Those pesky final, appealable order questions just never stop coming I remember 30 years ago when I served as a law-student intern at Ohio’s Second District Court of Appeals, one of my primary jobs was to review incoming appeals to help the judges decide whether the orders being appealed were final, appealable orders (FAOs) under... Continue Reading
By Brad Hughes
Those pesky final, appealable order questions just never stop coming
I remember 30 years ago when I served as a law-student intern at Ohio’s Second District Court of Appeals, one of my primary jobs was to review incoming appeals to help the judges decide whether the orders being appealed were final, appealable orders (FAOs) under Ohio law.
It wasn’t always easy! I can remember some animated discussions among the judges on the issue. And as a number of prior posts on this blog reflect, it is a frequently recurring question that can lead to appellate district splits and efforts by the Ohio Supreme Court to resolve them. Sometimes, as one of our 2024 posts confirms, the ultimate answer to whether a given type of order is a FAO does not come until after full merit briefing has already taken place both in the court of appeals and in the Ohio Supreme Court and after the Supreme Court orders supplemental briefing on that critical (and jurisdictional) issue of finality.
The Ohio Supreme Court was poised to answer if bifurcation was mandatory but the FAO question intervened after full briefing
Near the end of 2025, the Ohio Supreme Court once again ordered the parties to an already-accepted appeal to file supplemental briefs on whether the order being appealed was final and appealable. In El-Hitti v. Americare Kidney Institute, L.L.C., two physicians sued to challenge what the physicians deemed to be an unreasonable non-compete agreement, among other claims and the Institute filed counterclaims. After summary judgment, the remaining claims were the physicians’ declaratory-judgment claim and the Institute’s counterclaims. The physicians moved to bifurcate trial on issues of compensatory and punitive damages pursuant to R.C. 2315.21(B) but the trial court denied the motion and the Eighth District affirmed.
The physicians appealed to the Ohio Supreme Court, arguing in their memorandum in support of jurisdiction that bifurcation of compensatory and punitive damage for claims of breach of fiduciary duty and unfair competition is mandatory under the statute and the Ohio Supreme Court’s 2012 decision in Havel v. Villa St. Joseph. At first, it seemed as though a majority of the court wanted to address this point—the court accepted discretionary review by a vote of 4-3, merit briefs were filed in July 2025 and oral argument was set for January 2026.
On Dec. 19, 2025, however, the court ordered the parties to file simultaneous and supplemental briefs “that address whether the trial court’s decision denying a bifurcated trial is a final, appealable order.”
The parties disagree as to the FAO status of orders denying bifurcation
To argue in favor of immediate appealability of the order denying bifurcation in their supplemental brief, the physician-appellants cited another 2012 decision by the Ohio Supreme Court in Flynn v. Fairview Vill. Ret. Cmty., Ltd. In that case involving the Ohio Nursing Home Patients Bill of Rights, after the trial court denied a motion to bifurcate, and the court of appeals dismissed the appeal for lack of a FAO, the Ohio Supreme Court reversed that decision. It held that when the trial court denied the bifurcation motion, it implicitly determined that an amendment to R.C. 2315.21 was unconstitutional. This triggered the subsection of the final order statute (R.C. 2505.02(B)(6)) providing that an order is a FAO when it determines the constitutionality of any changes to the Revised Code.
In its supplemental brief, the Institute noted that Ohio’s 5th, 6th and 10th Districts had previously held that orders denying bifurcation are not FAO. The Institute also argued that when a trial court decides the applicability of the bifurcation statute to a case while accepting the statute’s constitutionality, that ruling does not expressly or implicitly challenge the constitutionality of the statute. Therefore R.C. 2505.02(B)(6) did not render the trial court’s denial of bifurcation final and appealable. The Institute argued that no other subsection of R.C. 2505.02 rendered the denial of bifurcation final and also noted that the trial court’s order lacked the language called for under Civil Rule 54(B) when the trial court finds there is “no just reason for delay” of appellate review.
The Supreme Court’s last action of 2025 comes without opinion
Just two days after the supplemental briefs were filed, on Dec. 31, 2025, the Supreme Court unanimously dismissed the appeal for lack of a FAO. In fact, this was the last announcement the court made for the year 2025. However, because the Supreme Court dismissed the appeal without opinion, Ohio practitioners do not know whether the court did so because of the lack of Rule 54(B) language in the trial court’s order; because the court agreed with the Institute’s interpretation of R.C. 2505.02; or for some other reason. The lack of a written opinion may thus leave some wiggle-room for future litigation of this recurring issue – particularly in a case in which (unlike this one) the trial court does not omit the Rule 54(B) language seeking immediate appellate review.
