[Cite as Rose v. Primal Ability, Ltd., 2014-Ohio-3610.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


Sara L. Rose et al.,                                      :

                 Plaintiffs-Appellants,                   :             No. 14AP-114
                                                                    (C.P.C. No. 13CVH-8575)
v.                                                        :

Primal Ability, Ltd. et al.,                              :   (ACCELERATED CALENDAR)

                 Defendants-Appellees.                    :




                                          D E C I S I O N

                                      Rendered on August 21, 2014


                 Sara L. Rose, LLC, and Sara L. Rose, for appellants.

                 Kooperman Gillespie Mentel, Ltd., and David R. Darby, for
                 appellee Primal Ability, Ltd.


                  APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.

        {¶ 1} Plaintiffs-appellants, Sara L. and Curtis Rose, appeal from a judgment on
the pleadings entered against them by the Franklin County Court of Common Pleas on
their declaratory judgment action against defendants-appellees, Primal Ability, Ltd.,
d.b.a. Ohio Krav Maga, Ohio KM & F, and Crossfit OKM ("Primal Ability"), and a John
Doe defendant.
        {¶ 2} Appellants assign two errors for our consideration as follows:

                 I. THE TRIAL COURT ERRED IN DENYING APPELLANTS'
                 MOTION FOR JUDGMENT ON THE PLEADINGS AND IN
                 GRANTING APPELLEE'S MOTION FOR JUDGMENT ON
                 THE PLEADINGS.
No. 14AP-114                                                                                2

                II. THE TRIAL COURT ERRED IN                        DENYING
                APPELLANTS' PETITION FOR DISCOVERY.

       {¶ 3} On January 28, 2012, appellant Sara L. Rose (individually "appellant")
signed up for a self-defense class offered by Primal Ability. During class, appellant was
flipped by a student in the class whose name she does not know. As a result of the flip,
appellant injured her back.
       {¶ 4} Before starting the class, appellant had signed a detailed release entitled
"Intro class waiver" (hereinafter "waiver"). The waiver, if valid, barred appellant from
suing Primal Ability for negligence. The document also stated that she would reimburse
Primal Ability any attorney fees it expended in defending against such a lawsuit.
       {¶ 5} On August 6, 2013, appellant and her husband filed a declaratory judgment
action in the court of common pleas. The complaint filed by appellants included a copy of
the waiver. Appellants requested the trial court to construe the validity of the waiver and
its indemnification provision. Appellants sought a declaratory judgment that the waiver
did not apply to shield appellees from a personal injury lawsuit for the injuries sustained
by appellants.    The complaint alleged potential claims for recklessness and loss of
consortium, and also requested the trial court to declare that the waiver did not allow
Primal Ability to collect attorney fees or costs if appellants sued for personal injuries as a
result of alleged recklessness by appellees.
       {¶ 6} At the same time, appellants also filed a petition for discovery requesting
they be permitted to pursue discovery to determine the identity of the person who flipped
appellant. The complaint alleged that John Doe recklessly flipped appellant after being
asked not to engage in such conduct. In their answer, Primal Ability admits that it
withheld the identity of the person who allegedly injured appellant due to concerns over
that person's privacy, and that the individual in question is a minor.
       {¶ 7} Primal Ability filed a motion for judgment on the pleadings pursuant to
Civ.R. 12(C).    In response, appellants filed their own motion for judgment on the
pleadings and a memorandum contra Primal Ability's motion for judgment on the
pleadings.
       {¶ 8} As the time for the expiration of the personal injury statute of limitations
approached, appellants filed their personal injury lawsuit before receiving the answers
No. 14AP-114                                                                                                   3

they sought in the declaratory judgment action. The trial court apparently took judicial
notice that appellants had filed a tort action against Primal Ability and John Doe in
Franklin C.P. No. 14CV-788. On February 3, 2014, the trial court granted judgment on
the pleadings in favor of Primal Ability, concluding as a matter of law that appellants had
not established a need for speedy relief.1
        {¶ 9}     The trial court held in part:

                 Plaintiffs are seeking a ruling from the court that they can
                 proceed with their personal injury lawsuit against
                 Defendants without the risk of having the indemnification
                 clause or the waiver enforced against them during the
                 lawsuit. This is not the immediacy contemplated by the
                 requirements of declaratory relief.

(February 3, 2014 Decision and Entry, 4.)

        {¶ 10} Under the first assignment of error, appellants contend the trial court erred
in granting appellees' motion for judgment on the pleadings based upon a determination
that declaratory judgment was not appropriate. "[A]n appellate court reviewing a
declaratory-judgment matter should apply an abuse-of-discretion standard in regard to
the trial court's holding concerning the appropriateness of the case for declaratory
judgment, i.e., the matter's justiciability, and should apply a de novo standard of review in
regard to the trial court's determination of legal issues in the case." Arnott v. Arnott, 132
Ohio St.3d 401, 2012-Ohio-3208, ¶ 1. With this standard in mind, we review the decision
of the trial court.
        {¶ 11} R.C. Chapter 2721 deals with declaratory judgments.                          R.C. 2721.02(A)
provides as follows:
                 Subject to division (B) of this section, courts of record may
                 declare rights, status, and other legal relations whether or
                 not further relief is or could be claimed. No action or
                 proceeding is open to objection on the ground that a
                 declaratory judgment or decree is prayed for under this
                 chapter. The declaration may be either affirmative or

1 Although not part of the record before the trial court, appellant represented in her brief and at oral

argument that there was a failure of service and that subsequently she had dismissed her personal injury
suit. Thus, her lawsuit was technically never commenced. However, this action has no bearing on our
disposition of the appeal since declaratory relief is available regardless of whether other relief is or could be
claimed.
No. 14AP-114                                                                              4

              negative in form and effect. The declaration has the effect of
              a final judgment or decree.

(Emphasis added.)

       {¶ 12} The above section is read in conjunction with R.C. 2721.03, which provides
in pertinent part:
              Subject to division (B) of section 2721.02 of the Revised Code,
              any person interested under a deed, will, written contract, or
              other writing constituting a contract or any person whose
              rights, status, or other legal relations are affected by a
              constitutional provision, statute, rule as defined in section
              119.01 of the Revised Code, municipal ordinance, township
              resolution, contract, or franchise may have determined any
              question of construction or validity arising under the
              instrument, constitutional provision, statute, rule, ordinance,
              resolution, contract, or franchise and obtain a declaration of
              rights, status, or other legal relations under it.

       {¶ 13} The declaratory judgment act is remedial in nature and its purpose is to
settle and to afford relief from uncertainty and insecurity with respect to rights, status,
and other legal relations, and is to be liberally construed and administered. Jones v.
Greyhound Lines, Inc., 10th Dist. No. 11AP-518, 2012-Ohio-4409, ¶ 26. Declaratory
judgment is not always available as an alternative remedy unless the trial court, within its
discretion, finds that the action is consistent with the purposes of R.C. 2721.03
(Declaratory Judgment Act). Mack v. Ohio State Dental Bd., 10th Dist. No. 00AP-578,
(Mar. 30, 2001), citing Schaefer v. First Natl. Bank of Findlay, 134 Ohio St. 511, 519
(1938).
       {¶ 14} "[D]eclaratory judgment is a remedy in addition to other legal and equitable
remedies and is to be granted where the court finds that speedy relief is necessary to the
preservation of rights which might otherwise be impaired." Arbor Health Care Co. v.
Jackson, 39 Ohio App.3d 183, 186 (10th Dist.1987), citing Herrick v. Kosydar, 44 Ohio
St.2d 128 (1975). See also Schaefer at 519 (the purpose of the Declaratory Judgment Act
is to determine the construction or validity of a contract even in cases in which there is a
remedy either in law or equity, if a speedy and immediate adjudication is essential to full
protection of rights and interests).
No. 14AP-114                                                                                 5

       {¶ 15} Here, the question we must answer is one of justiciability. Three elements
are necessary to obtain declaratory judgment as an alternate to other remedies: (1) a real
controversy must exist between adverse parties, (2) which is justiciable in nature, and
(3) speedy relief is necessary to the preservation of rights that may otherwise be impaired
or lost. Fairview Gen. Hosp. v. Fletcher, 63 Ohio St.3d 146, 148-49 (1992).
       {¶ 16} By   signing    the   waiver,   appellant,   "for   [her]self,   [her]   personal
representative, assigns, heirs and next of kin," agreed to "[h]ereby release, discharge, and
covenant not to sue the Released Parties * * * from all liability, claims, demands, losses, or
damages on my account caused or alleged to be causes [sic] in whole or in part by the
negligence of the Released Parties." (Complaint, exhibit A.) Given the language of the
waiver, appellants sought to know what potential claims against Primal Ability may still
exist, and the extent of the indemnification provision.
       {¶ 17} The essence of declaratory relief is to dispose of uncertain or disputed
obligations quickly and conclusively. Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio
St.3d 133, 2007-Ohio-1248, ¶ 8. Resolving this type of uncertainty is at the heart of the
Declaratory Judgment Act, R.C. 2721.01 et seq. Under R.C. 2721.04, "a contract may be
construed by a declaratory judgment or decree either before or after there has been a
breach of the contract." Moreover, R.C. 2721.02(A), quoted above, expressly authorizes
the rendition of judgments whether or not further relief is or could be claimed. As the
Supreme Court of Ohio stated: "The very purpose of [The Declaratory Judgment Act] is to
determine the construction or validity of a contract even in cases in which there is a
remedy either in law or equity, if a speedy and immediate adjudication is essential to full
protection of rights and interests." Schaefer at 519. See also Civ.R. 57 ("The existence of
another adequate remedy does not preclude a judgment for declaratory relief in cases
where it is appropriate.").
       {¶ 18} If a declaratory judgment will not terminate the uncertainty or controversy
under R.C. 2721.07, a court may refuse to render or enter a declaratory judgment or
decree.   In this case, any underlying tort action will not be resolved by the declaratory
judgment action.
       {¶ 19} Here, the trial court's decision focused on the third element. The court
noted that the issues appellants raised in this declaratory judgment action (i.e., the
No. 14AP-114                                                                                             6

meaning, scope, and enforceability of the waiver) would be raised and decided in the
pending tort action between the same parties. Therefore, the trial court found that speedy
relief afforded under the Declaratory Judgment Act was not necessary to preserve rights
that might otherwise be impaired or lost.2 This finding is not an abuse of discretion.
        {¶ 20} Arguably, judicial interpretation of the waiver will determine whether
appellants have waived the right to bring a personal injury action based on negligence or
recklessness and a claim for loss of consortium against Primal Ability or John Doe.
Depending on how the waiver is construed, appellants may be liable to Primal Ability for
"litigation expenses, reasonable attorney fees, loss, liability, damage, or cost which any
may incur as the result of such claim." (Complaint, exhibit A.) In its answer to the
complaint, Primal Ability averred that appellants' claims were barred by the waiver.
However, the fact that the tort action potentially exposes appellants to an obligation to
pay Primal Ability's litigation expenses, including attorney fees, does not support a
finding that the trial court abused its discretion. Potential exposure to litigation expenses
and attorney fees does not establish a need for speedy relief to preserve rights that may
otherwise be impaired or lost.
        {¶ 21} As noted, an appellate court applies an abuse of discretion standard when
reviewing a trial court's decision on the justiciability of a declaratory judgment action.
Arnott at ¶ 1. Given the pendency of appellants' tort action against appellees, the trial
court did not abuse its discretion when it found appellants' declaratory judgment action
nonjusticiable. See, e.g., Peat Marwick Main & Co. v. Elliott, 10th Dist. No. 90AP-921
(Jan. 10, 1991) (plaintiff failed to demonstrate speedy relief is necessary to preserve its
rights as sufficiency of its defenses to a negligence action can be tested in pending action).
        {¶ 22} Accordingly, appellants' first assignment of error is without merit and is
overruled.
        {¶ 23} In their second assignment of error, appellants argue that the trial court
should have granted their petition for pretrial discovery under Civ.R. 34(D) and R.C.
2317.48. As noted by the trial court, however, appellants will be able to pursue discovery
in the course of their tort action and amend their complaint accordingly.

2 Apparently, appellants filed the tort action to avoid a statute of limitations bar. Appellants' complaint
alleges that the statute of limitations on their tort claim would expire on January 28, 2014. (Complaint at
¶ 14.) The trial court granted appellees' Civ.R. 12(C) motion on February 3, 2014.
No. 14AP-114                                                                              7

       {¶ 24} The second assignment of error is therefore rendered moot.
       {¶ 25} Based upon the foregoing, appellants' first assignment of error is overruled,
the second assignment of error is rendered moot, and the judgment of the Franklin
County Court of Common Pleas is hereby affirmed.
                                                                       Judgment affirmed.

                                    KLATT, J., concurs.
                                    TYACK, J., dissents.

TYACK, J. dissenting.

       {¶ 26} Being unable to agree with the majority, I dissent.
       {¶ 27} The appellants' decision to bring a declaratory judgment action before filing
their personal injury action was a cost effective means to avoid wasting judicial and legal
resources. Prior to filing suit, appellants wanted judicial construction of the waiver. This
would have allowed them to know what, if any, claims against Primal Ability existed and
the extent of the indemnification provision. Depending on how the trial court construed
the waiver they might have decided not to proceed with their tort action at all.   Instead,
they are now forced to incur significant litigation costs merely to determine if they have
justiciable claims.
       {¶ 28} Appellants needed the speedy relief provided by a declaratory judgment
action. The trial court's failure to rule on the declaratory judgment action prior to the
expiration of the statute of limitations placed the appellants into a "Catch-22" situation.
Appellants had to file the personal injury action, allowing them to avail themselves of the
savings statute if the trial court delayed its decision. Adjudication of the indemnification
provision would have allowed appellants to know whether they were liable for Primal
Ability's attorney fees before they pursued any tort action. While sometimes enforceable,
Ohio law does not favor contract terms that require a party to pay the opposing party's
attorney fees. See generally Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-
306, ¶ 8-9, and cases cited therein. Here, an early determination of the enforceability of
the waiver was necessary to protect the rights and interests of appellants. Had the trial
court resolved the dispute by a declaratory judgment, Primal Ability might not have
needed to defend against a lawsuit at all.
No. 14AP-114                                                                              8

       {¶ 29} I believe the trial court overlooked the overall purpose of the Declaratory
Judgment Act in finding that filing a personal injury lawsuit eliminated the need for
declaratory relief. This is particularly true here because appellants never obtained service
of process. The lawsuit was essentially a place holder to allow appellants to use the
savings statute. The need for a determination of the parties' rights and obligations under
the waiver remained regardless of the personal injury lawsuit. Therefore, I would find
that the trial court abused its discretion in granting judgment on the pleadings in favor of
Primal Ability.


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