Miller v. First International Fidelity & Trust Building, Ltd.

113 Ohio St. 3d 474

• Court: Ohio Supreme Court
• Decided: June 6, 2007
• Docket: No. 2006-0373
• Status: Published

Opinions

Pfeifer, J.

{¶ 1} In October 2004, a jury returned a verdict in favor of appellee, Vivian Miller, who subsequently filed a motion for prejudgment interest. See R.C. 1343.03(C). Appellant, First International Fidelity Guarantee Building Partnership, P.L.L., appealed from the journal entry overruling its motion for judgment notwithstanding the verdict or for a new trial, before the prejudgment-interest motion had been resolved. The court of appeals dismissed the appeal for lack of a final, appealable order. The issue before us is whether a journalized jury verdict is a final, appealable order when a motion for prejudgment interest has been filed and remains pending.

{¶ 2} Under R.C. 2505.02:

{¶ 3} “(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:

{¶ 4} “(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment.”

{¶ 5} A “substantial right” is “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). For purposes of this case, we will assume that the jury’s verdict deprived First International Fidelity of a substantial right.

{¶ 6} To be final, however, “an order must also determine an action and prevent a judgment.” Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 88, 541 N.E.2d 64, citing Gen. Elec. Supply Co. v. Warden Elec., Inc. (1988), 38 Ohio St.3d 378, 528 N.E.2d 195, syllabus; R.C. 2505.02(B)(1). “For an order to determine the action and prevent a judgment for the party appealing, it must dispose of the whole merits of the cause or some separate and distinct branch thereof and leave nothing for the determination of the court.” Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities v. Professionals Guild of Ohio (1989), 46 Ohio St.3d 147, 153, 545 N.E.2d 1260. See State ex rel. Downs v. Panioto, 107 Ohio St.3d 347, 2006-Ohio-8, 839 N.E.2d 911, ¶20.

{¶ 7} “Generally, orders determining liability [that defer] the issue of damages are not final appealable orders under R.C. 2505.02 because they do not determine the action or prevent a judgment.” State ex rel. White v. Cuyahoga Metro. Hous. Auth. (1997), 79 Ohio St.3d 543, 546, 684 N.E.2d 72. The White opinion recognized an exception to this general rule “where the computation of damages is mechanical and unlikely to produce a second appeal because only a ministerial task similar to assessing costs remains.” Id. Unlike in the White case, the trial court in this case did not defer the issue of damages, but White is nevertheless instructive. Prejudgment interest is neither damages nor an easily computed cost. Determining whether to grant prejudgment interest is not a merely ministerial task; it requires the trial court to find that “the party required to pay the judgment failed to make a good faith effort to settle” and that “the party to whom the judgment is to be paid did not fail to make a good faith effort to settle the case.” Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 658, 635 N.E.2d 331. See R.C. 1343.03(C). Determining whether prejudgment interest should be awarded requires judicial fact-finding and the exercise of judicial discretion. We conclude that, as between damages and costs, prejudgment interest is more in the nature of damages.

{¶ 8} First International Fidelity argues that allowing an appeal before the determination of prejudgment interest will promote judicial economy. We disagree. Judicial economy will be promoted only when the appellant succeeds on appeal. When the appellant fails on appeal, the cause would be remanded for a determination of prejudgment interest. That determination would also be subject to appeal, to the same court of appeals. See White, 79 Ohio St.3d at 546, 684 N.E.2d 72 (exception to general rule does not apply when computation of damages is likely to result in second appeal). We conclude that judicial economy would be better served by allowing the trial court to determine whether prejudgment interest should be awarded before an appeal can be filed. Then, on appeal, all appealable issues will be before the court of appeals.

{¶ 9} We are mindful of First International Fidelity’s concern that during discovery in the R.C. 1343.03(C) proceeding for prejudgment interest, an appellee could discover information that would prejudice the appellant’s appeal. We have already addressed this concern. In Moskovitz, 69 Ohio St.3d at 661-662, 635 N.E.2d 331, we stated that many privileged matters are discoverable in an R.C. 1343.03(C) proceeding — otherwise it would be virtually impossible to determine whether there had been a good-faith effort to settle. We also stated, however, that matters that “go directly to the theory of defense” remain privileged. Id. at 662, 635 N.E.2d 331. Accordingly, Miller’s ability to obtain discovery of otherwise privileged matters will not assist it, or prejudice First International Fidelity, during the appellate process.

{¶ 10} Finally, First International Fidelity directs us to the journal entry appealed from in this case, in which the trial judge determined that there was “no just reason for delay.” First International Fidelity argues that such a finding renders the jury verdict in this case a final, appealable order, citing Civ.R. 54(B). But that rule does not apply, because this case does not involve the entry of judgment “as to one or more but fewer than all of the claims or parties.” Civ.R. 54(B). It is only in cases in which fewer than all the claims or fewer than all the parties are disposed of in the entry that the phrase “no just reason for delay” has meaning. In this case, judgment was entered on all claims and against all parties; thus, the words “no just reason for delay” do not apply and cannot transform the judgment into a final, appealable order. Hitchings v. Weese (1997), 77 Ohio St.3d 390, 391, 674 N.E.2d 688 (Resnick, J., concurring) (“ ‘no just reason for delay’ language could not transform an order that was not final for purposes of R.C. 2505.02 into a final appealable order for Civ.R. 54(B) purposes”). See State ex rel. A & D Limited Partnership v. Keefe (1996), 77 Ohio St.3d 50, 671 N.E.2d 13.

{¶ 11} In this case, a postjudgment matter — the motion for prejudgment interest — remained to be determined. The judgment entry did not, therefore, “dispose of the whole merits of the cause or some separate and distinct branch thereof and leave nothing for the determination of the court.” (Emphasis added.) Hamilton Cty. Bd. of Mental Retardation, 46 Ohio St.3d at 153, 545 N.E.2d 1260. This fact alone is sufficient for us to conclude that the jury verdict in this case is not a final, appealable order. We hold that a journalized jury verdict is not a final, appealable order when a motion for prejudgment interest has been filed and remains pending. We affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., O’Connor and Cupp, JJ., concur. Lundberg Stratton, O’Donnell and Lanzinger, JJ., dissent.