Opinion
No. 00 CA 41.
Released: November 1, 2000.
Alfred E. Schrader, 441 Wolf Ledges Parkway, Suite 400, P.O. Box 0079, Akron, Ohio 44309-0079, COUNSEL FOR APPELLANT.
Willard E. Bartel, MILLER, STILLMAN BARTEL, 2000 East Ninth Street, Suite 1100, Cleveland, Ohio 44115, COUNSEL FOR APPELLEE.
DECISION JUDGMENT ENTRY
Appellee, Timothy Huck, filed a motion to dismiss pursuant to CIV.R. 12(H)(3) asserting that this court lacks jurisdiction to consider this appeal because the order from which this appeal is taken denied appellant's Motion for Summary Judgment. Appellant, Muskingum Township filed a Response stating that the appeal was taken pursuant to R.C. 2744.02(C).
Appellee contends that since Am.Sub.H.B. 350, including R.C. 2744.02, was declared unconstitutional by the Ohio Supreme Court in State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451 any appeal taken pursuant to R.C. 2744.02(C) must be dismissed for lack of jurisdiction. The Sheward decision found that Am.Sub.H.B. No. 350, which enacted, R.C. 2744.02(C), was unconstitutional in toto. This finding of unconstitutionality effectively deprives this Court of its jurisdictional basis for reviewing an appeal based on R.C. 2744.02(C). See, Huck v. Muskingum Township (Dec. 22, 1999), Washington App. No. 99CA13, unreported. See, also, Fannin v. City of Portsmouth (Feb. 15, 2000), Scioto App. No. 99CA2661, unreported.
Appellant asserts that there are several cases presently before the Ohio Supreme Court raising this precise issue and urges this court to hold a decision in abeyance until the issue is resolved by that Court. We decline to do so.
Upon consideration, and pursuant to this court's previous decision in Huck as well as our decision in Fannin, supra, this appeal is DISMISSED.
Appellee has also requested that this court find this appeal to be frivolous pursuant to App.R. 23. We decline to do so.
APPEAL DISMISSED.
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED and that appellee recover of appellant costs herein taxed.
The Court finds that there were reasonable grounds for this appeal.
It is further ordered that a special mandate issue out of this Court directing the Meigs County Common Pleas Court 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.
Exceptions.
Harsha, J. and Evans, J. Concur
____________________________________ Peter B. Abele, Administrative Judge