Clapper v. Little Sandy Creek Ruritan Club, Inc.

[Cite as Clapper v. Little Sandy Creek Ruritan Club, Inc., 2022-Ohio-1920.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

RICHARD CLAPPER, et al JUDGES:

Hon. Earle E. Wise, Jr., P. J.

Plaintiffs-Appellees Hon. John W. Wise, J.

Hon. Patricia A. Delaney, J.

-vs-

Case No. 2021 CA 00095

THE LITTLE SANDY CREEK RURITAN

CLUB, INC., et al.

OPINION

Defendants-Appellants

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common

Pleas, Case No. 2020 CV 00410

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: June 6, 2022

APPEARANCES:

For Plaintiffs-Appellees For Defendants-Appellants

DAVID E. BUTZ JOSH L. SCHOENBERGER

ZACHARY M. SOEHNLEN SUSAN S. R. PETRO

KRUGLIAK, WILKINS, GRIFFITHS WILLIAMS & SCHOENBERGER CO.

& DOUGHERTY CO., LPA 338 South High Street, 2nd Floor

4775 Munson Street, NW Columbus, Ohio 43215

P. O. Box 36963

Canton, Ohio 44735-6963 GARY L. GRUBLER

GRANCE INSURANCE

585 South Front Street, Suite 210

Columbus, Ohio 43215

Stark County, Case No. 2021 CA 00095 2

Wise, John, J.

{¶1} Appellants The Little Sandy Creek Ruritan Club and Richard Lotze appeal

the August 8, 2021, decision of the Stark County Court of Common Pleas denying their

motion for summary judgment.

STATEMENT OF THE FACTS

{¶2} For purposes of this Opinion, the relevant facts and procedural history are

as follows:

{¶3} Appellant The Little Sandy Creek Ruritan Club, Inc. owns the property

located at 11428 Bowling St., the premises at issue in this case. Little Sandy is a non-

profit organization which provides free medical equipment to persons in need in the

community. It stores the medical equipment at the building located on the property. Both

Appellee Richard Clapper and Appellant Richard Lotze were members of and volunteers

for Little Sandy at all relevant periods of time, and each had keys to the building with the

ability to access it any time without permission. Leading up to the building is an outside

walkway which volunteers use to transport hospital equipment in and out of the building.

Clapper was a member of Little Sandy's Board of Directors from 2015-2017, holding

offices of Vice President, President, and Past President during those years. The Board of

Directors are responsible for the safety of the premises.

{¶4} Lotze had been in charge of maintenance at Little Sandy for approximately

ten (10) years prior to the time of the incident at issue. Lotze had the authority to perform

repairs and building maintenance on behalf of Little Sandy without first seeking approval

from club members of the Board. In the past, Lotze had performed other repairs to the

walkway, roof, and electrical system. Lotze is not a licensed electrician, nor had Little

Stark County, Case No. 2021 CA 00095 3

Sandy applied for a building permit to perform the aforementioned past repairs. Appellees

state that other than one time in 1990s when they hired an electrician, Little Sandy would

always perform necessary repairs internally in order to save money.

{¶5} Sometime in 2016, while walking on the walkway, Lotze noticed a board

had become loose. When he stepped on that specific board, it moved. Lotze went home

to pick up the tools he needed and then returned and screwed six screws into the loose

board, a repair that took approximately fifteen minutes. He then stepped on the board to

make sure it was secure. Lotze admits that he did not inspect underneath the board, nor

did he seek professional assistance with fixing it.

{¶6} On April 7, 2018, Clapper was asked to assist with moving some medical

equipment at the building. While moving the equipment out of the building, Clapper

stepped onto the same board which Lotze had repaired two years prior. The board broke,

and Clapper fell through, sustaining injuries.

{¶7} On February 25, 2020, Appellees Richard Clapper and Florence Clapper

filed a Complaint against Appellants The Little Sandy Ruritan Club, Inc. and Richard Lotze

alleging that they sustained damages in and/or as a result of Mr. Clapper’s fall. The

Clappers asserted a premises liability theory against Little Sandy and ordinary negligence

against Richard Lotze. Specifically, as against Appellant Richard Lotze, the Clappers

alleged that he "negligently designed and constructed" the Walkway. (Complaint, ¶7).

{¶8} On October 28, 2020, the Clappers filed a Motion for Partial Summary

Judgment, seeking a determination that Little Sandy and Mr. Lotze were liable to the Clappers

as a matter of law for their alleged negligence in causing or contributing to Mr. Clapper's fall

and injury.

Stark County, Case No. 2021 CA 00095 4

{¶9} On November 9, 2020, Little Sandy and Mr. Lotze filed a Motion for Summary

Judgment, arguing, inter alia, that Mr. Lotze was immune from suit under the federal

Volunteer Protection Act, 42 U.S.C. 14501, et seq.

{¶10} By Judgment Entry filed August 8, 2021, the trial court denied both Civ.R. 56

Motions, finding that Lotze was not immune because "it is possible that a reasonable jury

could find Lotze's conduct grossly negligent, reckless, or conducted with conscious disregard

for others' safety, therefore subjecting him to personal liability." (Judgment Entry at 7).

{¶11} Appellants now appeal the trial court's August 8, 2021, Judgment Entry denying

Appellant Lotze immunity under the federal Volunteer Protection Act, raising the following

error for review:

ASSIGNMENT OF ERROR

{¶12} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT RICHARD

LOTZE IMMUNITY UPON FINDING A GENUINE ISSUE OF MATERIAL FACT

WHETHER THE "WILLFUL OR CRIMINAL MISCONDUCT, GROSS NEGLIGENCE,

RECKLESS MISCONDUCT, OR A CONSCIOUS, FLAGRANT INDIFFERENCE"

EXCEPTION ENUMERATED IN THE FEDERAL VOLUNTEER PROTECTION ACT, 42

U.S.C. 14501, ET SEQ., APPLIED.”

FINAL APPEALABLE ORDER ANALYSIS

{¶13} As an initial matter, we first determine whether this is a final, appealable

order capable of invoking this Court's jurisdiction. Appellees argue in their brief, and in a

separate motion to dismiss, that the trial court's order denying Appellant’s motion for

summary judgment is not a final appealable order, so this Court lacks jurisdiction to

proceed. Because the Ohio Constitution, Section 3(B)(2), Article IV, limits our jurisdiction

to the review of final judgments of lower courts, we must first resolve this issue before

Stark County, Case No. 2021 CA 00095 5

addressing the merits of the appeal. Germ v. Fuerst, 11th Dist. Lake No. 2003–L–116,

2003–Ohio–6241, ¶ 3. We must determine if we have jurisdiction to review the merits of

this case by deciding whether the requirements of R.C. §2505.02 and Civ.R. 54(B) have

been satisfied. Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d

64 (1989)

{¶14} When determining whether a judgment or order is final and appealable, an

appellate court must first determine whether the order is final within the requirements of

R.C. §2505.02. Then, if the order satisfies R.C. §2505.02, the court must determine

whether Civ.R. 54(B) applies and, if so, whether the order contains a certification that

there is no just reason for delay. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d

17, 21, 540 N.E.2d 266 (1989). “ ‘Civ.R. 54(B) does not alter the requirement that an order

must be final before it is appealable.’ ” Id., quoting Douthitt v. Garrison, 3 Ohio App.3d

254, 255, 44 N.E.2d 1068 (9th Dist.1981).

{¶15} R.C. §2505.02(B) lists orders that are final and may be reviewed upon

appeal:

(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;

***

{¶16} A “substantial right” for purposes of R.C. §2505.02 is a legal right enforced

and protected by law. State ex rel. Hughes v. Celeste, 67 Ohio St.3d 429, 430, 619 N.E.2d

412 (1993); Noble v. Colwell, 44 Ohio St.3d 92, 94, 540 N.E.2d 1381 (1989). Alternatively

Stark County, Case No. 2021 CA 00095 6

a “substantial right” is defined as “a right that the United States Constitution, the Ohio

Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce

or protect.” R.C. §2505.02(A)(1). An order affects a substantial right if, in the absence of

an immediate appeal, one of the parties would be foreclosed from appropriate relief in the

future. Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993).

{¶17} Civ.R. 54(B) provides that “[w]hen more than one claim for relief is

presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim,”

or when the action involves multiple parties, “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.”

{¶18} “Thus, in multiple-claim or multiple-party actions, if the court enters

judgment as to some, but not all, of the claims and/or parties, the judgment is a final

appealable order only upon the express determination that there is no just reason for

delay.” In re Estate of L.P.B., 10th Dist. No. 11AP-81, 2011-Ohio-4656, ¶ 9. While

inserting the language of “no just reason for delay” in an entry is not a “mystical incantation

which transforms a nonfinal order into a final appealable order,” the language can

“transform a final order into a final appealable order.” Wisintainer v. Elcen Power Strut

Co., 67 Ohio St.3d 352, 354, 617 N.E.2d 1136 (1993), citing Chef Italiano Corp. v. Kent

State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989).

{¶19} In this case, the decision of the lower court denying Appellant’s motion for

summary judgment does not contain the Civ.R. 54 “no just reason for delay” language.

{¶20} The denial of a motion for summary judgment generally is not a final,

appealable order. See Dalton v. Romano, 2012-Ohio-5462, 982 N.E.2d 1275, ¶ 16 (5th

Stark County, Case No. 2021 CA 00095 7

Dist. Stark), citing State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23, 222 N.E.2d

312. This is due to the fact that the denial does not determine the action and prevent a

judgment and is, therefore, not a final order under R.C. 2505.02. See Celebrezze v.

Netzley (1990), 51 Ohio St.3d 89, 90, 554 N.E.2d 1292. However, a denial of a motion

for summary judgment is always reviewable on appeal following a subsequent final

judgment. Yates v. Allstate Ins. Co., Licking App.No. 04 CA 39, 2005-Ohio-1479.

{¶21} This Court explained in Meier v. Meier, 5th Dist. Fairfield No. 16-CA-42,

2017-Ohio-1109, ¶ 12:

An “order which affects a substantial right has also been interpreted

to be one which, if not immediately appealable, would foreclose appropriate

relief in the future.” State v. Shaffer, 8th Dist. Cuyahoga No. 87552, 2006-

Ohio-5563, Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 616 N.E.2d 181

(1993). To establish an order affects a substantial right, the appellant must

establish that, in the absence of immediate review of the order, he or she

will be denied effective relief in the future. Id.

{¶22} Appellants argue that in the present case an immediate appeal should be

allowed because Appellant Lotze is immune from suit under the Federal Volunteer

Protection Act, 42 U.S.C. 14501, et seq. (VPA). Appellant argues that immunity under

the VPA entitles him to immunity from suit rather than a mere defense to liability. Appellant

cites various federal cases to support this contention. However, Ohio law regarding what

is and what is not a final appealable order is not governed by the federal courts'

interpretations of the federal rules of procedure.

Stark County, Case No. 2021 CA 00095 8

{¶23} With the exception of the statutory exception provided in R.C. 2744, Ohio

courts do not allow for a review of a denial of summary judgment based on immunity.

Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, 554 N.E.2d 1292, rehearing denied

(1990), 52 Ohio St.3d 710, 557 N.E.2d 1217, certiorari denied (1990), 498 U.S. 967, 111

S.Ct. 428, 112 L.Ed.2d 412 (The denial of a motion for summary judgment premised on

absolute immunity under the first amendment's freedom to express opinion is not

immediately appealable); Ohio Civ. Serv. Employees Ass'n v. Moritz, 39 Ohio App.3d

132, 529 N.E.2d 1290 (10th Dist.1987) (The denial of a motion for summary judgment in

a case brought under Section 1983, Title 42, U.S.Code, which motion is based on a claim

of qualified immunity by state officials, is not a final appealable order); Stevens v. Ackman

(2001), 91 Ohio St.3d 182, 743 N.E.2d 901 (the court specifically found that the denial of

a summary judgment motion on the issue of governmental immunity is not a final

appealable order).

{¶24} Here, an immediate appeal is not necessary to protect Appellant's right to

assert an immunity defense in the future. The trial court's denial of summary judgment for

immunity under the VPA merely postpones the final disposition of both the immunity claim

and the merits of the case until trial. Appellants retain all substantial rights. Therefore,

denial of summary judgment for immunity under the VPA is not a final and appealable

order.

{¶25} Based on the foregoing, we find that this Court does not have jurisdiction

over Appellants' appeal as the trial court's denial of Appellants' motion for summary

judgment was not a final order under R.C. §2502.02 et seq. Moreover, the trial court's

Stark County, Case No. 2021 CA 00095 9

Order does not contain the necessary "no just reason for delay" language required under

Civ.R. 54(B).

{¶26} Accordingly, the motion to dismiss is granted and this appeal is ordered

dismissed.

By: Wise, John, J.

Wise, Earle, P. J., and

Delaney, J., concur.

JWW/kw 0602