Stewart v. Midwestern Indemnity Co.

Wright, J.,

dissenting. I believe the majority is mistaken as to its analysis of what is and what is not a final appealable order in the context of this case. Because I believe that Judge Gillie’s order of July 25, 1987 is ap-pealable, I must respectfully dissent.

I

The term “final order” is defined in R.C. 2505.02 as:

“An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. * * *”

Thus under R.C. 2505.02 there are three categories of final orders: (1) those that affect a substantial right, determine an action and prevent a judgment, (2) those that affect a substantial right and are made in a special proceeding or on summary application after judgment, and (3) those that set aside a judgment and grant a new trial. In this case, Judge Gillie’s order set aside the Arbitration Award and Decision of February 9, 1987, and directed the parties to select new arbitrators and proceed to a new arbitration. I agree with the majority’s con-*129elusion that this order does not determine the action and prevent a judgment. Additionally, the order clearly does not set aside a judgment and grant a new trial. However, in my view the order affects a substantial right and was made in a special proceeding, and for that reason qualifies as a final order.

The February 9, 1987 arbitration decision in the instant case awarded Stewart $45,000. Evidently of the opinion that the award was inadequate, Stewart appealed the award to the Court of Common Pleas of Franklin County. The trial court vacated the judgment of the arbitration panel. The effect of vacating the award is a change in Midwestern’s liability on this claim from a set amount of $45,000 to a potentially much higher sum. Obviously the trial court’s order affected a substantial right of Midwestern.

Regarding whether this order was made in a special proceeding, we should follow our recent decision in General Acc. Ins. Co. v. Insurance Co. of North America (1989), 44 Ohio St. 3d 17, 540 N.E. 2d 266, paragraph two of the syllabus, wherein we held that “[a] declaratory judgment action is a special proceeding pursuant to R.C. 2505.02 and, therefore, an order entered therein which affects a substantial right is a final appealable order.” In General Acc. Ins. Co. we noted:

“Statutory provision for declaratory judgments is found in R.C. Title 27, ‘Courts — General Provisions — Special Remedies. ’ (Emphasis added.) R.C. Chapter 2721, ‘Declaratory Judgments,’ provides a complete statutory scheme for obtaining declaratory relief. * * *.” Id. at 22, 540 N.E. 2d at 271.

In my view a similar analysis should prevail in the instant case. R.C. Chapter 2711, also part of R.C. Title 27, Special Remedies, provides a complete statutory scheme for obtaining relief pursuant to arbitration. Provision is made for the staying of court proceedings pending arbitration, R.C. 2711.02, for the enforcement of arbitration agreements, R.C. 2711.03, and for vacation or modification of an arbitration award under certain circumstances, R.C. 2711.10 and 2711.11. Moreover, the right to appeal court orders such as the one at issue in this case is specifically granted. R.C. 2711.15 provides:

“An appeal may be taken from an order confirming, modifying, correcting, or vacating an award made in an arbitration proceeding or from judgment entered upon an award.” (Emphasis added.)

To me it is anomalous to hold that Midwestern has a right to appeal this order, a holding compelled by the clear language of R.C. 2711.15, but then find that there is no court with jurisdiction to hear this appeal because it is not from a “final order.” While purporting to read R.C. 2505.02 and 2711.15 in pari materia, the majority in effect renders R.C. 2711.15 a complete nullity, for any “final order” under R.C. 2505.02 is appealable, pursuant to R.C. 2505.03, regardless of whether R.C. 2711.15 says an appeal may be taken therefrom. In my view the majority’s analysis goes astray by focusing solely on the language of R.C. 2505.02 without considering the General Assembly’s obvious intent in creating R.C. Chapter 2711, and specifically R.C. 2711.15. I would hold that an order pursuant to R.C. Chapter 2711 confirming, modifying, correcting, or vacating an arbitration award is an order made in a special proceeding, and that if such order affects a substantial right it is a final appealable order under R.C. 2505.02. See Gerl *130Constr. Co. v. Medina Cty. Bd. of Commrs. (1985), 24 Ohio App. 3d 59, 24 OBR 113, 493 N.E. 2d 270 (holding that R.C. Chapter 2711 is a “special statutory proceeding” for purposes of Civ. R. 1[C]).

I believe this conclusion may also follow from the balancing approach set forth in Amato v. General Motors Corp. (1981), 67 Ohio St. 2d 253, 21 O.O. 3d 158, 423 N.E. 2d 452. In Amato, we held that “[a]n order of a trial court, pursuant to Civ. R. 23(C)(1), determining that an action may be maintained as a class action is a final, appealable order, pursuant to R.C. 2505.02.” Id. at syllabus. Regarding the term “special proceeding” as used in R.C. 2505.02, we explained:

“[WJhether an order is made in a special proceeding is resolved through a balancing test. This test weighs the harm to the ‘prompt and orderly disposition of litigation,’ and the consequent waste of judicial resources, resulting from the allowance of an appeal, with the need for immediate review because appeal after final judgment is not practicable.” Id. at 258, 21 O.O. 3d at 161, 423 N.E. 2d at 456.

Under this balancing test I must conclude that this order is made in a special proceeding. Granted, this particular order might be reviewable at some later point in this litigation. However, that fact alone should not end the inquiry, as the Amato test also requires consideration of society’s interest in the “prompt and orderly disposition of litigation” and the potential “waste of judicial resources.” To compel the parties to proceed to a second ¿arbitration will, of course, hinder the prompt and orderly disposition of this case, especially where later review might reveal that the second arbitration was completely unnecessary because the first award was wrongfully vacated. A determination at this point in time whether a second arbitration is appropriate would be in everyone’s best interest.

II

Appellee also argues that the order at issue is not a final appealable order because it did not include an express determination that there is “no just reason for delay.” In its denial of Midwestern’s motion to reconsider the dismissal of its appeal the court of appeals indicated that its decision was based in part on Midwestern’s failure to respond to Stewart’s Civ. R. 54(B) argument. Civ. R. 54(B) has absolutely no application in this case.

Civ. R. 54(B) provides:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, 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 such determination, 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.”

Rule 54(B) is applicable in a multi-claim situation in which the court attempts to render a final judgment on one of the claims while leaving others to be litigated, or in a multi-party situation where the court attempts to render final judgment for or against one of the parties while leaving the *131others to litigate. See Pokorny v. Tilby Development Co. (1977), 52 Ohio St. 2d 183, 185-186, 6 O.O. 3d 416, 417, 370 N.E. 2d 738, 739. An order such as that at issue here, vacating an arbitration award, falls into neither of these categories. Thus, I think the “no just reason for delay” language is completely unnecessary, as Rule 54(B) is inapplicable. The fact that claims remain unresolved is irrelevant. Thus, I find troubling the majority’s suggestion that the absence of Civ. R. 54(B) language is of some significance.

Indeed, if Civ. R. 54(B) applies here it must apply to every order issued before all claims among all parties are disposed of, i.e., every interlocutory order. Obviously this is not the intent of Civ. R. 54(B), and this court has never so held. Indeed, in Amato, the court expressly held that Civ. R. 54(B) is inapplicable despite the fact that all the claims in the case were as yet unresolved when the trial court ordered that the action may be maintained as a class action. Id. at 256, 21 0.0. 3d at 160, 423 N.E. 2d at 454-455. In other cases involving interlocutory orders the court has found the orders final and appealable despite the fact that claims in the case were as yet unresolved and the court had not expressly determined that there was no just reason for delay. See, e.g., Russell v. Mercy Hosp. (1984), 15 Ohio St. 3d 37, 15 OBR 136, 472 N.E. 2d 695 (order granting motion to disqualify counsel).

For the foregoing reasons, I would find that the trial court’s order of June 25,1987 is a final appealable order as a matter of law and fact. Accordingly, I would reverse the decision of the court of appeals and remand this cause to that court for review on the merits.