 Ohio St.3d 1504, 2011-Ohio-5358, 955 N.E.2d 386, but dissent from the
overruling of Wade v. Stewart, Cuyahoga App. No. 93405, 2010-Ohio-164, and Grassia v.
Cleveland, Cuyahoga App. No. 93405, 2008-Ohio-3134, which I find to be valid pronouncements of
the law in their procedural postures at the time they were decided. The majority correctly notes the
critical distinction in Wade in footnote 1, i.e., that the injury in Wade predated the effective date of
R.C. 2744.02(C). Therefore, reliance on Wade and overruling Wade are misplaced. Moreover, this
court denied the opportunity to en banc Wade.
{¶ 18} This court noted in Young that the complaint was filed in April 2008 and the motion
to dismiss denied in November 2010. Therefore, I would find that the record should have been
thoroughly developed in the two years the case was pending. The Hubbell court specifically
distinguished Titanium Metals for its procedural posture in which there was no record or opinion.
Hubbell at ¶ 18.
{¶ 19} Grassia involved an intentional-tort claim filed in October 2007. The trial court
denied the city’s motion to dismiss in January 2008. Thus, the record had not been developed in
those few months. We distinguished Hubbell in footnote 1 as follows:
{¶ 20} “In Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, the
Supreme Court held that the denial of a governmental entity’s motion for summary judgment on the
issue of sovereign immunity due to the existence of genuine issues of material fact is a final
appealable order under R.C. 2744.02(C). Id. at ¶ 27. The Court noted, however, that its opinion in
[Titanium Metals] was distinguishable from Hubbell. Specifically, the court noted the different
procedural postures of the cases: [Titanium Metals] was not decided under R.C. 2744.02(C), but
‘[r]ather, relying on traditional concepts, [the Court] held that there was no final, appealable order in
the current posture of the case and sent the case back to the trial court.’ Id. at ¶ 19. In contrast, in
Hubbell, ‘the record contain[ed] evidence upon which the trial court denied the motion for summary
judgment, so as to deny Xenia “the benefit of an alleged immunity from liability.” ’ Id. at ¶20,
quoting R.C. 2744.02(C).”
{¶ 21} In Grassia, we concluded that “[b]ecause the [trial] court denied the City’s motion in
this case without elaboration and there is, therefore, no record on the issue of immunity, * * * there is
no final appealable order and we must dismiss.” (Emphasis added.) Id. at ¶11.
{¶ 22} I have no idea what is the procedural posture presented in DiGiorgio because the en
banc opinion makes no mention of whether the record below is developed. Therefore, I agree that
Young should be overruled, but not Wade or Grassia, which can be easily distinguished.