Dayton Women's Health Center v. Enix

Holmes, J. The sole issue certified for our review is whether the certification of a defendant class action is a final appealable order that must be appealed within the time allotted under App. R. 4(A).2 For the reasons which follow, we decide that such class certifications are final appealable orders which must be appealed within thirty days pursuant to App. R. 4(A). “Final appealable orders” are defined in R.C. 2505.02, as follows: “An order affecting a substantial right in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. * * *” (Later amended March 1987.) This court addressed the issue of the appealability of class certifications in Amato v. General Motors Corp. (1981), 67 Ohio St. 2d 253, 21 O.O. 3d 158, 423 N.E. 2d 452, syllabus, by holding that “[a]n order of a trial court, pursuant to Civ. R. 23(C)(1), determining that an action may be maintained as a [plaintiff] class action is a final, appealable order, pursuant to R.C. 2505.02.” In deciding that class certifications are in effect special proceedings under R.C. 2505.02, the Amato court announced a balancing test to be applied in these proceedings: “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.” Id. at 258, 21 O.O. 3d at 161, 423 N.E. 2d at 456. Similarly, in Roemisch v. Mutual of Omaha Ins. Co. (1974), 39 Ohio St. 2d 119, 68 O.O. 2d 80, 314 N.E. 2d 386, syllabus, this court held that an order denying plaintiff class action status was a final appealable order under — 70 — R.C. 2505.02, since “such [an] order clearly affects a ‘substantial right’ of the class which ‘in effect determines the action and prevents a judgment’ adverse or favorable to the class.” (Emphasis sic.) Id. at 122, 68 O.O. 2d at 81, 314 N.E. 2d at 388. Therefore, pursuant to R.C. 2505.02 an appeal will lie directly from an order certifying or denying class action status. Although Amato and Roemisch dealt with the appealability of plaintiff class actions, we find little reason not to apply the holding in those cases to defendant class actions. Clearly, the potential plaintiff or defendant will be equally prejudiced in asserting his or her rights in a defendant or plaintiff class action depending on the certification ruling by the trial court. See, e.g., Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho (1990), 52 Ohio St. 3d 56, 556 N.E. 2d 157. (Plaintiff requested that defendant class action be certified in order to enjoin the defendant class from engaging in certain conduct.) Usually, defendant class actions are requested in suits seeking injunctive relief under Civ. R. 23(B)(2) when there are several defendants who have been charged with a common responsibility for implementing or enforcing a particular challenged code provision or who have otherwise acted in common under an industry-wide practice or collective bargaining agreement, or have had some other interrelationship to one another that bears directly on the challenged conduct in the litigation. 1 Newberg, Newberg on Class Actions (2 Ed. 1985) 133, Section 3.02. Both plaintiff and defendant class actions arise because of the litigation strategies adopted primarily by the plaintiff’s counsel under the particular circumstances. Furthermore, “[w]hether the action is claimed to be a class action is solely of plaintiff’s choosing, although the defendant may request class treatment in unusual circumstances.” Alpert, Class Action Manual (National Consumer Law Center 1977) 190, quoted in Newberg on Class Actions, supra, at fn. 23. Appellants assert that although a class determination is a final appealable order, “an immediate appeal from an order certifying a defendant class is permissive, not mandatory.” We disagree. Ohio’s App. R. 4(A) states in pertinent part that: “In a civil case the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within thirty days of the date of the entry of the judgment or order appealed from. * * *” (Emphasis added.) Clearly, App. R. 4(A) requires that an appeal be filed within thirty days of a final appealable order.3 Thus, an order of a trial court, pursuant to Civ. R. 23(C), determining that an action shall be maintained as a class action, is a final appealable order, and a party must appeal such an order within thirty days of the date of entry pursuant to App. R. 4(A). In the case sub judice appellants failed to appeal the January 15, 1987 certification of the defendant class. Instead, they chose to appeal the propriety of the certification on July 10, 1987, when the trial court issued a decision and entry permanently enjoining the defendant class members. Consequently, appellants waived their right to challenge the class certification on appeal.4 — 71 — Therefore, for the foregoing reasons, the decision of the court of appeals is affirmed as to the issue on certification. Judgment affirmed. Moyer, C.J., Wright and H. Brown, JJ., concur. H. Brown, J., concurs separately. Sweeney, Douglas and Res-nick, JJ., dissent. Footnotes [2] Although appellants argue several propositions of law related to the range and extent of the permanent injunction, we choose only to address the sole question certified to us by the court of appeals. [3] We recommend that the Rules Advisory Committee appointed by this court review whether an amendment to App. R. 4(A) should be adopted in order for a party to have the option of appealing an interlocutory final appealable order after final judgment is rendered in a case. [4] Under App. R. 3(A) the court of appeals is permitted to dismiss cases where — 71 — appellants have failed to timely file their appeals. App. R. 3(A) provides: “An appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal. * * *”