# Hubbell v. City of Xenia

> Ohio Supreme Court · October 3, 2007 · 115 Ohio St. 3d 77

URL: https://www.frixlaw.com/law-library/cases/6791091

## Case

- **Full name:** Hubbell v. City of Xenia
- **Court:** Ohio Supreme Court
- **Decided:** October 3, 2007
- **Citations:** 115 Ohio St. 3d 77; 873 N.E.2d 878
- **Precedential status:** Published
- **Opinion:** Dissent by Pfeifer
- **Judges:** Connor, Cupp, Donnell, Lanzinger, Moyer, Pfeifer, Stratton
- **Cited by:** 237 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6791091

## How later opinions describe it (automated extraction)

- stating that whether political subdivision entitled to immunity under R.C. Chapter 2744 is a question of law
- emphasizing the statute's use of the words “benefit” and “alleged”

## Opinion text

Pfeifer, J.,
dissenting.
{¶ 28} The majority today reverses a well-reasoned and influential opinion from the Second District Court of Appeals. Other appellate districts have embraced the Second District’s reasoning in this case, rejecting their own former interpretation of R.C. 2744.02(C) as allowing an interlocutory appeal when a trial court has denied a political subdivision’s motion for summary judgment based *83 upon the existence of a genuine issue of material fact. The lower court’s opinion in this case deserves that respect — it is true to R.C. 2744.02(C), fair to all parties, and presents the best way to achieve judicial economy in sovereign-immunity cases.
{¶ 29} As the majority points out, after we accepted this case pursuant to a certified conflict between the Second and Fourth Appellate Districts, the Fourth Appellate District in Estate of Graves v. Circleville, Ross App. No. 06CA2900, 2006-Ohio-6626 , 2006 WL 3691609 , decided to adopt the appellate court’s reasoning in this case. Moreover, the Eighth Appellate District, a district the majority depicts as differing from the Second District in the application of R.C. 2744.02(C), has also recently adopted the Second District’s reasoning from Hubbell in Fogle v. Bentleyville, Cuyahoga App. No. 88375, 2007-Ohio-2913 , 2007 WL 1705307 . In Martin v. Gahanna, Franklin App. No. 06AP-1175, 2007-Ohio-2651 , 2007 WL 1560283 , ¶ 9, the Tenth District wrote that it found the reasoning of Hubbell to be persuasive. The majority in today’s decision seems to be on the wrong side of a growing trend.
{¶ 30} Certainly, this court should carefully consider the practical underpinnings of the appellate court’s opinion in this case. First-level appellate courts face the reality of appeals from summary judgment on a daily basis, and that experience seems to have guided the appellate court. The court wrote:
{¶ 31} “[The] conservative construction of R.C. 2744.02(C) best serves the purpose of judicial economy. Generally, when a trial court concludes that there is a genuine issue of material fact concerning an issue — thus requiring more work for the trial court in the form of a trial on that issue — it is unusual for a reviewing appellate court to find, to the contrary, that there is no genuine issue of material fact. So, in the usual situation when an appellate court would agree that a factual question exists concerning governmental immunity, an immediate appeal would merely add an unnecessary appeal — with its attendant delay — to the litigation.” Hubbell v. Xenia, 167 Ohio App.3d 294 , 2006-Ohio-3369 , 854 N.E.2d 1133, ¶ 14 .
{¶ 32} Secondly, as the appellate court pointed out, a narrower interpretation of R.C. 2744.02(C) “would provide a simple, easily applied test for determining whether an order that did not grant a request for immunity was immediately appealable.” Hubbell, 167 Ohio App.3d 294 , 2006-Ohio-3369 , 854 N.E.2d 1133, ¶ 15 . That certainty conserves parties’ resources as well as judicial resources.
{¶ 33} A final practical aspect discussed by the court below is that under a broad interpretation of R.C. 2744.02(C), “any order that failed to grant immunity when requested would raise the question of whether the case was in an appropriate procedural posture for appellate review.” Id. Denials of Civ.R. 12(B)(6) motions and motions for a directed verdict, as well as denials of multiple motions *84 for summary judgment, can now be immediately appealed, according to the majority opinion.
{¶ 34} The majority demeans the work of appellate courts when it states that “[a] court of appeals may not avoid deciding difficult questions of immunity by pointing to the trial court’s use of the language ‘genuine issue of material fact.’ ” Appellate courts are not attempting to avoid “difficult” issues; they are trying to avoid wasting their own time and that of the parties. The issue of immunity will eventually be settled in appellate courts when the issue and the record are sufficiently ripe.
{¶ 35} Besides the practicalities pointed out by the appellate court in this case, that court’s holding is consistent with R.C. 2744.02(C), which reads:
{¶ 36} “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.”
{¶ 37} The key word in R.C. 2744.02(C) is “denies.” Certainly, Xenia cannot claim that its assertion of immunity has been denied, that it has been foreclosed from further asserting and proving its alleged immunity at the trial level. The majority ascribes special meaning to the words “benefit” and “alleged” in its opinion, though it does not set forth why those words are especially important. The majority acts as though there is a “benefits package” that comes with immunity, and that part of that package is an automatic appeal every time the court does not respond summarily in a political subdivision’s favor. The “benefit” of immunity from liability is simply immunity from liability, not immunity from being sued. Political subdivisions are not immune from having to defend themselves in court.
{¶ 38} Here, the trial court denied a motion for summary judgment — it did not deny Xenia the ability to successfully mount a defense. Xenia could still enjoy the benefit of immunity. R.C. 2744.02(C) does not grant an immediate appeal when the political subdivision has not developed the record enough for a decision on its immunity to be made one way or another. As the court said below, a denial of a summary judgment motion due to the existence of a genuine issue of material fact is not a judgment on the movant’s claim, but rather is a commentary on the state of the record. Hubbell, 167 Ohio App.3d 294 , 2006-Ohio-3369 , 854 N.E.2d 1133, ¶ 13 .
{¶ 39} The appellate court’s decision in this case relied in part on this court’s holding in State Auto. Mut. Ins. Co. v. Titanium Metals Corp., 108 Ohio St.3d 540 , 2006-Ohio-1713 , 844 N.E.2d 1199 , and the majority should not back away from that well-reasoned decision. In holding that an appellate court lacked jurisdiction to hear an appeal of the denial from a Civ.R. 12(B)(6) motion in Titanium Metals, this court essentially held that a “not yet” ruling does not *85 constitute a denial of an alleged immunity. As the lower court said of our opinion in Titanium Metals, “an order is not immediately appealable merely because the trial court denied a request for immunity.” Hubbell at ¶ 21 . Neither a denial of a Civ.R. 12(B)(6) motion nor a denial of summary judgment because of a factual dispute goes to the merits of the case, but instead reflect the merits of the record as it then exists. The majority tries to distance itself from Titanium Metals, but the simple fact is that this court did hold in Titanium Metals that the denial of a Civ.R. 12(B)(6) motion did not deny the political subdivision its immunity defense. This court wrote, “The [trial] court made no determination as to whether immunity applied, whether there was an exception to immunity, or whether R.C. 2744.05(B)(1) precludes contribution as the basis for its decision. The court did not dispose of the case.” Id., ¶ 10.
{¶ 40} Here, the trial court did not dispose of the case or of the immunity issues raised by Xenia. As the court wrote below, “Until the trial court has denied the claim of immunity — as opposed to failing to grant the request for immunity at that time — the trial court has merely determined that there are questions of fact that need resolution before the immunity question can be fully addressed.” Hubbell, 167 Ohio App.3d 294 , 2006-Ohio-3369 , 854 N.E.2d 1133, ¶ 21 .
{¶ 41} This court need not judicially expand R.C. 2744.02(C) to further mollycoddle political subdivisions. Political subdivisions are not the only participants in lawsuits — the resources of plaintiffs and courts are also stretched in having to address excessive appeals. Plaintiffs, most often ordinary citizens harmed by the actions of a political subdivision, already face a stacked deck and an opponent with comparatively vast resources. Now, the majority draws no line on the number of immediate appeals a political subdivision can take. It’s good to be king.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6791091. Public record. Not legal advice.