State ex rel. Celebrezze v. K & S Circuits, Inc.

Sweeney, J. The sole issue before this court is whether an order denying a jury trial to the state in an action commenced under R.C. Chapter 6111 (Water Pollution Control) is a final appealable order pursuant to R.C. 2505.02. R.C. 2505.02 states in relevant part: “* * * [A]n order affecting a substantial right made in a special proceeding * * * is a final order which may be reviewed * * Appellant maintains that under R.C. 2505.02, the trial court’s decision was an order affecting a substantial right made in a special proceeding. Appellant argues that unnecessary time and expense will be spent if it is required to try the cause without a jury, and then appeal the jury trial issue. If on appeal appellant is found to be entitled to a jury trial, appellant would have to try the case a second time. On the other hand, appellant submits that if it could obtain review of the jury trial issue prior to trial, resources of both the litigants and the judiciary would be conserved. Appellee contends that the appellant could have pursued this case to final judgment without prejudicing a right to appeal; and that the goal of “prompt and orderly disposal of litigation” is not served by allowing this type of interlocutory appeal. Continuing, appellee asserts that since R.C. Chapter 6111 was unknown at common law, the state is not entitled to a trial by jury as to the amount of civil penalties to be assessed. In Squire v. Guardian Trust Co. (1946), 147 Ohio St. 1 [33 O.O. 179], this court stated at page 5: “The prompt and orderly disposal of litigation is an object much to be desired, and the entertainment of appeals from various orders made by the trial court during the progress of the main action is not in pursuance of such object.” Then, in Bernbaum v. Silverstein (1980), 62 Ohio St. 2d 445 [16 O.O.3d 461], our opinion gave several examples of final reviewable orders arising from special proceedings, and we stated that “* * * a prime determinant of whether a particular order is one made in a special proceeding is the practicability of appeal after final judgment.” Id. at 447. Next, in Amato v. General Motors Corp. (1981), 67 Ohio St. 2d 253 [21 O.O.3d 158], this court stated, at page 258: “* * * whether an order is made in a special proceeding is resolved through a balancing test. This test weighs the harm to the ‘prompt and orderly disposition of litigation,’ and .the consequent waste of judicial resources, resulting from the allowance of an appeal, with the need for immediate review because appeal after final judgment is not practicable.” Our review of the prior precedent in this realm leads us to conclude that an order denying a jury trial to the state in an action commenced pursuant to R.C. Chapter 6111 is not a final appealable order under R.C. 2505.02. In the instant case, we do not believe that appellant’s right to appeal the denial of a jury trial is compromised by the denial of interlocutory review. This is true, especially in light of “our reluctance to allow for immediate [356] review of rulings made during the pendency of a civil action.” Bernbaum, supra, at 447. In implementing the balancing test set forth in Amato, we find the scales of justice weigh in favor of the need for prompt and orderly disposal of litigation, and we find this concern to be paramount within the context of most civil action proceedings. If appellant wishes to appeal the trial court’s assessment of a civil penalty on the grounds that a jury trial should have been allowed, it can do so after final judgment. Nevertheless, we do not find that R.C. 2505.02 encompasses the subject matter contained within the instant appeal. Although the appellant potentially faces two trials if successful on appeal, this is so in any case where a ruling by the trial court is not immediately reviewable. For the foregoing reasons, the judgment of the court of appeals is affirmed. Judgment affirmed. Celebrezze, C.J., W. Brown, Locher, C. Brown and J. P. Cele-BREZZE, JJ., concur. Holmes, J., dissents.