Opinion
No. 97 C.A. 174.
September 29, 1999.
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, Case No. 96 CV 3165.
JUDGMENT: Appeal Dismissed For Lack of An Appealable Order.
APPEARANCES:
Atty. Larry D. Wilkes, Wilkes, Wilkes Welsh, For Plaintiff-Appellee.
Atty. Gust Callas, Atty. Robert E. Soles, Jr., For Defendants-Appellants.
JUDGES: Hon. Gene Donofrio, Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite.
JOURNAL ENTRY AND OPINION
This cause comes on appeal from a July 8, 1997 judgment of the Common Pleas Court overruling political subdivision Beaver Township's motion for summary judgment. Although this matter has been fully briefed, on August 3, 1998, this court issued an order holding this appeal in abeyance pending a decision on the issue before the Ohio Supreme Court whether such judgment constitutes an appealable order.
Although the Ohio Supreme Court has not issued a decision in the underlying case which prompted the order in abeyance, it has issued a decision in State, ex rel. Ohio Academy of Trial Lawyers, et al. v. Sheward, et al., (1999), 86 Ohio St.3d 451, 715 N.E.2d 1062. That decision held H.B. 350 unconstitutional in toto. The applicable statutory sections (R.C. 2744.02 (C) and R.C. 2501.02), which would support an argument that such order is appealable, were enacted as part of H.B. 350. Having been ruled unconstitutional, we therefore hold that the overruling of a motion for summary judgment filed by a political subdivision is not a final appealable order.
Prior order holding this appeal in abeyance is vacated and set aside. Appeal dismissed for lack of an appealable order. Costs taxed against appellant. Copy to counsel of record and Judge James Evans.
______________________________ GENE DONOFRIO, JUDGE
______________________________ JOSEPH J. VUKOVICH, JUDGE
______________________________ CHERYL L. WAITE, JUDGE