[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-Ohio306, ¶ 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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