COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75348 CITY OF CLEVELAND : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ALEX E. SOLOMON : : PER CURIAM : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 15, 1999 CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court, 97 CRB 39231. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Cornell P. Carter, Esq. Chief City Prosecutor Lynn A. McLaughlin, Esq. Assistant City Prosecutor City of Cleveland Central Collection Agency 1701 Lakeside Avenue Cleveland, OH 44114-1179 For Defendant-Appellant: Kenneth J. Freeman, Esq. Kenneth J. Freeman Co., L.P.A. 515 Leader Building Cleveland, OH 44114-1900 -2- PER CURIAM: This case is an accelerated appeal. Appellant, Alex E. Solomon, president of A & E Investment Co., appeals the trial court's order denying his motion to dismiss. Because we conclude that we do not have jurisdiction to consider the merits of appellant's appeal, we dismiss the appeal. On November 8, 1997, plaintiff-appellee, the City of Cleveland, filed a criminal complaint against appellant in the Cleveland Municipal Court alleging that appellant willfully and/or negligently failed to file and/or pay city withholding tax, penalties and interest, in violation of Sections 191.1505 and 601.11(a)(1) of the Codified Ordinances of the City of Cleveland. On June 19, 1998, appellant filed a motion to dismiss the complaint, arguing that because appellee never filed a proof of claim with the Bankruptcy Court during A & E's Chapter 11 bankruptcy proceeding, A & E was not aware of any obligation to pay municipal income taxes. Therefore, A & E argued, there was no evidence of any willful failure to pay municipal incomes taxes. The trial court held hearings on appellant's motion on August 18, 1998 and August 25, 1998. On September 1, 1998, the trial court denied appellant's motion, finding that the issues raised in appellant's motion were for the trier of fact. The court set the case for jury trial on October 8, 1998. On September 30, 1998, appellant filed a notice of appeal, asserting one assignment of error for our review: -3- I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN DENYING THE DEFENDANT'S MOTION TO DISMISS. Appellee argues that the trial court's order denying appellant's motion to dismiss is not a final appealable order and, therefore, we do not have jurisdiction to consider the merits of this appeal. We agree. Section 3(B)(2), Article IV of the Ohio Constitution limits the appellate jurisdiction of the courts of appeals to reviewing, affirming, modifying or reversing judgments or final orders of the [inferior] courts. The requirement that appeals be from judgments or final orders in criminal cases is embodied in R.C. 2953.02, which provides, in pertinent part: *** In any *** criminal case, including a conviction for the violation of an ordinance of a municipal corporation, the judgment or final order of a court of record inferior to the court of appeals may be reviewed in the court of appeals. *** (Emphasis added.) Thus, to provide a basis for appeal in a criminal case, there must be a sentence which constitutes judgment or a final order amounting to a disposition of the cause. State v. Eberhardt (1978), 56 Ohio App.2d 193, 196. Final order is defined in R.C. 2505.02: (B) An order is a final order that may be reviewed, affirmed, modified or reversed, with or without retrial, when it is one of the following: (1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment; -4- (2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment; (3) An order that vacates or sets aside a judgment or grants a new trial; (4) An order that grants or denies a provisional remedy ***; (5) An order that determines that an action may or may not be maintained as a class action. This definition of final order applies to both criminal and civil appeals. State, ex rel. Leis v. Kraft (1984), 10 Ohio St.3d 34, 36; State v. Collins (1970), 24 Ohio St.2d 107, 108. Generally, in both civil and criminal cases, an order denying a motion to dismiss is not a final appealable order. Polikof v. Adam (1993), 67 Ohio St.3d 100, 103; Lakewood v. Pfeifer (1992), 83 Ohio App. 3d 47, 50; State v. Eberhardt (1978), 56 Ohio App.2d 193, 197-198. This case is no exception. The trial court's ruling on appellant's motion to dismiss is not a sentence which constitutes judgment nor a judgment in the sense of an adjudication on the merits of the case. Accordingly, in order for this court to have jurisdiction to consider appellant's appeal, the trial court's order denying appellant's motion to dismiss must be a final order, as defined in R.C. 2505.02. The two categories of final orders that might apply to the trial court's order are: 1) orders that affect a substantial right in an action that in effect determines the action and prevents a -5- judgment, and 2) orders that affect a substantial right made in a special proceeding. Both of these categories require that the order affect a substantial right in order to be final and appealable. A substantial right for purposes of R.C. 2505.02 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, 88. An order which affects a substantial right has also been interpreted to be one which, if not immediately appealable, would foreclose appropriate relief in the future. Lawrence v. Metrohealth Ctr. for Skilled Nursing (Dec. 5, 1996), Cuyahoga App. No. 70519, citing Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 63. To establish that an order affects a substantial right, the appellant must establish that in the absence of immediate review of the order, he or she will be denied effective relief in the future. Id. In this case, the trial court's order denying appellant's motion to dismiss does not deprive appellant of any remedy that he might otherwise possess nor does it foreclose appropriate relief in the future. The case can proceed to trial and in the event of a judgment adverse to appellant, the trial court's decision overruling his motion to dismiss may become one of the assignments of error on appeal. Accordingly, the denial of appellant's motion -6- to dismiss does not affect a substantial right and, therefore, is not a final order pursuant to R.C. 2505.02. Having determined that the trial court's decision denying appellant's motion to dismiss is neither a judgment or final order for purposes of R.C. 2953.02, we hold that we do not have jurisdiction to consider the merits of this appeal. Accordingly, appellant's appeal is dismissed. -7- This appeal is dismissed. It is, therefore, ordered that appellee recover from appellant its costs herein taxed. It is ordered that a special mandate be sent to the Cleveland Municipal Court directing said 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. TIMOTHY E. McMONAGLE, PRESIDING JUDGE JOHN T. PATTON, JUDGE JAMES D. SWEENEY, JUDGE 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. 22. 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 .