[Cite as Cleveland v. State, 2018-Ohio-4779.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106685
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
STATE OF OHIO
DEFENDANT-APPELLANT
JUDGMENT: DISMISSED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-877584
BEFORE: Jones, J., Kilbane, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: November 29, 2018 ATTORNEYS FOR APPELLANT
For CTIA - The Wireless Association
Kathleen M. Trafford Andrew C. Emerson Porter Wright Morris & Arthur L.L.P. 925 Euclid Avenue, Suite 1700 Cleveland, Ohio 44115
J. Philip Calabrese 950 Main Avenue, Suite 500 Cleveland, Ohio 44113
L. Bradfield Hughes William Hunter West Porter Wright Morris & Arthur L.L.P. 41 S. High Street Columbus, Ohio 43215
For state of Ohio
Mike DeWine Ohio Attorney General
BY: Bridget C. Coontz Sarah E. Pierce Renata Y. Staff Assistant Attorneys General 30 East Broad Street, 16th Floor Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
For city of Cleveland
Barbara A. Langhenry Director of Law
BY: Gary S. Singletary Christopher J. Heltzel Assistant Law Directors City of Cleveland Department of Law Cleveland City Hall 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44114
For city of Brecksville and village of Glenwillow
David J. Matty City Law Director
BY: Mark B. Marong Shana Samson 1001 Lakeside Avenue, Suite 1410 Cleveland, Ohio 44140
LARRY A. JONES, SR., J.:
{¶1} Intervenor-appellant, CTIA – The Wireless Association (“CTIA”), appeals the trial
court’s denial of its motion to intervene in the underlying case. For the reasons that follow, we
dismiss this appeal as untimely filed.
{¶2} On March 20, 2017, the city of Cleveland filed suit against defendant-appellee state
of Ohio bringing several constitutional challenges against Senate Bill 331 (S.B. 331), which went
into effect March 21, 2017. The city of Brecksville and villages of Bratenahl and Glenwillow
subsequently moved to intervene as plaintiffs. The trial court granted their motions.
{¶3} In April 2017, CTIA, a group representing members of the U.S. wireless
communications industry, also moved to intervene. The trial court denied this motion on June
20, 2017. CTIA did not appeal the trial court’s decision.
{¶4} The parties agreed to bifurcate the claims in the case and to first address the claim
that S.B. 331 violated the single-subject rule. The trial court set a briefing schedule to address
that claim. The plaintiffs moved for partial summary judgment on the single-subject claim,
which the state opposed and moved for summary judgment in its favor. {¶5} On December 6, 2017, the trial court issued an opinion finding that S.B. 331 violated
the single-subject requirement and invalidated three Ohio laws: amendments to R.C. 4111.02,
amendments to R.C. Chapter 4939, and R.C. 4113.85.
{¶6} CTIA filed its notice of appeal in the instant case on January 3, 2018, stating in its
notice of appeal that it was appealing from the trial court’s orders of June 20, 2017 and December
6, 2017.
{¶7} The state of Ohio appealed the trial court’s December 6, 2017, decision. See
Cleveland v. State, 8th Dist. Cuyahoga No. 106688. This court determined that the appeals
would be treated as companion appeals and would be separately briefed, argued, and disposed of
by the same merit panel.
{¶8} In April 2018, CTIA filed a motion with this court to dismiss its appeal and vacate
the trial court’s June 20, 2017 order as moot. CTIA claimed that the single-subject challenges to
the micro-wireless provisions of S.B. 331 were rendered moot by the passage of House Bill 478 in
April 2018; therefore, CTIA would have no need to intervene in a dispute over what it considered
were now defunct micro-wireless provisions. The city opposed CTIA’s motion.
{¶9} This court denied CTIA’s motion:
Motion by appellant, CTIA – The Wireless Association, to dismiss the appeal and
vacate the trial court entry as moot is denied. Appellant may file a separate
motion to dismiss the appeal; however, this court denies appellant’s request to
dismiss the appeal and also find the trial court’s judgment denying appellant’s
motion to intervene as moot.
{¶10} Prior to oral argument on the two cases, we ordered the parties to brief the issue of
whether the trial court’s June 20, 2017 order denying CTIA’s motion to intervene was a final, appealable order sufficient to establish jurisdiction for appellate review. The parties briefed the
issue, with CTIA arguing that the June 20 order was not a final, appealable order. The state
contended that the order was final and appealable and therefore CTIA’s appeal is untimely.
{¶11} In its sole assignment of error, CTIA claims that the trial court erred in denying its
motion to intervene. As an initial matter, however, we must determine whether this court has
jurisdiction.
{¶12} Under Section 3(B)(2), Article IV, Ohio Constitution, courts of appeals have
jurisdiction only to “affirm, modify, or reverse judgments or final orders of the courts of record
inferior to the court of appeals within the district.”
{¶13} As a result, ‘“[i]t is well-established that an order must be final before it can be
reviewed by an appellate court. If an order is not final, then an appellate court has no
jurisdiction.”’ Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861
N.E.2d 519, ¶ 14, quoting Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540
N.E.2d 266 (1989).
{¶14} ‘“An order of a court is a final appealable order only if the requirements of both
R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met.”’ Gehm at ¶ 15, quoting State ex rel.
Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101. App.R. 4(A) provides
that “a party who wishes to appeal from an order that is final upon its entry shall file the notice of
appeal required by App.R. 3 within 30 days of that entry.”
{¶15} CTIA claims that the trial court’s June 2017 order denying its motion to intervene
was an interlocutory order that merged into the court’s final December 2017 order granting partial
summary judgment; therefore, the June 2017 order was not a final order, and this court has
jurisdiction over the instant appeal. {¶16} As is applicable to this case, R.C. 2505.02 provides:
(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) [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment,
***
(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.
{¶17} Thus, for the trial court’s order denying CTIA’s motion to intervene to qualify as a
final appealable order, the following conditions must be met: either (1) the court’s June 2017
order is an order that affects a substantial right in the action that in effect determined the action
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[Cite as Cleveland v. State, 2018-Ohio-4779.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106685
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
STATE OF OHIO
DEFENDANT-APPELLANT
JUDGMENT: DISMISSED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-877584
BEFORE: Jones, J., Kilbane, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: November 29, 2018 ATTORNEYS FOR APPELLANT
For CTIA - The Wireless Association
Kathleen M. Trafford Andrew C. Emerson Porter Wright Morris & Arthur L.L.P. 925 Euclid Avenue, Suite 1700 Cleveland, Ohio 44115
J. Philip Calabrese 950 Main Avenue, Suite 500 Cleveland, Ohio 44113
L. Bradfield Hughes William Hunter West Porter Wright Morris & Arthur L.L.P. 41 S. High Street Columbus, Ohio 43215
For state of Ohio
Mike DeWine Ohio Attorney General
BY: Bridget C. Coontz Sarah E. Pierce Renata Y. Staff Assistant Attorneys General 30 East Broad Street, 16th Floor Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
For city of Cleveland
Barbara A. Langhenry Director of Law
BY: Gary S. Singletary Christopher J. Heltzel Assistant Law Directors City of Cleveland Department of Law Cleveland City Hall 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44114
For city of Brecksville and village of Glenwillow
David J. Matty City Law Director
BY: Mark B. Marong Shana Samson 1001 Lakeside Avenue, Suite 1410 Cleveland, Ohio 44140
LARRY A. JONES, SR., J.:
{¶1} Intervenor-appellant, CTIA – The Wireless Association (“CTIA”), appeals the trial
court’s denial of its motion to intervene in the underlying case. For the reasons that follow, we
dismiss this appeal as untimely filed.
{¶2} On March 20, 2017, the city of Cleveland filed suit against defendant-appellee state
of Ohio bringing several constitutional challenges against Senate Bill 331 (S.B. 331), which went
into effect March 21, 2017. The city of Brecksville and villages of Bratenahl and Glenwillow
subsequently moved to intervene as plaintiffs. The trial court granted their motions.
{¶3} In April 2017, CTIA, a group representing members of the U.S. wireless
communications industry, also moved to intervene. The trial court denied this motion on June
20, 2017. CTIA did not appeal the trial court’s decision.
{¶4} The parties agreed to bifurcate the claims in the case and to first address the claim
that S.B. 331 violated the single-subject rule. The trial court set a briefing schedule to address
that claim. The plaintiffs moved for partial summary judgment on the single-subject claim,
which the state opposed and moved for summary judgment in its favor. {¶5} On December 6, 2017, the trial court issued an opinion finding that S.B. 331 violated
the single-subject requirement and invalidated three Ohio laws: amendments to R.C. 4111.02,
amendments to R.C. Chapter 4939, and R.C. 4113.85.
{¶6} CTIA filed its notice of appeal in the instant case on January 3, 2018, stating in its
notice of appeal that it was appealing from the trial court’s orders of June 20, 2017 and December
6, 2017.
{¶7} The state of Ohio appealed the trial court’s December 6, 2017, decision. See
Cleveland v. State, 8th Dist. Cuyahoga No. 106688. This court determined that the appeals
would be treated as companion appeals and would be separately briefed, argued, and disposed of
by the same merit panel.
{¶8} In April 2018, CTIA filed a motion with this court to dismiss its appeal and vacate
the trial court’s June 20, 2017 order as moot. CTIA claimed that the single-subject challenges to
the micro-wireless provisions of S.B. 331 were rendered moot by the passage of House Bill 478 in
April 2018; therefore, CTIA would have no need to intervene in a dispute over what it considered
were now defunct micro-wireless provisions. The city opposed CTIA’s motion.
{¶9} This court denied CTIA’s motion:
Motion by appellant, CTIA – The Wireless Association, to dismiss the appeal and
vacate the trial court entry as moot is denied. Appellant may file a separate
motion to dismiss the appeal; however, this court denies appellant’s request to
dismiss the appeal and also find the trial court’s judgment denying appellant’s
motion to intervene as moot.
{¶10} Prior to oral argument on the two cases, we ordered the parties to brief the issue of
whether the trial court’s June 20, 2017 order denying CTIA’s motion to intervene was a final, appealable order sufficient to establish jurisdiction for appellate review. The parties briefed the
issue, with CTIA arguing that the June 20 order was not a final, appealable order. The state
contended that the order was final and appealable and therefore CTIA’s appeal is untimely.
{¶11} In its sole assignment of error, CTIA claims that the trial court erred in denying its
motion to intervene. As an initial matter, however, we must determine whether this court has
jurisdiction.
{¶12} Under Section 3(B)(2), Article IV, Ohio Constitution, courts of appeals have
jurisdiction only to “affirm, modify, or reverse judgments or final orders of the courts of record
inferior to the court of appeals within the district.”
{¶13} As a result, ‘“[i]t is well-established that an order must be final before it can be
reviewed by an appellate court. If an order is not final, then an appellate court has no
jurisdiction.”’ Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861
N.E.2d 519, ¶ 14, quoting Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540
N.E.2d 266 (1989).
{¶14} ‘“An order of a court is a final appealable order only if the requirements of both
R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met.”’ Gehm at ¶ 15, quoting State ex rel.
Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101. App.R. 4(A) provides
that “a party who wishes to appeal from an order that is final upon its entry shall file the notice of
appeal required by App.R. 3 within 30 days of that entry.”
{¶15} CTIA claims that the trial court’s June 2017 order denying its motion to intervene
was an interlocutory order that merged into the court’s final December 2017 order granting partial
summary judgment; therefore, the June 2017 order was not a final order, and this court has
jurisdiction over the instant appeal. {¶16} As is applicable to this case, R.C. 2505.02 provides:
(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) [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment,
***
(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.
{¶17} Thus, for the trial court’s order denying CTIA’s motion to intervene to qualify as a
final appealable order, the following conditions must be met: either (1) the court’s June 2017
order is an order that affects a substantial right in the action that in effect determined the action
and prevented a judgment; or (2)(a) the order must grant or deny a provisional remedy, as defined
in R.C. 2505.02(A)(3); (b) the order must determine the action with respect to the provisional
remedy so as to prevent judgment in favor of the party prosecuting the appeal; and (c) a delay in
review of the order until after final judgment would deprive the appellant of any meaningful or
effective relief. Gehm at ¶ 23, citing State v. Upshaw, 110 Ohio St.3d 189, 2006-Ohio-4253, 852
N.E.2d 711.
{¶18} In Gehm, the Ohio Supreme Court noted that because a motion to intervene is a
right recognized by Civ.R. 24, intervention constitutes a substantial right under R.C.
2505.02(A)(1) unless the purpose for which intervention was sought may be litigated in another
action. Gehm at ¶ 29, 37; Schaer v. Jones, 1st Dist. Hamilton No. C-160684, 2017-Ohio-7730, ¶ 12.
{¶19} Cleveland filed its complaint seeking a declaratory judgment that the passage of
S.B. 331 violated the state constitution. CTIA moved to intervene as a defendant arguing on
behalf of the state of Ohio to protect its alleged interest in the legislation. The plaintiffs opposed
CTIA’s motion to intervene, claiming that CTIA had no legally protectable interest to justify
intervention and the Ohio Attorney General could advocate the state’s position.
{¶20} CTIA admits that its only opportunity to protect its interest was through intervention
in the underlying matter; as CTIA stated in its appellate brief: “CTIA and its members have no
alternative means by which to protect their interests, other than to intervene in this action.”
(Appellant’s brief, p. 13).
{¶21} Thus, because the purpose for which intervention was sought can not be litigated in
another action and because the trial court denied the motion to intervene, the trial court’s June 20,
2017 journal entry denying CTIA’s motion was a final, appealable order under R.C.
2505.02(B)(1).
{¶22} The trial court’s order denying CTIA’s intervention was also a final, appealable
order pursuant to R.C. 2505.02(B)(4). A provisional remedy is defined in R.C. 2505.02(A)(3) as
a proceeding ancillary to an action. 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. Gen.
Elec. Capital Corp. v. Golf Club of Dublin, LLC, 187 Ohio App.3d 420, 2010-Ohio-2143, 932
N.E.2d 401, ¶ 40 (5th Dist.).
{¶23} The trial court’s order denying intervention qualifies as a denial of a provisional
remedy because CTIA’s attempted intervention was ancillary to the city’s underlying action for declaratory judgment against the state and the denial of intervention prevented CTIA from
becoming a party to that action.
{¶24} Finally, CTIA 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.
According to CTIA, it has a protectable interest in defending S.B. 331 from the single-subject
challenge and the trial court’s ruling denying intervention adversely affects CTIA’s rights, impairs
investments CTIA members have made and continue to make in their wireless technologies and
networks, and deprives CTIA members of the procedural and substantive rights the General
Assembly has created in S.B. 331. Because the single-subject issue was the sole issue decided
by the trial court and that is before this court on appeal in Cleveland v. State, 8th Dist. Cuyahoga
No. 106688, the only way that CTIA could be afforded a “meaningful or effective remedy by an
appeal” is for this court to reverse the trial court’s decision on the single-subject challenge in the
companion case and reverse the trial court’s decision on the motion to intervene. If this court
determines that the trial court erred in denying CTIA’s motion to intervene but did not err in its
decision on the single-subject challenge to S.B. 331, then CTIA is still precluded from defending
its interests in that portion of the action.
{¶25} We find, therefore, the requirements of R.C. 2505.02 have been met so that the July
20, 2017 judgment entry is a final, appealable order. CTIA failed to timely appeal the court’s
judgment pursuant to App.R. 4(A).
{¶26} Accordingly, this court is without jurisdiction to review the July 20, 2017 judgment
entry denying CTIA’s motion to intervene.
{¶27} Appeal dismissed.
It is ordered that appellee recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County
Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MARY EILEEN KILBANE, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR