[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 

ruling moots appellants' emergency motion to stay pending appeal.1

{¶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 
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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. 
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{¶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-Ohio1617 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.