COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70519 HILDA LAWRENCE, ETC. : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION METROHEALTH CENTER FOR SKILLED : NURSING : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : DECEMBER 5, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-291428 JUDGMENT : DISMISSED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: KRISTIN W. SWEENEY, ESQ. JEFFREY W. VAN WAGNER, ESQ. #0065502 #0021913 EDWARD RICHARD STEGE, ESQ. JAY W. PEARLMAN, ESQ. #0029363 #0061387 Stege, Hickman & Lowder Co., Ulmer & Berne, P.L.L. L.P.A. 1300 East Ninth Street, #900 Standard Bldg., Suite 1620 Cleveland, OH 44114 1370 Ontario Street Cleveland, OH 44113-1743 - 2 - SPELLACY, C.J. Defendant-appellant MetroHealth Center For Skilled Nursing ("appellant") appeals from the denial of its motion to dismiss the complaint of plaintiff-appellee Hilda Lawrence. Appellant sought to dismiss the complaint on the grounds it was not filed within the statute of limitations. On August 31, 1992, Nellie Lawrence was admitted to appellant as a patient and resident. Nellie Lawrence suffered from an inoperable brain tumor which eventually caused her death on December 26, 1992. Her daughter, Hilda Lawrence, filed a complaint on June 23, 1995, in which she alleged various violations of R.C. 3721.13 relating to the care Nellie Lawrence received from appellant. The complaint also had a breach of contract claim. Appellant filed a motion to dismiss arguing the complaint was filed outside the two year statute of limitations for bodily injury. Lawrence amended her complaint, adding additional allegations of violations of R.C. 3721.13. The complaint was amended a second time in which the breach of contract claim was deleted. On March 20, 1996, the trial court denied appellant's motion to dismiss. The trial court added the Civ. R. 54(B) language that there is no just cause for delay. Appellant appeals from this ruling. It first must be determined if this appeal is from a final, appealable order. The Ohio Constitution limits the appellate jurisdiction of the courts of appeals to reviewing only judgments - 3 - and final orders. Section 2, Article IV, Ohio Constitution. If an order or judgment is not final, a court of appeals lacks jurisdiction to review it. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17. The trial court added the Civ. R. 54(B) language that there is no just cause for delay. Civ. R. 54(B) pertains to orders which adjudicate fewer than all the claims or the rights and liabilities of fewer than all the parties in cases involving multiple claims or multiple parties. See Noble v. Colwell (1989), 44 Ohio St.3d 92. In the instant case, neither multiple claims nor multiple parties are present. Civ. R. 54(B) is not applicable. The addition of the phrase "no just cause for delay" does not by itself make this order either final or appealable. R.C. 2505.02 provides in pertinent part: An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. The ruling in the instant case denying appellant's motion to dismiss for filing an untimely action is not an order which determines the action and prevents a judgment or an order vacating or setting aside a judgment or granting a new trial. Appellant asserts the order was one made in a special proceeding which affects a substantial right. The court in Polikoff v. Adam (1993), - 4 - 67 Ohio St.3d 100, pointed out that, generally, an order denying a motion to dismiss is not a final order. Id., at 103. The case will proceed to trial. If an adverse judgment is rendered, the denial of the motion to dismiss may be assigned as error on appeal. Future relief for the ruling is not foreclosed. Lakewood v. Pfeifer (1992), 83 Ohio App.3d 47. Pursuant to Polikoff, supra, a special proceeding is an action created by statute and not recognized at common law, in equity, or established by special legislation. To qualify as a special proceeding, the remedy sought must be one either conferred by Ohio statute or be a proceeding that represents what essentially is an independent judicial inquiry. In making this determination, the nature of the relief sought must be examined. The order also must be one which affects a substantial right. A substantial right is a legal right entitled to enforcement and protection by law. State ex rel. Hughes v. Celeste (1993), 67 Ohio St.3d 429, 430. A court order which deprives a person of a remedy which he would otherwise possess deprives that person of a substantial right. Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86. An order which affects a substantial right has been perceived to be one which, if not immediately appealable, would foreclose appropriate relief in the future. Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 63. The appellant must establish that vindication of that right on appeal after final judgment is not available. This is because the impact - 5 - of the order upon the appellant's rights cannot be effectively examined by a reviewing court without an immediate appeal. A substantial right is affected when there is virtually no opportunity for an appellate court to provide relief on appeal after the final judgment. State v. Chalender (1994), 99 Ohio App.3d 4. Contrary to appellant's assertion that State v. Torco Termite Pest Control (1985), 27 Ohio App.3d 233, held a denial of a motion to dismiss on statute of limitations grounds does affect a substantial right, the actual holding of the case is that, pursuant to Amato v. General Motors Corp. (1981), 67 Ohio St.2d 253, the order was not final. In Taylor v. Ohio State Univ. (May 11, 1995), Franklin County App. No. 94APl11-1639, unreported, the court held the denial of a motion to dismiss on statute of limitations grounds does not affect a substantial right. Similarly, appellant has failed to establish there is no opportunity for relief upon appeal from an adverse judgment. Appellant has pointed to no remedy which it will be denied absent an immediate appeal. Although if it is later determined the trial court's ruling was in error, the additional expense and delay of a trial is not a reason to review the motion. An appellate court cannot determine whether an appeal has merit without determining the appeal on its merits. See Lonigro v. Lonigro (1989), 55 Ohio App.3d 30. Appellant is not denied an opportunity to seek appropriate future relief, if necessary. Therefore, the denial of - 6 - appellant's motion to dismiss for filing a complaint beyond the statute of limitations does not affect a substantial right. Because of the above determination, there is no need to also determine if the order was entered in a special proceeding pursuant to Polikoff. Appeal dismissed. - 7 - It is ordered that appellee recover of appellant her costs herein taxed. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J. PATTON, J., CONCUR CHIEF JUSTICE LEO M. SPELLACY N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .