COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72022 SHAKER AUTO LEASE, INC. : : ACCELERATED CASE Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF CLEVELAND HEIGHTS : : PER CURIAM Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JUNE 19, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-303657 JUDGMENT: APPEAL DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: HOWARD S. STERN (#0012405) Steiner & Stern Co., L.P.A. 75 Public Square - Suite 1400 Cleveland, Ohio 44113-2000 For Defendant-Appellant: JOHN H. GIBBON (#0010986) Director of Law LAURE A. WAGNER (#0012349) Assistant Director of Law CITY OF CLEVELAND HEIGHTS 40 Severance Circle Cleveland Heights, Ohio 44118 - 2 - PER CURIAM: This is an appeal of a judgment of the Court of Common Pleas, Cuyahoga County, denying defendant-appellant, City of Cleveland Height's ("appellant"), motion for summary judgment. The limited but pertinent facts upon which this appeal rests are that appellant herein, on March 27, 1995, after receiving a citizens complaint of a possibly abandoned vehicle, removed and impounded a Chevy Blazer which was being leased by Richard D. Heller and was owned by plaintiff-appellee, Shaker Auto Lease, Inc. On June 14, 1995, appellant notified Mr. Heller that it was holding his vehicle and unless he claimed the vehicle within ten (10) days of the notice, ownership would be forfeited, the mortgage or lien would be invalid, the vehicle would be declared a nuisance and would be disposed of by public auction or salvaged in accordance with R.C. 4513.60, 4513.61 or 4513.63. Appellant, however, never notified appellee that the Chevy Blazer had been impounded or of the consequences if the vehicle remained unclaimed. Subsequently, appellee's Chevy Blazer was disposed of. On February 21, 1996, appellee filed a complaint alleging negligence on the part of appellant for failure to properly notify appellee that the Chevy Blazer had been impounded. On July 17, 1996, the complaint was amended. On November 29, 1996, appellant filed a motion for summary judgment. In the motion, appellant stated that impoundment of a vehicle for traffic violations or parking violations is a - 3 - governmental function which confers immunity. The trial court, however, denied appellant's motion for summary judgment on January 21, 1997, and appellant appealed to this court. Before reaching the merits of appellant's appeal, we must first consider whether or not this court has jurisdiction. 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 which may be reviewed, affirmed, modified, or reversed, with or without retrial. An order, to be final, must fit into at least one of the three categories set forth in R.C. 2505.02. Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, 90, citing General Electric Supply Co. v. Warden Electric, Inc. (1988), 38 Ohio St.3d 378. In the present case, the trial court denied appellant's motion for summary judgment. It is generally accepted in Ohio that denial of a motion for summary judgment does not determine the action and prevent a judgment, and thus does not constitute a final order under R.C. 2505.02. Id., citing Nayman v. Kilbane (1982), 1 Ohio St.3d 269, 271; State, ex rel., v. Walinski (1966), 8 Ohio St.2d 23. Appellant argues, however, that recent amendments to R.C. Chapter 2744, Political Subdivision Tort Liability, (H.B. 350, Tort Reform Act, effective January 27, 1997), are retrospective. In - 4 - particular, appellant contends that the trial court's denial of its motion for summary judgment is a final appealable order pursuant to R.C. 2744.02(C) which went into effect January 27, 1997. R.C. 2744.02(C) provides: An order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in Chapter 2744. or any other provision of the law is a final order. As stated supra, R.C. 2744.02(C) became effective January 27, 1997; and although appellant argues that R.C. 2744.02(C) is applicable to its cause of action, neither the amended statute, nor H.B. 350 indicate that the General Assembly intended the amended version of R.C. 2744.02 to be retrospective. In Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, the Ohio Supreme Court addressed the issue of whether a statute may be applied to causes of action which accrued prior to its effective date. "The rule has been embodied in Ohio law by R.C. 1.48 which states: '[a] statute is presumed to be prospective in its operation unless expressly made retrospective.'" Van Fossen, supra at 105. Thus, the Van Fossen court held that "'where there is no clear indication of retroactive application, then the statute may only apply to cases which arise subsequent to its enactment.'" Van Fossen at 106, citing Kiser v. Coleman (1986), 28 Ohio St.3d 259, 262. Appellant asserts that Section 6 of H.B. 350 expressly makes R.C. 2744.02(C) retroactive in its application. However, a - 5 - complete review of H.B. 350 and R.C. 2744.02, as amended, does not indicate that R.C. 2744.02(C) should be applied retroactively. Accordingly, this court lacks jurisdiction to hear appellant's appeal. Appeal dismissed. - 6 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court 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. PATRICIA BLACKMON, PRESIDING JUDGE DAVID T. MATIA, JUDGE LEO M. SPELLACY, JUDGE N.B. This 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(B) 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 clerk per App.R. 22(B). See, also S.Ct.Prac.R. II, Section 2(A)(1). .