New Waste Concepts, Inc. v. Applegate Insulation, L.L.C.

[Cite as New Waste Concepts, Inc. v. Applegate Insulation, L.L.C. , 2019-Ohio-283.]

COURT OF APPEALS WOOD COUNTY, OHIO SIXTH APPELLATE DISTRICT

NEW WASTE CONCEPTS, INC., JUDGES: Hon. W. Scott Gwin, P.J Plaintiff – Appellee Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2018-WD-0070 APPLEGATE INSULATION LLC, ET AL.

Defendants – Appellants O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Wood County Court of Common Pleas, Case No. 2018 CV 0205

JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: January 29, 2019 APPEARANCES: For Plaintiff-Appellee For Defendants-Appellants

CARL C. IRELAND ANDREW R. MAYLE Spitler Huffman, LLP RONALD J. MAYLE 932 Dixie Highway Mayle LLC Rossford, Ohio 43460 P.O. Box 263 Perrysburg, Ohio 43552

Wood County, Case No. 2018-WD-0070 2

Hoffman, J. {¶1} Appellants Applegate Insulation, LLC and Applegate Holdings, LLC appeal

the judgment entered by the Wood County Common Pleas Court denying their motion to dismiss Appellee New Waste Concepts, Inc.’s complaint, or in the alternative to stay the action while Appellee recommenced it in Michigan.

STATEMENT OF THE CASE1

{¶2} Appellee filed the instant action against Appellants for declaratory judgment and damages for tortious interference with a contractual and business relationship. Appellants filed a motion to dismiss or in the alternative to stay the action, arguing a forum selection clause in the contract between the parties required the action to be filed in Michigan. The court overruled the motion to dismiss or stay the action. It is from the August 9, 2018 judgment overruling their motion Appellants prosecute this appeal, assigning as error:

THE TRIAL COURT IN OHIO ERRED BY NOT ENFORCING A

FORUM-SELECTION CLAUSE STATING THAT, “THE PARTIES AGREE

THAT ANY ACTIONS SHALL BE BROUGHT TO THE COURT OF

APPROPRIATE JURISDICTION IN INGHAM COUNTY, MICHIGAN OR

U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN.

{¶3} As a preliminary matter, we must first determine whether the order under review is a final appealable order. If an order is not final and appealable, then we do not 1 A rendition of the facts is unnecessary to our resolution of the appeal. Wood County, Case No. 2018-WD-0070 3 have jurisdiction to review the matter and must dismiss the appeal. See Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).

{¶4} To be final and appealable, an order must comply with R.C. 2505.02(B), which provides, in pertinent part:

(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;

(2) An order that affects a substantial right made in a special

proceeding or upon a summary application in an action after judgment.

(3) An order that vacates or sets aside a judgment or grants a new

trial;

(4) An order that grants or denies a provisional remedy and to which

both of the following apply:

(a) The order in effect determines the action with respect to the

provisional remedy and prevents a judgment in the action in favor of the

appealing party with respect to the provisional remedy.

(b) The appealing party would not be afforded a meaningful or

effective remedy by an appeal following final judgment as to all proceedings,

issues, claims, and parties in the action. Wood County, Case No. 2018-WD-0070 4

{¶5} The Fifth District Court of Appeals has held a judgment denying a motion to change venue or in the alternative dismiss an action based on a forum selection clause in a contract is not a final, appealable order:

The only possible applicable paragraph is paragraph 4, regarding

provisional remedies. “‘Provisional remedy’ means a proceeding ancillary to

an action, including, but not limited to, a proceeding for a preliminary

injunction, attachment, discovery of privileged matter, or suppression of

evidence.” R.C. 2505.02(A)(3). The statutory definition does not specifically

refer to proceedings to transfer venue nor are any of the listed proceedings

akin to a transfer of venue. See Duryee, supra. The basic purpose of R.C.

2505.02(A)(3) in categorizing certain types of preliminary decisions of a trial

court as final, appealable orders is the protection of one party against

irreparable harm by another party during the pendency of the litigation. Id.

We find that a decision by a trial court to deny a request for change of venue

does not involve the same degree of risk of irreparable harm to a party as

the decisions made in the types of actions listed under 2505.02(A)(3). The

types of provisional remedies listed under 2505.02(A)(3) include decisions

that, made preliminarily, could decide all or part of an action or make an

ultimate decision on the merits meaningless or cause other irreparable

harm. For instance, a preliminary injunction could be issued against a high

school football player preventing him from playing football his senior year

based on recruiting violations. The trial court could grant the attachment of Wood County, Case No. 2018-WD-0070 5

property for which the owner has a ready buyer. Discovery of privileged

material could force a person to divulge highly personal and sensitive

information. If evidence critical to the prosecution of a criminal case is

suppressed, the state could lose any meaningful chance at successful

prosecution of a criminal. The decision to deny a change of venue does not

result in any of the types of irreparable harm just listed. There is an

adequate legal remedy from a decision denying a change of venue, after

final judgment. In other words, it may be expensive to get the cat back in

the bag, if a trial court errs when it denies a change of venue, but it can be

done. Whereas, when the types of decisions listed in 2505.02(A)(3) are

made, the cat is let out of the bag and can never be put back in. Therefore,

denial of a request to change venue is not a final, appealable order. In

accord, Wilson v. Kemp (Nov. 24, 1999), Scioto App. No. 99CA2667,

unreported, 1999 WL 1125111. The Second District Court of Appeals has

also considered whether venue questions are final, appealable orders.

While the Second District Court found that a venue order can qualify as a

provisional remedy because it prevents a judgment in favor of the appealing

party with respect to the venue question, it found that venue decisions were

not final, appealable orders since the party is afforded an effective remedy

by way of appeal after final judgment. Jetter v. Abbott (July 31, 2000),

Montgomery App. No. 17888, unreported (citing State ex rel. Banc One

Corp. v. Walker (1999), 86 Ohio St.3d 169, 173, 712 N.E.2d 742, venue

orders do not normally affect a substantial right, because appeal after Wood County, Case No. 2018-WD-0070 6

judgment is an adequate legal remedy). Accordingly, we find that the

December 6, 1999, Judgment Entry is not a final, appealable order.

{¶6} Mansfield Family Restaurant v. CGS Worldwide, Inc., 5th Dist. Richland No. 00-CA-3, 2000 WL 1886226, *2.

{¶7} In finding a judgment which granted a motion to stay an action to allow refiling in Massachusetts to be a final, appealable order, this Court distinguished the decision of the Fifth District in Mansfield Family Restaurant as follows:

The adequate, although expensive, remedy envisioned in Mansfield

Family Restaurant is that after final resolution of the case, an Ohio appellate

court could review the trial court's decision not to enforce the forum

selection clause, find that it was error and reverse, thereby allowing the

parties to litigate their dispute again in another state.

The difference between Mansfield Family Restaurant and the case

presently before us is that if Overhead, Inc. cannot appeal now from the trial

court's decision that the dispute must be litigated in Massachusetts, then

after the case is resolved in the Massachusetts court, Overhead, Inc. will

have no forum to turn to which can review the original decision enforcing

the forum selection clause. A Massachusetts appellate court would not have

jurisdiction to review an Ohio court's decision and it would be too late to file

an appeal in the Ohio appellate court since the case in Ohio was not merely

transferred to Massachusetts, but was actually dismissed. Wood County, Case No. 2018-WD-0070 7

Therefore, we find that under R.C. 2505.02(B)(4) the trial court's

order is final and appealable. The proceeding in the trial court determining

whether the case should be litigated in Ohio or in Massachusetts is ancillary

to the action and thus is a provisional remedy pursuant to R.C.

2505.02(A)(3). Since the order granting the “provisional remedy,” i.e.,

enforcing the forum selection clause, makes a full determination of the issue

and prevents a judgment in favor of appellant on this issue it fulfills R.C.

2505.02(B)(4)(a). Finally, R.C. 2505.02(B)(4)(b) is fulfilled because

appellant would have no remedy through an appeal after the case has been

heard in Massachusetts since there would be no appellate court with

jurisdiction to decide the issue.

{¶8} Overhead, Inc. v. Standen Contracting, 6th Dist. Lucas No. L-01-1397, 2002-Ohio-1191, *3.

{¶9} We find the judgment appealed from in the instant case is not a final, appealable order, based on the reasoning set forth in Mansfield Family Restaurant, supra. As this Court noted in Overhead, Inc., supra, when the motion to dismiss or transfer venue to another state is overruled, the party has an opportunity for review of the order at the end of the case. Thus the instant case is distinguishable from Overhead, Inc. Wood County, Case No. 2018-WD-0070 8

{¶10} As we do not have jurisdiction over the appeal, the appeal is dismissed.

HON. WILLIAM B. HOFFMAN

HON. W. SCOTT GWIN

HON. EARLE E. WISE, JR.

By: Hoffman, J. Gwin, P.J. and Wise, Earle, J. concur

IN THE COURT OF APPEALS FOR WOOD COUNTY, OHIO SIXTH APPELLATE DISTRICT

NEW WASTE CONCEPTS, INC., : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : APPELGATE INSULATION LLC, ET AL., : January 29, 2019 : Defendants-Appellants : Case No. 2018-WD-0070

For the reason stated in our accompanying Opinion, this appeal is dismissed. Costs assessed to Appellants.

HON. WILLIAM B. HOFFMAN

HON. W. SCOTT GWIN

HON. EARLE E. WISE, JR.