[Cite as Martynyszn v. Budd, 2011-Ohio-6785.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

JOHN MARTYNYSZYN,                               )
                                                )   CASE NO. 11 MA 191
        PLAINTIFF-APPELLEE,                     )
                                                )
        - VS -                                  )      OPINION
                                                )       AND
MICHAEL BUDD, et al.,                           )   JUDGMENT ENTRY
                                                )
        DEFENDANTS-APPELLANTS.                  )

CHARACTER OF PROCEEDINGS:                           Civil Appeal from Common Pleas
                                                    Court, Case No. 01 CV 2110.

JUDGMENT:                                           Appeal Dismissed.

APPEARANCES:
For Plaintiff-Appellee:                             Attorney John Juhasz
                                                    7081 West Boulevard, Suite 4
                                                    Youngstown, OH 44512

                                                    Attorney Gary L. VanBrocklin
                                                    Attorney James Gentile
                                                    The Liberty Building
                                                    42 North Phelps Street
                                                    Youngstown, OH 44503

For Defendants-Appellants:                          Attorney Daniel T. Downey
                                                    Weston Hurd
                                                    10 W. Broad Street, Suite 2400
                                                    Columbus, OH 43215



JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                    Dated: December 7, 2011
[Cite as Martynyszn v. Budd, 2011-Ohio-6785.]


PER CURIAM:

          {¶1}     This matter comes on appeal from an October 19, 2011 judgment of the

Mahoning County Court of Common Pleas which denied appellants' (Sheriff Randall

Wellington and former Major Michael Budd) motion for leave to file a motion for

reconsideration of a prior order denying their motion for summary judgment. For the

reasons that follow we dismiss this appeal for lack of a final appealable order. Such
                                                                                     1
ruling moots appellants' emergency motion to stay pending appeal.

          {¶2}     The appellants here had previously attempted to appeal a November 28,

2003 order denying their motion for summary judgment premised on federal qualified

immunity and statutory immunity under R.C. 2744.02(c).

          {¶3}     In an opinion issued August 31, 2004 this Court held that the decision

denying summary judgment based on qualified immunity and statutory immunity was not

a final appealable order. Martynyszyn v. Budd, 7th Dist. 2004-Ohio-4824.

          {¶4}     Regarding qualified immunity this Court reasoned that " * * * denial of a

summary judgment for qualified immunity merely postpones the final disposition of both

the immunity claim and the merits of the case until trial. Appellants retain all substantial

rights." Budd, supra at ¶17. Other appellate districts share this view. Budd at ¶17.

          {¶5}     Statutory immunity under paragraph (c) to R.C. 2744.02 was added in

Am.Sub.H.B. 350, effective January 27, 1997.                     However, that provision was ruled

unconstitutional in its entirety on August 16, 1999 in State ex rel. Ohio Academy of Trial

Lawyers v. Sheward (1999), 80 Ohio St.3d 451, 715 N.E.2d 1062. That ruling was


1
    We further note that the trial court continued the trial scheduled for November 28, 2011. This ruling also
                                                                                        -2-

addressed in 2000 S.B. No. 106 which again added paragraph (c) to R.C. 2744.02.

However, the addition to the statute did not become effective until April 3, 2003. And in

the uncodified section of the statute the General Assembly specifically stated that R.C.

2744.02 as amended "apply only to causes of action that accrue on or after the effective

date of this act." The acts complained of in this action occurred during calendar year

2000, after the Sheward decision and before the effective date of the amendment to R.C.

2744.02 recognizing that an order denying an employee of a political subdivision the

benefit of an alleged immunity as a final order.

       {¶6}    R.C. 2744.02(c) has been litigated extensively on the issue of the right to an

immediate appeal. In Hubbell v. City of Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873

N.E.2d 878 a divided Supreme Court reversed a Second District decision and held that a

trial court's decision denying a city's motion for summary judgment on the issue of

sovereign immunity due to the existence of genuine issues of material fact was a final

appealable order. The majority reasoned that a plain reading of the statute does not

require a final denial of immunity before there is a right to an interlocutory appeal.

Hubbell at ¶12.

       {¶7}    In Summerville v. City of Forest Park 128 Ohio St.3d 221, 2010-Ohio-6280

the Ohio Supreme Court, in a 4-3 decision reconciled R.C. 2744.02(c) and R.C.

2744.02(E) and held that an order denying a motion for summary judgment for claims

brought under Section 1983, Title 42, U.S. Code is a final appealable order pursuant to

R.C. 2744.02(c). Summerville, syllabus.



rendered the motion moot.
                                                                                     -3-

       {¶8}   There can be no question that under current law there is a right to an

interlocutory appeal from an order overruling such motion for summary judgment.

However, under the unique facts of this case that occurred in the year 2000, such right

does not exist.

       {¶9}   It is noted in Blackenship v. Portsmouth Police Dept. 4th Dist., 2006-Ohio-

1617 that a number of appellate districts have determined that R.C. 2744.02(c) applies

only (emphasis added) to causes of action that accrued on or after April 9, 2003, the

effective date of S.B. 106. (citations noted in ¶5) None of the cited cases have been

overturned on the proposition of law that R.C. 2744.02(c) applies only to cases that arose

after April 9, 2003, the effective date of the statute.

       {¶10} Accordingly, as this Court lacks jurisdiction to consider the appeal under

R.C. 2744.02(c), as it existed in calendar year 2000, the appeal is hereby dismissed.

       {¶11} Costs taxed against appellants.

Waite, P.J., concurs.
Donofrio, J., concurs.
DeGenaro, J., concurs.
