Final Appealable Order: “Abandoning” Claims at Trial Prevents Appellate Jurisdiction, According to Ohio’s Eighth District

Posted on February 6th, 2017 by sutteroconnell

A claim abandoned—but not disposed of before appeal—prevents the appeal from being heard until the abandoned claim is resolved, according to Ohio’s Eighth District Court of Appeals, in Cleveland. Rojas v. Concrete Designs, 2017-Ohio-379.

Rojas involved a two-vehicle accident. The plaintiffs sued the driver of their vehicle and the driver of the other vehicle.  Before trial, the parties stipulated that the driver of the other vehicle was acting within the course and scope of his employment at the time of the accident.

The plaintiffs had two claims: (1) negligence and (2) negligent entrustment.  However , the plaintiffs never raised their negligence entrustment claim at trial.  Negligence was the only claim that appeared on the verdict form.  Ultimately, the jury found in favor of the plaintiffs and against English and Concrete Designs awarding the Rojas plaintiffs $34.6 million in damages and the plaintiff Torres $7.8 million.

Before the appeal was argued, the Eighth District questioned whether the jury verdict—and the court’s subsequent judgment—was “final and appealable.” Under Ohio law, appellate courts can only review orders that are both “final” and “appealable”.  O.R.C. § 2505.02(B)(1) defines “final and appealable” as “an order [1] that affects the substantial right in an action [2] that in effect determines the action and [3] prevents a judgment”.   To classify as “final and appealable”, an order must resolve all of the plaintiff’s claims against all of the defendants.   In Rojas, the trial court’s final order did not address the plaintiffs’ negligent entrustment claim, which—to the Eighth District—appeared “unresolved.”

The plaintiffs advanced two arguments to preserve their appeal. (1) they “abandoned” the negligent entrustment claim by not pursuing it at trial and (2) the jury verdict rendered the negligent entrustment claim “moot.”  The plaintiffs pointed out that they never submitted evidence, requested jury instructions, or submitted verdict forms related to negligent entrustment.  Next, the plaintiffs argued that the negligent entrustment claim was “moot” due to the jury’s finding of negligence.  Both claims arose from the same set of facts.  And the negligent entrustment claim—if found to have merit—would not have increased the jury’s damages award.

A split panel of the Eighth District rejected both arguments. Rojas held that choosing not to pursue a claim is not the same as obtaining a judgment by way of court order.  “To allow a court to find implicitly that one party abandoned his claim would…significantly alter the definition of a final, appealable order.” Id. at ¶6. Rojas also cautioned against deciding whether certain claims were “moot.” Rojas held that appellate courts should not be in the business of issuing decisions that “make final what was previously not final.” Id. at ¶12.  The Court asked:  What would happen if the case gets remanded back to the trial court?  Would the plaintiffs’ negligent entrustment claim still be actionable?  Could an appellate court’s decree of “mootness” bar the plaintiffs from pursuing a negligent entrustment claim if the case is re-tried?

Rojas concluded that appellate jurisdiction should not be so “fluid.” The trial court—and the parties—need formal and final dispositions of all claims, and the appellate court should not be making “mootness” determinations or deciding whether certain claims were “abandoned.”  Because the negligent entrustment claim remained unresolved—and because there was no order or amended pleading dismissing the claim—there was no final, appealable order.

Judge Eileen Kilbane dissented. She reasoned that the jury verdict “resolved all liability issues between the parties.”   Id. at ¶24.  “By not pursuing the negligent entrustment theory at trial, the plaintiffs abandoned that claim.  When the trial court entered judgment on the jury’s verdict…there were no remaining claims for the court to resolve.” Id. The plaintiffs forever “waived their right to further adjudicate” their negligent entrustment claim—even if the case is remanded on appeal and re-tried. Id.

Obtain “Final Resolution.”   Attorneys should review the pleadings before trial and amend their pleadings to dismiss claims or withdraw issues that do not require jury determinations.  Even after a verdict, attorney should  be sure that all claims are resolved.  Here, the plaintiffs could have dismissed their negligent entrustment claim by amending their complaints or by dismissing the claim, even after the judgment was entered.  If they did so while the appeal was pending, the Court of Appeals likely would have merged the appeals.