dissenting.
{¶ 47} This case features intriguing legal issues within the context of a tragic set of circumstances. But even when it is “tempting to us to consider” important legal questions, we must decline to do so when “the issue being appealed to us does not emanate from an order which is final and appealable.” N. Canton v. Hutchinson (1996), 75 Ohio St.3d 112, 114, 661 N.E.2d 1000. Because there was never a final appealable order rendered by the trial court in this case, this court is without jurisdiction to decide the merits of the cause. I therefore respectfully dissent.
{¶ 48} An order is not final and appealable unless it falls within one of the categories of orders described in R.C. 2505.02. See Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64, syllabus. It is well established that the orders appealed by Reynoldsburg and Truro Township to the court of appeals in this case — orders denying their respective summary-judgment motions — do not generally constitute final appealable orders under R.C. 2505.02. See, e.g., Stevens v. Ackman (2001), 91 Ohio St.3d 182, 186, 743 N.E.2d 901; Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, 90, 554 N.E.2d 1292. In this case, however, the court of appeals found the existence of final appealable orders because of what it described as the parties’ “high-low” settlement agreement. Because the parties had “determined all issues before the trial court” by way of settlement, the court of appeals found that the entire action had been determined, effectively converting the trial court’s denial of summary judgment into a final appealable order.
{¶ 49} Although not citing it expressly, the court of appeals apparently relied upon R.C. 2505.02(B)(1) to find that the trial court’s order was final and appealable. This provision defines as “final” an order that “affects a substantial right in an action that in effect determines the action and prevents a judgment.” The court of appeals made no express determination concerning the existence of these three factors. See Stewart v. Midwestern Indemn. Co. (1989), 45 Ohio St.3d 124, 126, 543 N.E.2d 1200 (to be a final appealable order under this definition, the order must affect a substantial right, determine the action, and *476prevent a judgment). But because the parties’ settlement amount depended upon the way that the trial court ruled on the immunity issues, the court of appeals found that the orders denying summary judgment fit within R.C. 2505.02(B)(1) because they affected a substantial right (i.e., the immunity of Reynoldsburg and Truro Township) and effectively determined the action in Ryll’s favor (i.e., the order “decided” that the city and township would pay the larger settlement amounts). The court of appeals’ rationale is flawed in at least three respects.
{¶ 50} First, the court of appeals essentially allowed the parties to create a final appealable order by way of settlement. There is no authority for the proposition that parties to an action may convert an otherwise interlocutory order into a “final order” under R.C. 2505.02. Indeed, this court has rejected attempts by litigants and courts to create a final appealable order from a nonappealable interlocutory order. See Noble v. Colwell (1989), 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (trial court’s use of Civ.R. 54[B] language does not turn an interlocutory order into a final appealable order); State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23, 24, 37 O.O.2d 358, 222 N.E.2d 312 (“Mandamus cannot be used * * * [to] create an appeal from an order which is not a final order”). If this court endorses the practice of converting nonappealable interlocutory orders into final appealable ones, it should explain why, when, and how that may occur under our substantive and procedural law rather than approving of it sub silentio in this case.
{¶ 51} Second, the court of appeals’ rationale relies on an unduly expansive interpretation of the language in R.C. 2505.02(B)(1) requiring that a final order be one “that in effect determines the action.” The court of appeals decided that the trial court’s denial of summary judgment determined the action simply because of the parties’ contingent settlement arrangement. But “in effect determines the action” refers to the nature of the order itself, without reference to any settlement by the parties. See Legg v. Fuchs (2000), 140 Ohio App.3d 223, 227, 746 N.E.2d 1195 (“the relevant inquiry is whether the [order] adjudicated all the issues”); cf. Yonkings v. Wilkinson (1999), 86 Ohio St.3d 225, 229, 714 N.E.2d 394 (observing that the order at issue “determined the action because it answered the only question presented by the action”). In this case, the trial court’s order simply denied the defendants’ motions for summary judgment, finding that neither defendant was entitled to immunity and that there remained genuine factual issues for the parties to litigate. There is nothing about these orders that “determines” the action; indeed, a trial court denies summary judgment because there remain undetermined issues that preclude judgment as a matter of law. See Civ.R. 56(C).
Karr & Sherman Co., L.P.A., Keith M. Karr, Robert P. Sherman and Suzanne E. Kelly, for appellant. Gallagher, Gams, Pryor & Littrell and Timothy J. Ryan, for appellee Truro Township. Law Offices of Alan Wayne Sheppard, Alan Wayne Sheppard and Scyld D. Anderson, for appellee city of Reynoldsburg. Boyk & Crossmock, L.L.C., and Steven L. Crossmock, urging reversal for amicus curiae Ohio Academy of Trial Lawyers.{¶ 52} Finally, even if I could agree with the court of appeals that the trial court’s denial of summary judgment “determined the action,” the court of appeals’ finding of final appealability remains incorrect. The court of appeals failed to explain why the trial court’s order prevented a judgment within the meaning of R.C. 2505.02(B)(1). There is nothing about the denial of a summary-judgment motion that prevents a judgment. See Celebrezze, 51 Ohio St.3d at 90, 554 N.E.2d 1292. And nothing in the nature of the parties’ settlement agreement changes this legal truism. Indeed, if the court of appeals had properly dismissed the defendants’ appeal, the matter would have remained pending until there had been a judgment, whether a judgment of dismissal or a judgment in favor of one of the parties after further proceedings in the trial court.
{¶ 53} Because the trial court’s order denying summary judgment was not a final appealable order, the court of appeals did not have jurisdiction to entertain the merits of the appeal before it. Stevens, 91 Ohio St.3d at 186, 743 N.E.2d 901; see, also, Section 3(B)(2), Article IV, Ohio Constitution. And because the court of appeals lacked jurisdiction, we are likewise without jurisdiction to reach the merits of the cause. Stevens, 91 Ohio St.3d at 195-196, 743 N.E.2d 901. I would therefore vacate the judgment of the court of appeals, dismiss the appeal, and remand this cause to the trial court for further proceedings.
Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing dissenting opinion.