Opinion

Weldele v. Brice

  • 2022 Ohio 3246
Court
Ohio Court of Appeals
Filed
Sep 15, 2022
Status
Published
On the bench
Jamison
Cited by
1 cases
Authority
More cited than 55.1%

The opinion

[Cite as Weldele v. Brice, 2022-Ohio-3246.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Philip M. Weldele et al., :

Plaintiffs-Appellees, : No. 21AP-248

(C.P.C. No. 15CV-11145)

v. :

(REGULAR CALENDAR)

Village of Brice, :

Defendant-Appellant. :

D E C I S I O N

Rendered on September 15, 2022

On brief: David A. Goldstein Co., LPA, and David A.

Goldstein for appellees.

On brief: Isaac Wiles & Burkholder, LLC, and Brian M. Zets

for appellant. Argued: Brian M. Zets.

APPEAL from the Franklin County Court of Common Pleas

JAMISON, J.

{¶ 1} Defendant-appellant, Village of Brice ("Village"), appeals from a judgment of

the Franklin County Court of Common Pleas denying, in part, the Village's motion for

summary judgment. For the reasons that follow, we dismiss the appeal.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} In 2015, the Village enacted an ordinance creating a Civil Violations Bureau

("CVB"), authorizing the Chief of Police to ticket motorists for speeding violations within

Village limits, and authorizing a Village administrative hearing officer to hear and

determine the motorist's civil liability administratively. On July 21, 2015, the Chief of Police

ticketed Philip Weldele for speeding after having observed Weldele driving in excess of the

posted speed limit. Weldele paid the $125 fine assessed on the notice of violation form

without requesting an administrative hearing.

No. 21AP-248 2

{¶ 3} On December 10, 2015, appellees filed a class action complaint in the court

of common pleas asserting claims for fraud, unjust enrichment and at least as construed by

the trial court declaratory relief.1 In the complaint, appellees allege the ordinance

establishing appellant's CVB is an unconstitutional exercise of appellant's police powers

under Ohio Constitution, Article XVIII, Section 3 and Ohio Constitution, Article XVIII,

Section 7, because it is in conflict with the specific provisions of the Ohio Revised Code

pertaining to the same subject matter. Appellees' complaint seeks a declaration that the

ordinance is unconstitutional, restitution to Weldele and the class members', a

determination Weldele and the class members' constitutional rights were violated by the

Village, and an award of damages.

{¶ 4} On October 31, 2017, the trial court issued an "Ordered Directive on Briefing

Schedule" requiring the parties to brief numerous issues including whether Weldele failed

to exhaust his administrative remedies, and whether Weldele had standing to file the

instant action. (Oct. 31, 2017 Ordered Directive on Briefing Schedule at 1.) On

December 11, 2019, the trial court issued a "Decision and Entry on Ordered Directive" in

appellees' favor as to each of the issues briefed. (Dec. 11, 2019 Decision and Entry on

Ordered Directive.) On February 19, 2020, the trial court issued a journal entry directing

the Village to file a motion for summary judgment concerning the issues identified in the

October 31, 2017, ordered directive on briefing schedule, and decided in the December 11,

2019, decision and entry on ordered directive.

{¶ 5} On June 30, 2020, the Village filed a motion for summary judgment seeking

judgment as to liability only. In the motion, the Village claimed that the ordinance creating

the CVB represented a constitutional exercise of the Village's home rule authority, the

administrative hearing procedures complied with due process, and the CVB did not usurp

the jurisdiction of the Franklin County Municipal Court. The Village argued that fraud and

unjust enrichment claims failed as a matter of law, and that the Village was entitled to

immunity from liability to appellees in any event. Appellees filed a memorandum in

opposition to the Village's motion for summary judgment, but did not file a cross-motion

for summary judgment.

1 The complaint seeks class certification pursuant to Civ.R. 23(B)(2) and (B)(3).

No. 21AP-248 3

{¶ 6} On March 1, 2021, the trial court issued a "Decision and Entry Granting in

Part Defendant's Motion for Summary Judgment" wherein the trial court determined: 1)

the Village ordinance is an exercise of appellant's police power, rather than of local self-

government; 2) the relevant state statute, R.C. 4511.21, is a general law; and 3) the

ordinance is in conflict with the statute. Accordingly, the trial court suggested that the

ordinance represents an unconstitutional exercise of police powers by the Village which is

preempted by state statutory law. The trial court reasoned that the ordinance is in conflict

with state law because there is a significant discrepancy between the punishments imposed

for the same behavior. Specifically, the trial court found that the ordinance decriminalizes

traffic violations, does not require assessment of points on a license, and imposes no duty

on the Village to notify the Bureau of Motor Vehicles of the violation. Accordingly, the trial

court denied the motion for summary judgment as to the claims for unjust enrichment and

declaratory relief. The trial court did not enter judgment in appellees' favor on either the

unjust enrichment claim or the prayer for declaratory relief as no cross-motion for

summary judgment had been filed. The issue of class certification also remains pending in

the trial court.

{¶ 7} On April 14, 2021, the trial court issued a judgment entry incorporating the

March 3, 2021 decision and entry, and making a finding of no just cause for delay. The

Village appealed to this court from the April 14, 2021, judgment entry.

II. ASSIGNMENTS OF ERROR

{¶ 8} Appellant assigns the following as trial court error:

[1.] The Trial Court erred when it determined Plaintiff did not

have to exhaust his administrative remedies.

[2.] The Trial Court erred when it determined Plaintiff's

admission of liability, when he paid his civil penalty before

filing the instant action, did not bar Plaintiff's claims.

[3.] The Trial Court erred when it (seemed to) determined the

Village of Brice's Ordinance is unconstitutional.

III. LEGAL ANALYSIS

No. 21AP-248 4

{¶ 9} Before addressing the merits of the assigned errors, this court must first

determine whether the trial court's decision denying summary judgment is a final

appealable order.

{¶ 10} The question whether an order is final and appealable is jurisdictional and

can be raised sua sponte by an appellate court. DeAscentis v. Margello, 10th Dist. No.

04AP-4, 2005-Ohio-1520, ¶ 15. "If the parties themselves fail to raise the issue of whether

or not a judgment constitutes a final, appealable order, we must raise the issue sua sponte."

Premium Bev. Supply, Ltd. v. TBK Prod. Works, 10th Dist. No. 14AP-90, 2014-Ohio-4171,

¶ 12, quoting Gates v. Praul, 10th Dist. No. 09AP-123, 2010-Ohio-2062, ¶ 12, citing

Whitaker-Merrell Co. v. Geupel Constr. Co., 29 Ohio St.2d 184, 186 (1972).

{¶ 11} Under Ohio Constitution Article IV, Section 3(B)(2), the jurisdiction of

an appellate court is limited to final appealable orders. O'Toole v. Dove, 10th Dist. No.

12AP-955, 2013-Ohio-5539, citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17,

20 (1989). " ' "The entire concept of 'final orders' is based upon the rationale that the court

making an order which is not final is thereby retaining jurisdiction for further proceedings.

A final order, therefore, is one disposing of the whole case or some separate and distinct

branch thereof." ' " DeAscentis at ¶ 16, quoting Noble v. Colwell, 44 Ohio St.3d 92, 94

(1989), quoting Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303, 306 (1971). To be final

and appealable, an order that adjudicates one or more but fewer than all the claims or

the rights and liabilities of fewer than all the parties must meet the finality requirements of

R.C. 2505.02 and must contain the trial court's certification pursuant to Civ.R. 54(B).

DeAscentis at ¶ 17, citing Noble at syllabus. A trial court's use of Civ.R. 54(B) language does

not turn an otherwise non-final order into a final appealable order. O'Toole at ¶ 7; Noble at

96. See also DeAscentis at ¶ 17, quoting Wisintainer v. Elcen Power Strut Co., 67 Ohio

St.3d 352, 354 (1993), ("[T]he phrase 'no just reason for delay' is not a mystical incantation

that transforms a non-final order into a final appealable order * * * Such language can,

however, through Civ.R. 54(B), transform a final order into a final appealable order.")

Thus, the question in this case is whether the trial court issued a final order in favor of

appellees.

{¶ 12} Pursuant to R.C. 2505.02(B), as is pertinent herein, a final appealable order

is an order that: (1) "affects a substantial right in an action that in effect determines the

No. 21AP-248 5

action and prevents a judgment," or (2) "affects a substantial right made in a special

proceeding or upon a summary application in an action after judgment." A "[s]ubstantial

right" means 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). A declaratory judgment action is a special proceeding within the meaning

of R.C. 2505.02(B)(2).

{¶ 13} Ordinarily, a trial court's denial of a motion for summary judgment does not

constitute a final order under R.C. 2505.02(B)(1), because it does not determine or prevent

a judgment in favor of the moving party at trial. O'Toole at ¶ 5, citing Celebrezze v. Netzley,

51 Ohio St.3d 89, 90 (1990); DeAscentis at ¶ 21. Similarly, " ' "[a]n overruled summary

judgment motion, even if made in a special proceeding, does not affect a substantial right

under R.C. 2505.02, because 'the court refused to make an "order," within the statutory

meaning of that word, on the motion for summary judgment, and retained the case for trial

on the merits.' " ' " O'Toole at ¶ 6, quoting Cincinnati Ins. Co. v. Robert W. Setterlin & Sons,

10th Dist. No. 07AP-47, 2007-Ohio-5094, ¶ 37, quoting Swanson v. Ridge Tool Co., 113

Ohio App. 357, 359 (9th Dist.1961).

{¶ 14} Here, the trial court's March 1, 2021 decision and entry granting in part, the

Village's motion for summary judgment clearly disposed of appellees' claim for fraud in

favor of the Village. However, the March 1, 2021 decision and entry merely denied

appellant's motion for summary judgment as to the claim for unjust enrichment and the

prayer for declaratory relief. Accordingly, even though the March 1, 2021, decision and

entry was issued in the context of a special proceeding, as the trial court saw it, the judgment

did not affect a substantial right because no "order" was issued in appellees favor. Thus,

there was no final order in appellees favor for the Village to appeal.

{¶ 15} Though the March 1, 2021, decision and entry expresses a future intent on

the part of the trial court to declare the ordinance unconstitutional, nothing in the

March 1, 2021 decision and entry prevents the Village from obtaining a meaningful review

by way of a later appeal. See DeAscentis at ¶ 23, citing Burt v. Harris, 10th Dist. No. 03AP-

194, 2004-Ohio-756. Moreover, "[w]hen a trial court enters a judgment in a declaratory

judgment action, the order must declare all of the parties' rights and obligations in order to

constitute a final, appealable order." DeAscentis at ¶ 23, quoting Caplinger v. Raines, 4th

No. 21AP-248 6

Dist. No. 02CA2683, 2003-Ohio-2586, ¶ 3. The March 1, 2021, decision and entry fails to

declare the rights and obligations of the parties, and makes no award.

{¶ 16} It is true that the trial court's April 14, 2021, judgment entry includes a

finding of no just reason for delay, pursuant to Civ.R. 54(B). That finding, however, did not

convert the non-final order denying summary judgment into a final order in favor of

appellees with respect to the claims for declaratory relief and unjust enrichment. See

DeAscentis; O'Toole. Those claims remain pending in the trial court for a final ruling.

{¶ 17} For the foregoing reasons, we find that the Village's appeal does not present

a final appealable order for this court's consideration. Lacking jurisdiction to consider

anything less than a final appealable order, we are compelled to dismiss the appeal.

IV. CONCLUSION

{¶ 18} Having concluded that the order appealed from was not a final appealable

order, we dismiss the appeal for the lack of jurisdiction.

Appeal Dismissed.

DORRIAN and NELSON, JJ., concur.

NELSON, J., retired, of the Tenth Appellate District, assigned

to active duty under the authority of the Ohio Constitution,

Article IV, Section 6(C).

_____________

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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