Summary
holding that the concept of only reviewing "final orders" is based on the rationale that the court making an order that is not final is retaining jurisdiction for some further proceedings
Summary of this case from Weimerskirch v. CoakleyOpinion
Nos. 70-392 and 70-393
Decided July 21, 1971.
Service of summons — R.C. 2307.382 and 2307.383 — No retroactive application, when — Service on nonresident corporation — Effect, where no minimal contacts between Ohio and corporation — Limitation of actions — Defendant absent from state — Statute not tolled, when — Injury in foreign jurisdiction — Evidence — Appeal — Final order — Quashing service of summons — Reversal by Court of Appeals — Final appealable orders.
1. A judgment of a trial court sustaining motions to quash service of summons and dismissing defendants as parties to the action is a final appealable order, as is likewise the ruling of a Court of Appeals reversing such order.
2. Where there is no proof of record establishing the existence of minimal contacts between Ohio and a nonresident corporation at the time service of summons on the corporation was made under R.C. 2307.382 and 2307.383, a motion to quash such service should be sustained.
3. Where an injury occurs in a foreign jurisdiction, the running of the statute of limitations is not tolled by the absence of the defendant from the state of Ohio. ( wentz v. Richardson, 165 Ohio St. 558, followed.)
4. R.C. 2307.382 and 2307.383 are not applicable to a cause of action which was both filed and barred by the statute of limitations prior to the effective date of such sections.
APPEALS from the Court of Appeals for Cuyahoga County.
On December 6, 1963, the plaintiffs in these cases consolidated for hearing, Richard Lantsberry and Robert P. Wise, filed petitions in the Court of Common Pleas of Cuyahoga County, alleging that the failure of a portable heater on a camping trip in the state of Pennsylvania on December 9, 1961, caused them to suffer injuries consisting of frostbite. Petitions were filed in the Common Pleas Court of Cuyahoga County three days before the running of the statute of limitation in 1963. The original defendants in these actions included the Tilley Lamp Company, Limited, of London, England. The record indicates that service was obtained on all of the codefendants except the Tilley Lamp Company, Limited, and that service was not obtained upon the latter within 60 days, as then required by R.C. 2305.17. Nearly two years later, R.C. 2307.382 and 2307.383, commonly called the long-arm statutes, were enacted, becoming effective September 28, 1965. Under those sections, the plaintiffs filed an alias praecipe, naming, among other new defendants, the Tilley Lamp Company, Limited, Belfast, North Ireland, and the Tilley Lamp Company (U.S.A.), Limited.
Under the long-arm statutes, on December 9, 1965, plaintiffs filed alias praecipes and service was made on the Tilley Lamp Company, Limited, of London, England, and two new defendants, the Tilley Lamp Company, Limited, Belfast, North Ireland, and the Tilley Lamp Company (U.S.A.), Limited. In each case, the three Tilley Lamp companies filed a motion to quash service of summons, which the Common Pleas Court of Cuyahoga County, in 1966, overruled. Upon appeal, the Court of Appeals for Cuyahoga County, in 1967, overruled plaintiffs' motions to dismiss the appeal on the ground that the overruling of the motion to quash is not a final appealable order, and found that there was no jurisdiction over the Tilley Lamp companies and reversed the judgments of the Common Pleas Court.
Upon appeal, this court ( 14 Ohio St.2d 41) held that an order overruling the motion to quash was not a final appealable order and that the Court of Appeals had no jurisdiction to review.
Upon return of the cases, the Common Pleas Court vacated its prior rulings and sustained the motions to quash service of summons and dismissed the three Tilley Lamp companies as parties. On May 19, 1970, the Court of Appeals reversed the judgments of the Court of Common Pleas and remanded the causes to the trial court, with instructions to overrule the motions to quash.
The cases are now before this court pursuant to the allowance of motions by the Tilley Lamp Companies to certify the records in both cases.
Mr. Ellis B. Brannon and Mr. Joseph M. Mancini, for appellees.
Messrs. Spieth, Bell, McCurdy Newell and Mr. Ron Tonidandel, for appellants.
Appellees claim that since the Court of Appeals ordered the Common Pleas Court to overrule the motions to quash, that under our prior decision ( 14 Ohio St.2d 41), "there should be no question that the law of Ohio is that a motion to quash is not a final appealable order."
A final order which may be reviewed, affirmed, modified, or reversed, with or without retrial, is "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." R.C. 2505.02. The latter portion of that section relating to "an order vacating or setting aside a judgment and ordering a new trial" was declared to be "not a final determination of the rights of the parties" and did "not constitute a judgment or final order" and therefore was "in conflict with Section 6. Article IV of the Ohio Constitution." Green v. Acacia Mutual Life Ins. Co. (1951), 156 Ohio St. 1. Green was overruled in Price v. McCoy Sales Service (1965), 2 Ohio St.2d 131.
It is clear, from those decisions and the opinion of Justice Leach in Rohde v. Farmer (1970), 23 Ohio St.2d 82, that the entire concept of "final orders" is based upon the rationale that the court making an order which is not final is thereby retaining jurisdiction for further proceedings. A final order, therefore, is one disposing of the whole case or some separate and distinct branch thereof.
Here, the orders of the Common Pleas Court did not merely sustain the motions to quash service of summons, but also dismissed the three Tilley Lamp defendants. Such dismissal thus disposed of the cases as to such defendants. (Civil Rule 54 [B] has no application to these cases since the judgments of the trial court were entered prior to the effective date of the new Civil Rules.)
The orders of the Court of Appeals, reversing the judgments of the Common Pleas Court and remanding the causes to the Common Pleas Court, with instructions to overrule the motions to quash, are final dispositions of the cases so far as the Court of Appeals is concerned. The orders of the Court of Appeals then become final orders, subject to appeal to this court. The same was true in the prior proceedings with regard to the judgments of the Court of Appeals which were reversed by this court.
We turn now to the question of whether the Ohio long-arm statute can be applied retroactively to validate service on a cause of action which accrued prior to the adoption of the long-arm statute, even though the petition was filed prior to the adoption of the long-arm statute. This court held, in paragraph one of the syllabus of Kilbreath v. Rudy (1968), 16 Ohio St.2d 70 :
"Section 28, Article II of the Ohio Constitution prohibiting the passage of retroactive laws, has application to laws affecting substantive rights, and has no reference to laws of a remedial nature providing rules of practice, courses of procedure or methods of review * * *."
In Kilbreath, we held further, in paragraph three of the syllabus:
"Sections 2307.382 and 2307.383, Revised Code, which expand the personal jurisdiction of local courts, are laws of a remedial nature, and as such are applicable to causes of action accrued, but not filed, before their effective date, September 28, 1965."
Although in Kilbreath the petition had not been filed until after the adoption of the long-arm statute, we fail to see any distinguishing difference between a case filed after the adoption of the long-arm statute, or before as in the cases now under consideration.
The next matter for our consideration is the failure of plaintiffs to plead any fact supporting the requirements of the long-arm statute for obtaining jurisdiction over the three Tilley Lamp defendants. We note the affidavit filed on behalf of the three Tilley Lamp defendants in the Common Pleas Court, which recites:
"All of said defendants are foreign corporations located outside of the state of Ohio; that said defendants do not manufacture goods in Ohio, do not ship goods into Ohio and do not transact business in Ohio, and never have; that said defendants are not contracting to supply any services or goods in Ohio; that said defendants are not residents of Ohio, are not in Ohio and never have been; that said defendants do not design, manufacture, assemble or do anything else in Ohio, and never have; that said defendants do not have an interest in, or use, or possess any real property in Ohio; and that said defendants are not contracting to insure any person, property, or risk located within Ohio.
"Affiant further says that C.L. Shively Company is not an agent of any of said defendants and never has been."
There is no proof in the record, either by way of counter-affidavits or sworn testimony, which would establish "minimal contacts" in Ohio of the Tilley Lamp defendants which are essential before jurisdiction can be acquired. Appellees assert that "it is absurd to claim that these jurisdictional facts had to be pleaded in 1963," two years before the effective date of the long-arm statute. However, such requirement might well have been accomplished, if facts do exist, by filing amended petitions alleging such minimal contacts, or by the filing of affidavits or other documents establishing such minimal contacts at the time when plaintiffs attempted to effectuate service on December 9, 1965.
Plaintiffs allege in their petitions that the injuries herein involved occurred "on a hunting trip near Renovo, Pennsylvania," "on or about the ninth day of December, 1961." The Ohio long-arm statute became effective September 28, 1965, and in each case summons was issued for service upon the three Tilley Lamp defendants on December 9, 1965. Assuming service under the long-arm statute, the two-year statute of limitations applicable (R.C. 2305.10) had expired with respect to plaintiffs' actions on December 9, 1963. Counsel for appellees claim however that under the provisions of the "savings clause" in R.C. 2305.15, the running of the statute of limitations was tolled because Tilley Lamp was not within the state of Ohio. Where the injury occurs in a foreign jurisdiction the running of the statute of limitations is not tolled by the absence of the defendant from the state of Ohio. Here, the alleged injuries of the plaintiffs occurred in the state of Pennsylvania.
In paragraph two of the syllabus of Wentz v. Richardson (1956), 165 Ohio St. 558, we held:
"Section 11228, General Code [R.C. 2305.15], which provides for the tolling of statutes of limitations in described contingencies contemplates causes of action which arise in Ohio and does not embrace causes of action which originate in foreign jurisdictions."
Although a motion to quash is not the proper method of raising the question of the running of the statute of limitation, since it is apparent that the statute of limitation had run and therefore it would appear that substantial justice had been accomplished in the Common Pleas Court, it would be futile to remand the cases to the Common Pleas Court for a more technically correct ruling.
Based upon the failure of proof in the record establishing minimal contacts in Ohio by the Tilley Lamp defendants at or about the time of the alleged injuries, and because the period of limitations as provided in R.C. 2305.10 had expired with respect to plaintiffs' actions on December 9, 1963, the judgments of the Court of Appeals are reversed and those of the Common Pleas Court are affirmed.
Judgments reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, STERN and LEACH, JJ., concur.
STRAUSBAUGH, J., of the Tenth Appellate District, sitting for CORRIGAN, J.