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Polikoff v. Adam - 67 Ohio St. 3d 100, 616 N.E.2d 213 (1993)

Rule:

Orders that are entered in actions that were recognized at common law or in equity and were not specially created by statute are not orders entered in special proceedings pursuant to Ohio Rev. Code Ann. § 2505.02Amato v. Gen. Motors Corp., 67 Ohio St.2d 253 (1981), 21 O.O.3d 158, 423 N.E.2d 452 is therefore overruled. 

Facts:

On July 12, 1991, plaintiff-appellee Harry Polikoff, trustee under the will of Marjorie L. Polikoff, filed a shareholder derivative suit against defendants-appellants TRW, Inc. ("TRW"), members of TRW's board of directors, and officers of TRW. The complaint alleged that the corporation had violated sections of the Fair Credit Reporting Act, 15 U.S.C.S. § 1681 et seq., by distributing inaccurate and misleading credit material. The corporation filed a motion to dismiss, which was denied, and motions for reconsideration and appeal, which were also denied. Thereafter, the appellants sought a review, and challenged the order dismissing their appeals, contending that the order denying their motion to dismiss was an order that was made in a special proceeding and affects a substantial right and thus suitable for an independent appeal.

Issue:

Was the order denying the appellants’ motion to dismiss a shareholder derivative suit an order made in a special proceeding that could be made the foundation for an independent appeal?

Answer:

No.

Conclusion:

The Supreme Court of Ohio explained that it was being asked to define the characteristics of a final, appealable order, as "final order" was defined in ORC Ann. 2505.02. The Court held that the orders that were entered in actions that were recognized at common law or in equity and were not specially created by statute are not orders entered in special proceedings pursuant to ORC Ann. 2505.02. As such, the Court ruled that the order denying appellants' motion to dismiss was interlocutory. The Court concluded that the order in question was not entered in a special proceeding and could not be made the foundation of an independent appeal. 

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