[Cite as New Waste Concepts, Inc. v. Applegate Insulation, L.L.C.   , 2019-Ohio-283.]


                                       COURT OF APPEALS
                                       WOOD COUNTY, OHIO
                                    SIXTH APPELLATE DISTRICT


 NEW WASTE CONCEPTS, INC.,                               JUDGES:
                                                         Hon. W. Scott Gwin, P.J
         Plaintiff – Appellee                            Hon. William B. Hoffman, J.
                                                         Hon. Earle E. Wise, Jr., J.
 -vs-
                                                         Case No. 2018-WD-0070
 APPLEGATE INSULATION LLC, ET AL.

        Defendants – Appellants                          O P I N IO N




 CHARACTER OF PROCEEDINGS:                               Appeal from the Wood County Court of
                                                         Common Pleas, Case No. 2018 CV 0205



 JUDGMENT:                                               Dismissed

 DATE OF JUDGMENT ENTRY:                                 January 29, 2019


 APPEARANCES:


 For Plaintiff-Appellee                                  For Defendants-Appellants

 CARL C. IRELAND                                         ANDREW R. MAYLE
 Spitler Huffman, LLP                                    RONALD J. MAYLE
 932 Dixie Highway                                       Mayle LLC
 Rossford, Ohio 43460                                    P.O. Box 263
                                                         Perrysburg, Ohio 43552
Wood County, Case No. 2018-WD-0070                                                            2

Hoffman, J.
          {¶1}     Appellants Applegate Insulation, LLC and Applegate Holdings, LLC appeal

the judgment entered by the Wood County Common Pleas Court denying their motion to

dismiss Appellee New Waste Concepts, Inc.’s complaint, or in the alternative to stay the

action while Appellee recommenced it in Michigan.

                                          STATEMENT OF THE CASE1

          {¶2}     Appellee filed the instant action against Appellants for declaratory judgment

and damages for tortious interference with a contractual and business relationship.

Appellants filed a motion to dismiss or in the alternative to stay the action, arguing a forum

selection clause in the contract between the parties required the action to be filed in

Michigan. The court overruled the motion to dismiss or stay the action. It is from the

August 9, 2018 judgment overruling their motion Appellants prosecute this appeal,

assigning as error:



                   THE TRIAL COURT IN OHIO ERRED BY NOT ENFORCING A

          FORUM-SELECTION CLAUSE STATING THAT, “THE PARTIES AGREE

          THAT ANY ACTIONS SHALL BE BROUGHT TO THE COURT OF

          APPROPRIATE JURISDICTION IN INGHAM COUNTY, MICHIGAN OR

          U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN.



          {¶3}     As a preliminary matter, we must first determine whether the order under

review is a final appealable order. If an order is not final and appealable, then we do not



1   A rendition of the facts is unnecessary to our resolution of the appeal.
Wood County, Case No. 2018-WD-0070                                                          3

have jurisdiction to review the matter and must dismiss the appeal. See Gen. Acc. Ins.

Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).

       {¶4}     To be final and appealable, an order must comply with R.C. 2505.02(B),

which provides, in pertinent part:



                (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:

                (1) An order that affects a substantial right in an action that in effect

       determines the action and prevents a judgment;

                (2) An order that affects a substantial right made in a special

       proceeding or upon a summary application in an action after judgment.

                (3) An order that vacates or sets aside a judgment or grants a new

       trial;

                (4) An order that grants or denies a provisional remedy and to which

       both of the following apply:

                (a) The order in effect determines the action with respect to the

       provisional remedy and prevents a judgment in the action in favor of the

       appealing party with respect to the provisional remedy.

                (b) The appealing party would not be afforded a meaningful or

       effective remedy by an appeal following final judgment as to all proceedings,

       issues, claims, and parties in the action.
Wood County, Case No. 2018-WD-0070                                                       4


       {¶5}   The Fifth District Court of Appeals has held a judgment denying a motion to

change venue or in the alternative dismiss an action based on a forum selection clause

in a contract is not a final, appealable order:



              The only possible applicable paragraph is paragraph 4, regarding

       provisional remedies. “‘Provisional remedy’ means a proceeding ancillary to

       an action, including, but not limited to, a proceeding for a preliminary

       injunction, attachment, discovery of privileged matter, or suppression of

       evidence.” R.C. 2505.02(A)(3). The statutory definition does not specifically

       refer to proceedings to transfer venue nor are any of the listed proceedings

       akin to a transfer of venue. See Duryee, supra. The basic purpose of R.C.

       2505.02(A)(3) in categorizing certain types of preliminary decisions of a trial

       court as final, appealable orders is the protection of one party against

       irreparable harm by another party during the pendency of the litigation. Id.

       We find that a decision by a trial court to deny a request for change of venue

       does not involve the same degree of risk of irreparable harm to a party as

       the decisions made in the types of actions listed under 2505.02(A)(3). The

       types of provisional remedies listed under 2505.02(A)(3) include decisions

       that, made preliminarily, could decide all or part of an action or make an

       ultimate decision on the merits meaningless or cause other irreparable

       harm. For instance, a preliminary injunction could be issued against a high

       school football player preventing him from playing football his senior year

       based on recruiting violations. The trial court could grant the attachment of
Wood County, Case No. 2018-WD-0070                                                    5


     property for which the owner has a ready buyer. Discovery of privileged

     material could force a person to divulge highly personal and sensitive

     information. If evidence critical to the prosecution of a criminal case is

     suppressed, the state could lose any meaningful chance at successful

     prosecution of a criminal. The decision to deny a change of venue does not

     result in any of the types of irreparable harm just listed. There is an

     adequate legal remedy from a decision denying a change of venue, after

     final judgment. In other words, it may be expensive to get the cat back in

     the bag, if a trial court errs when it denies a change of venue, but it can be

     done. Whereas, when the types of decisions listed in 2505.02(A)(3) are

     made, the cat is let out of the bag and can never be put back in. Therefore,

     denial of a request to change venue is not a final, appealable order. In

     accord, Wilson v. Kemp (Nov. 24, 1999), Scioto App. No. 99CA2667,

     unreported, 1999 WL 1125111. The Second District Court of Appeals has

     also considered whether venue questions are final, appealable orders.

     While the Second District Court found that a venue order can qualify as a

     provisional remedy because it prevents a judgment in favor of the appealing

     party with respect to the venue question, it found that venue decisions were

     not final, appealable orders since the party is afforded an effective remedy

     by way of appeal after final judgment. Jetter v. Abbott (July 31, 2000),

     Montgomery App. No. 17888, unreported (citing State ex rel. Banc One

     Corp. v. Walker (1999), 86 Ohio St.3d 169, 173, 712 N.E.2d 742, venue

     orders do not normally affect a substantial right, because appeal after
Wood County, Case No. 2018-WD-0070                                                        6


       judgment is an adequate legal remedy). Accordingly, we find that the

       December 6, 1999, Judgment Entry is not a final, appealable order.



       {¶6}   Mansfield Family Restaurant v. CGS Worldwide, Inc., 5th Dist. Richland No.

00-CA-3, 2000 WL 1886226, *2.

       {¶7}   In finding a judgment which granted a motion to stay an action to allow

refiling in Massachusetts to be a final, appealable order, this Court distinguished the

decision of the Fifth District in Mansfield Family Restaurant as follows:



              The adequate, although expensive, remedy envisioned in Mansfield

       Family Restaurant is that after final resolution of the case, an Ohio appellate

       court could review the trial court's decision not to enforce the forum

       selection clause, find that it was error and reverse, thereby allowing the

       parties to litigate their dispute again in another state.

              The difference between Mansfield Family Restaurant and the case

       presently before us is that if Overhead, Inc. cannot appeal now from the trial

       court's decision that the dispute must be litigated in Massachusetts, then

       after the case is resolved in the Massachusetts court, Overhead, Inc. will

       have no forum to turn to which can review the original decision enforcing

       the forum selection clause. A Massachusetts appellate court would not have

       jurisdiction to review an Ohio court's decision and it would be too late to file

       an appeal in the Ohio appellate court since the case in Ohio was not merely

       transferred to Massachusetts, but was actually dismissed.
Wood County, Case No. 2018-WD-0070                                                      7


             Therefore, we find that under R.C. 2505.02(B)(4) the trial court's

      order is final and appealable. The proceeding in the trial court determining

      whether the case should be litigated in Ohio or in Massachusetts is ancillary

      to the action and thus is a provisional remedy pursuant to R.C.

      2505.02(A)(3). Since the order granting the “provisional remedy,” i.e.,

      enforcing the forum selection clause, makes a full determination of the issue

      and prevents a judgment in favor of appellant on this issue it fulfills R.C.

      2505.02(B)(4)(a). Finally, R.C. 2505.02(B)(4)(b) is fulfilled because

      appellant would have no remedy through an appeal after the case has been

      heard in Massachusetts since there would be no appellate court with

      jurisdiction to decide the issue.



      {¶8}   Overhead, Inc. v. Standen Contracting, 6th Dist. Lucas No. L-01-1397,

2002-Ohio-1191, *3.

      {¶9}   We find the judgment appealed from in the instant case is not a final,

appealable order, based on the reasoning set forth in Mansfield Family Restaurant, supra.

As this Court noted in Overhead, Inc., supra, when the motion to dismiss or transfer venue

to another state is overruled, the party has an opportunity for review of the order at the

end of the case. Thus the instant case is distinguishable from Overhead, Inc.
Wood County, Case No. 2018-WD-0070                                                     8


      {¶10} As we do not have jurisdiction over the appeal, the appeal is dismissed.




                                            HON. WILLIAM B. HOFFMAN


                                            HON. W. SCOTT GWIN


                                            HON. EARLE E. WISE, JR.




By: Hoffman, J.

Gwin, P.J. and

Wise, Earle, J. concur
              IN THE COURT OF APPEALS FOR WOOD COUNTY, OHIO
                         SIXTH APPELLATE DISTRICT


NEW WASTE CONCEPTS, INC.,                  :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :          JUDGMENT ENTRY
                                           :
APPELGATE INSULATION LLC, ET AL.,          :          January 29, 2019
                                           :
       Defendants-Appellants               :          Case No. 2018-WD-0070


       For the reason stated in our accompanying Opinion, this appeal is dismissed.

Costs assessed to Appellants.




                                               HON. WILLIAM B. HOFFMAN


                                               HON. W. SCOTT GWIN


                                           HON. EARLE E. WISE, JR.
