Wisintainer v. Elcen Power Strut Co. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Wisintainer et al., Appellants v. Elcen Power Strut Company;
JDB Engineering, Inc. et al, Appellees.
[Cite as Wisintainer v. Elcen Power Strut Co. (1993), -- Ohio
St. 3d ---.]
Civil procedure -- For purposes of Civ.R. 54(B) certification,
trial judge makes what is essentially a factual
determination whether an interlocutory appeal is
consistent with the interests of sound judicial
administration -- Trial court's certification
determination of "no just reason for delay" must stand,
when.
1. For purposes of Civ. R. 54(B) certification, in deciding
that there is no just reason for delay, the trial judge makes
what is essentially a factual determination -- whether an
interlocutory appeal is consistent with the interests of sound
judicial administration.
2. Where the record indicates that the interests of sound
judicial administration could be served by a finding of "no
just reason for delay," the trial court's certification
determination must stand.
(No. 92-101 -- Submitted February 16, 1993 -- Decided
September 15, 1993.)
Appeal from the Court of Appeals for Guernsey County, No.
91-CA-32.
Plaintiff-appellant Larry E. Wisintainer was employed by
defendant Soehnlen Piping Company, Inc.("Soehnlen") as a
pipefitter. On August 26, 1987, while working on a
construction site in Cambridge, Ohio, appellant sustained
serious head and facial injuries as a result of being struck by
a length of pipe.
The accident occurred during the construction of a liquid
detergent manufacturing and bottling plant owned by
Colgate-Palmolive Company ("Colgate"). Colgate entered into an
agreement with Graham Container Corporation ("Graham") to
design, arrange for the installation of, and operate the
automated processes in Colgate's plant. Graham contracted with
Sverdrup Corporation ("Sverdrup") to act as the construction
manager on the project. Sverdrup, in turn, subcontracted the

various work to, among others, Soehnlen. Soehnlen supplied all
materials and labor needed to install the mechanical pipe work
required to convey air and water to Graham's process
equipment. The specifications and technical drawings used by
Soehnlen were prepared by JDB Engineering, Inc. ("JDB"), one of
Graham's subcontractors. Grinnell Corporation ("Grinnell")
manufactured pipe clamps of the kind used by Soehnlen to
suspend the pipe which fell on appellant. Famous Supply
Company ("Famous") supplied those clamps to Soehnlen.
By the time appellants filed their second amended
complaint on August 17, 1989, all of the above parties had been
named as defendants. Defendants also filed cross-claims
amongst themselves.
Appellants' claim against Colgate was dismissed with
prejudice on January 31, 1990. Between December 19, 1989 and
October 19, 1990, all remaining defendants filed motions for
summary judgment. At the time the motions for summary judgment
were filed, the cross-claims and third-party claims remained
pending.
In a June 24, 1991 entry, the trial court granted the
motions for summary judgment of Grinnell, Famous and JDB, and
denied those of Graham, Sverdrup and Soehnlen. On August 12,
1991, appellants petitioned the court for a nunc pro tunc
judgment entry reflecting that there was "no just reason for
delay" as to the order granting the summary judgments. On
September 3, 1991, the court complied, ordering that "[f]or
good cause shown, and in accordance with Civ. R. 54(B), the
Court expressly finds that there is no just reason for delay."
Appellants sought immediate review before the Court of
Appeals for Guernsey County. At the time the notice of appeal
was filed, appellants' claims against Graham and Sverdrup
remained pending. In addition, the cross-claim seeking
indemnification and contribution filed by Sverdrup against
Grinnell was pending as well as the cross-claims filed by
Graham against JDB and Sverdrup.
On November 4, 1991, the appeal filed against Famous
Supply was dismissed. On November 18, 1991, the Guernsey
County Court of Appeals dismissed appellants' appeal against
JDB and Grinnell for lack of jurisdiction, expressly finding,
"[n]o final, appealable order."
This cause is now before this court pursuant to the
allowance of a motion to certify the record.

The Okey Law Firm, L.P.A., and Steven P. Okey, for
appellants.
Buckingham, Doolittle & Burroughs, David T. Moss and
Douglas C. Bond, for appellee JDB Engineering, Inc.
Arter & Hadden, William A. Adams and Robert R. Dunn, for
appellee Grinnell Corporation.

Pfeifer, J. An appellate court's review of a trial
court's grant of certification should be a two-step process.
First, the focus of the appellate court's review should be on
whether the order appealed is "final" as defined by R.C.
2505.02. The reviewing court should concentrate on answering
that predominantly legal question of whether the order sought
to be appealed affects a substantial right and whether it in

effect determines an action and prevents a judgment. It is in
this first step of the review process that the court of appeals
plays its most important role.
Second, the appellate court should review the trial
court's determination, required by Civ. R. 54(B), that "there
is no just reason for delay." As this court has held in the
past, the phrase "no just reason for delay" is not a mystical
incantation which transforms a nonfinal order into a final
appealable order. Chef Italiano Corp. v. Kent State Univ.
(1989), 44 Ohio St.3d 86, 541 N.E.2d 64. Such language can,
however, through Civ. R. 54(B), transform a final order into a
final appealable order.
In deciding that there is no just reason for delay, the
trial judge makes what is essentially a factual determination
-- whether an interlocutory appeal is consistent with the
interests of sound judicial administration, i.e., whether it
leads to judicial economy. Trial judges are granted the
discretion to make such a determination because they stand in
an unmatched position to determine whether an appeal of a final
order dealing with fewer than all of the parties in a
multiparty case is most efficiently heard prior to trial on the
merits. The trial court can best determine how the court's and
the parties' resources may be utilized most effectively . The
trial court is most capable of ascertaining whether not
granting a final order might result in the case being tried
twice. The trial court has seen the development of the case,
is familiar with much of the evidence, is most familiar with
the trial court calendar, and can best determine any likely
detrimental effect of piecemeal litigation. More important
than the avoidance of piecemeal appeals is the avoidance of
piecemeal trials. It conserves expense for the parties and
clarifies liability issues for jurors when cases are tried
without "empty chairs."
In making its factual determination that the interest of
sound judicial administration is best served by allowing an
immediate appeal, the trial court is entitled to the same
presumption of correctness that it is accorded regarding other
factual findings. An appellate court should not substitute its
judgment for that of the trial court where some competent and
credible evidence supports the trial court's factual findings.
Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 10 OBR
408, 461 N.E.2d 1273. Likewise, regarding Civ. R. 54(B)
certification, where the record indicates that the interests of
sound judicial administration could be served by a finding of
"no just reason for delay," the trial court's certification
determination must stand. An appellate court need not find
that the trial court's certification is the most likely route
to judicial economy, but that it is one route which might lead
there. Trial courts, however, should be careful not to breach
the duty entrusted to them, and should avoid a mechanical
application of the Civ. R. 54(B) language.
The first step that should have been taken by the court of
appeals in this case was to determine whether the order
appealed was "final," as defined by R.C. 2505.02. The present
order fits squarely within the statute. The statute's first
clause addresses the type of order at issue in this case -- an
"order that affects a substantial right in an action which in

effect determines the action and prevents a judgment." The
order given in this case certainly affects a substantial right,
that being potential recovery against an alleged tortfeasor.
The order also determines the action against the appellees.
All of the causes of action between appellants and appellees
are resolved by the summary judgment. The summary judgment
prevents a judgment against appellees for appellants. That
cross-claims exist between appellees and other defendants is
irrelevant -- at this point, appellants cannot recover from
appellees.
Since the summary judgment granted at the trial level was
a final order pursuant R.C. 2505.02, the appellate court next
should have determined whether the record indicates that a
finding of "no just reason for delay" could lead to judicial
economy. The paramount consideration to be made is whether the
court's determination serves judicial economy at the trial
level.
In this case, the trial court did not act reflexively in
finding "no just reason for delay." The court acted only after
appellants filed a motion seeking an order to certify nunc pro
tunc. Thus, the trial judge did not mechanically sign a
boilerplate summary judgment entry -- he realized the import of
his certification. The record reveals that that reasoned
decision could result in judicial economy.
First, the life of the cross-claims against Grinnell and
JDB independent of the original claims against them is tenuous,
at best. The viability of the cross-claims depends on the
alleged negligence of Grinnell and JDB, and the issue of their
negligence would be at the heart of an immediate appeal on the
original claims. A resolution of that issue would appear to
resolve all parties' claims against Grinnell and JDB, or at
least would be very helpful in settlement. If summary judgment
against plaintiffs were upheld, Grinnell and JDB might also
decide to seek summary judgment against Sverdrup and Graham,
respectively, which they failed to do specifically earlier. If
the failure to seek summary judgment against the complaining
cross-defendants was purposeful, an immediate appeal prevents a
party from keeping alive a shaky cross-claim in order to avoid
trial on a more meritorious claim.
Also, an immediate appeal presents the only possible way
to achieve the most efficient and straightforward trial, one
with all of the parties present with an ability to present
evidence against each other. Absent an immediate successful
appeal, Grinnell and JDB would remain in the trial as
defendants on the cross-claims, but not as defendants on the
original claims, and appellants would be unable to present
evidence against them. If appellants were to attempt to
present evidence through the "back door" against Grinnell and
JDB, that might deflect liability away from the remaining
defendants. Since Grinnell and JDB can only be liable through
Sverdrup and Graham, respectively, it would serve their
interests for Sverdrup and Graham to prevail against
appellants, and each might decide not to present evidence
against Sverdrup and Graham. The unresolved appeals allow for
a myriad of tangled scenarios full of duplicitous machinations
which could only serve to muddle the issues and present the
jury with less than the full story.

If, on the other hand, the appeals are unsuccessful, the
parties may at least operate from certainty. A resolved
appeal, whether successful or unsuccessful, will go far to
clarify the issues for the purpose of settlement between the
parties. That may well lead to the most efficient resolution
possible -- no trial.
A successful appeal subsequent to trial would lead to the
possibility of the case being tried twice, both times with
"empty chairs." That possibility is enough to demonstrate that
the trial court reasonably found that there was "no just reason
for delay" for appellants' appeal.
Therefore, since the summary judgments in favor of
Grinnell and JDB were "final orders" as defined by R.C.
2505.02, and since the record reflects that the interests of
sound judicial administration could be served through a finding
of "no just reason for delay," we reverse the judgment of the
court of appeals dismissing appellants' appeal.

Judgment reversed.
Moyer, C.J., A.W. Sweeney, Wright and F.E. Sweeney, JJ.,
concur.
Douglas and Resnick, JJ., separately dissent.

Wisintainer v. Elcen Power Strut Co.
Douglas, J., dissenting. I respectfully dissent.
Appellant, Larry E. Wisintainer, was employed by Soehnlen
Piping Company ("Soehnlen") as a pipefitter. On August 26,
1987, while working on the construction of a Colgate-Palmolive
Company ("Colgate") manufacturing plant in Cambridge, Ohio,
appellant sustained serious head injuries when he was struck by
a falling section of pipe.
Graham Container Corporation ("Graham") was the general
contractor for the Colgate construction project. Sverdrup
Corporation ("Sverdrup") was the construction manager.
Sverdrup had subcontracted the pipefitting work to Soehnlen,
appellant's employer. Appellee Grinnell Corporation
("Grinnell") was the manufacturer of beam clamps of the type
used by Soehnlen to suspend the pipe which fell on appellant.
Famous Supply Company ("Famous") supplied those clamps to
Soehnlen. Elcen Power Strut Company (actually, Elcen Metal
Products Company) ("Elcen") was a manufacturer of various
industrial items, including beam clamps. The specifications
and technical drawings used by Soehnlen on the construction
project were prepared by appellee JDB Engineering, Inc. ("JDB").
On July 20, 1988, appellant and his wife, Evelyn R.
Wisintainer ("appellants"), filed a complaint in the Court of
Common Pleas of Guernsey County, naming, as defendants,
Colgate, Elcen, Famous and Sverdrup. During 1988-1989,
answers, amended answers, cross-claims (for contribution and/or
indemnification) and answers to cross-claims were filed by the
defendants. Additionally, Sverdrup filed third-party
complaints against Soehnlen, Graham and JDB.
On May 11, 1989, appellants filed an amended complaint to
include claims against Graham and JDB. On August 17, 1989,
appellants filed a second amended complaint to add appellee
Grinnell. Following these filings, additional answers,
cross-claims for contribution and/or indemnification, and

answers to cross-claims were filed by the defendants.
Appellants' claims against Colgate and Elcen were
eventually dismissed with prejudice. The remaining defendants
named in appellants' second amended complaint (Famous,
Sverdrup, Graham, Grinnell and JDB) filed motions for summary
judgment against appellants. Additionally, Soehnlen moved for
summary judgment against Sverdrup on the third-party complaint,
and against Graham on an outstanding cross-claim by Graham for
indemnification.
In a September 3, 1991 order amending a previous entry,
the trial court granted Famous's, Grinnell's and JDB's motions
for summary judgment, and denied the motions of Graham,
Sverdrup and Soehnlen. The trial court expressly found "no
just reason for delay" of an appeal from these determinations.
See Civ.R. 54(B).
Appellants appealed to the court of appeals seeking
immediate review of the summary judgments entered in favor of
Famous, Grinnell and JDB. Meanwhile, a number of unresolved
claims remained pending in the trial court. These pending
matters include, but are not limited to, appellants' claims
against Graham and Sverdrup, Sverdrup's cross-claim against
Grinnell for contribution or indemnification, and Graham's
cross-claims against Sverdrup and JDB for contribution or
indemnity.
On November 4, 1991, appellants dismissed their appeal
against Famous. On November 18, 1991, the court of appeals
dismissed appellants' appeal against JDB and Grinnell
("appellees") for lack of jurisdiction, holding that the trial
court's order granting summary judgment in favor of appellees
was not a final, appealable order. Because I believe that the
court of appeals was right on target in this determination, I
must dissent from the majority opinion.
The issue before us is whether the trial court's order,
granting summary judgment in favor of appellees (Grinnell and
JDB) against appellants, is a final appealable order. For the
reasons that follow, I would affirm the succinct, but obviously
well thought-out, judgment of the court of appeals on this
question.
To be appealable, the trial court's order granting summary
judgment to appellees must constitute a "final order" within
the meaning of R.C. 2505.02. The trial court's order does
not. R.C. 2505.02 defines three types of 'final orders":
"(1) an order affecting a substantial right in an action which
in effect determines the action and prevents a judgment; (2) an
order affecting a substantial right made in a special
proceeding or made upon summary application after judgment; or
(3) an order vacating or setting aside a judgment or granting a
new trial. * * *" Chef Italiano Corp. v. Kent State Univ.
(1989), 44 Ohio St.3d 86, 87-88, 541 N.E.2d 64, 67. The second
and third types of final orders have no applicability in this
case. Therefore, we need only consider the first category of
final order, to-wit: an order affecting a substantial right
which in effect determines the action and prevents a judgment.
The trial court's order granting Grinnell's and JDB's
motions for summary judgment affected the substantial rights of
appellants to maintain their action against two alleged
tortfeasors. However, I think it is equally clear that the

trial court's order granting Grinnell's and JDB's motions for
summary judgment did not in effect determine the action and
prevent a judgment. Appellants' claims against Sverdrup and
Graham remain pending in the trial court along with Sverdrup's
cross-claim against Grinnell, and Graham's cross-claims against
Sverdrup and JDB. Thus, if appellants are ultimately
successful in their action against defendants Sverdrup and
Graham, and Sverdrup and Graham are successful on their
cross-claims for contribution or indemnity against Grinnell
and/or JDB, respectively, then Grinnell and JDB will be liable,
albeit indirectly, to appellants. In this regard, the trial
court's order granting summary judgment to appellees Grinnell
and JDB did not finally resolve all of the rights and
liabilities of any of the parties to this appeal.
Accordingly, I would hold that where, as here, a
cross-claim remains pending against a party who has been
granted summary judgment, the summary judgment order is not
final and, thus, is not appealable. Furthermore, the trial
court's determination of "no just reason for delay" did not
(and could not) transform the court's order into a final,
appealable order. See Chef Italiano, supra, 44 Ohio St.3d at
88-89, 541 N.E.2d at 68.
Finally, what if the court of appeals, pursuant to our
remand, affirmed the summary judgments for Grinnell and JDB and
then, during the course of trial, it is discovered that there
was negligence which resulted in injury to appellants and
either or both Grinnell and JDB were the responsible
party(ies). The trial court and/or the jury is prevented from
acting by the previously found and affirmed summary judgments.
I believe that in making their determination, the judges
of the court of appeals saw these problems. I am confident
they will again find a way, despite our remand, to meet the
problems they saw when they entered their original judgment.

Alice Robie Resnick, J., dissenting. It is obvious to me
that the majority has taken a completely new approach to Civ.
R. 54(B) and abandoned years of precedent of this court. The
majority's analysis of Civ.R. 54(B) is in direct contravention
of the purpose of the rule. Perhaps there is merit in allowing
trial courts unbridled discretion when using "no just cause for
delay" language, thus permitting piecemeal appeals. However,
this should be done only after the Rules Advisory Committee has
had an opportunity to study all of the consequences of such
massive change and has considered comments from the bench and
bar. It certainly should not be done by judicial fiat.
Moreover, a determination of whether the "magic language"
should be applied is not a factual question, as the majority
holds; rather, it is a question of law to be determined by the
facts of each case.
The majority recognizes there should be some appellate
review when there is a finding of "no just reason for delay";
nevertheless, it appears that such review is perfunctory in
light of the second syllabus paragraph which provides that
where the interests of sound judicial administration could be
served by certification, the trial court's determination of
appealability "must stand." This directive will open the
floodgates to piecemeal appeals causing dockets to become even

more congested and cases to languish for years in the judicial
system. This certainly cannot be in the best interests of
justice or judicial economy.
The majority seems to suggest that in a lawsuit involving
multiple claims or multiple parties, once the trial court is
confronted with a final appealable order under R.C. 2505.02, it
should decide whether Civ.R. 54(B) certification is "one route
which might lead" to judicial economy. The guidelines to be
employed by the trial court in reaching this decision are
nonexistent and give Ohio's trial courts carte blanche'
application of Civ.R. 54(B).
An uneven application of Civ.R. 54(B) will result if
certification is to be based on a trial court's determination
of what is a final appealable order by simply adding the "magic
language." Under the majority's analysis, a trial court can
have any of its mid-trial decisions reviewed on a routine basis
grounded upon its view that certification is in the best
interests of judicial economy.
Litigants and their attorneys in multi-party and/or
multi-claim cases will never know if their trials will proceed
uninterrupted to conclusion or be subjected to various
midstream appeals. Such a shotgun review, in most instances,
will result in delays, the cases being assigned to different
trial judges and, possibly, new juries, all in the interests of
"judicial economy." The majority has opened the floodgates to
arbitrary appellate review of claims that are not factually or
legally severable from the claims that remain pending before
the trial court. Notwithstanding the majority's simplistic
explanation of this difficult issue, it remains clear to me
that this case provides a perfect vehicle with which this court
could have announced guidelines which the trial courts could
follow to a more consistent application of Civ.R. 54(B).
I believe that Civ. R. 54(B) can be applied consistently,
evenhandedly, and in a structured manner if trial courts, when
making a determination whether to add the "magic language,"
would simply adhere to the following legally correct analysis
in each situation which comes before them.
First, an order granting a motion for summary judgment in
favor of a defendant and deciding all of plaintiff's claims
against that defendant is generally a final order under R.C.
2505.02. The determination of whether such an order is
appealable in light of the fact that it includes multiple
parties and multiple claims depends upon the application of
Civ.R. 54(B).1 In such a case, to be appealable, the order
must dispose of the whole case or some separate and distinct
part thereof. Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio
St.2d 303, 306, 56 O.O.2d 179, 180, 272 N.E.2d 127, 129. For
Civ.R. 54(B) to apply, there must be, as in the case before us,
at least one final judgment in an action containing multiple
claims or multiple parties. Al Barnett & Son, Inc. v. Outboard
Marine Corp. (C.A.3, 1979), 611 F.2d 32, at fn.3. Overall, it
is important to note that the purposes of Civ.R. 54(B) are "'to
make a reasonable accommodation of the policy against piecemeal
appeals with the possible injustice sometimes created by the
delay of appeals' * * *, as well as to insure that parties to
such actions may know when an order or decree has become final
for purposes of appeal." (Citation deleted.) Pokorny v. Tilby

Dev. Co. (1977), 52 Ohio St.2d 183, 186, 6 O.O.3d 416, 417, 370
N.E.2d 738, 739-740.
In setting forth an analysis of Civ.R. 54(B), this court
stated: "'A trial court is authorized to grant final summary
judgment upon the whole case, as to fewer than all of the
claims or parties in multi-party or multi-claim actions, only
upon an express determination that there is no just reason for
delay until judgment is granted as to all the claims and
parties. In that event, the judgment is reviewable upon the
determination of no reason for delay, as well as for error in
the granting of judgment; otherwise, the judgment is not final
and not reviewable.'" (Emphasis added.) Alexander v. Buckeye
Pipe Line Co. (1977), 49 Ohio St.2d 158, 159, 3 O.O.3d 174,
175, 359 N.E.2d 702, 703, quoting Whitaker-Merrell v. Geupel
Co. (1972), 29 Ohio St.2d 184, 58 O.O.2d 399, 280 N.E.2d 922,
syllabus.
"[Civ.R. 54(B)] permits both the separation of claims for
purposes of appeal and the early appeal of such claims within
the discretion of the trial court * * *." Alexander, 49 Ohio
St.2d at 159, 3 O.O.3d at 175, 359 N.E.2d at 703. From the
foregoing, however, the trial court's discretion should not, as
the majority seems to suggest, be unlimited. Additionally, an
appellate court is authorized to determine whether the trial
court abused its discretion in concluding that there was no
just reason to delay an appeal. Id. at 160, 3 O.O.3d at 175,
359 N.E.2d at 703.
The determination of this case and others like it should
be guided by Curtiss-Wright Corp. v. Gen. Elec. Co. (1980), 446
U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1. In Curtiss-Wright, the
United States Supreme Court reviewed a judgment entry in which
the district court expressly found no just reason for delay and
which the court of appeals reversed. In Curtiss-Wright, the
parties had entered into a series of contracts. Curtiss-Wright
filed suit against General Electric for breach of contract
seeking damages and reformation; General Electric then filed
counterclaims.
On one of Curtiss-Wright's claims concerning the
application of a release clause in an agreement that had
already been performed, the district court granted summary
judgment in favor of Curtiss-Wright and awarded it $19
million. Curtiss-Wright moved for certification of the order
as a final judgment under Fed.R.Civ.P. 54(b),2 seeking an
express determination that there was no just reason for delay.
Finding that there was no just reason for delay, the district
court directed judgment in favor of Curtiss-Wright.
On appeal, the United States Court of Appeals for the
Third Circuit determined that the grant of summary Fed.R.Civ.P.
54(b) certification was an abuse of discretion and dismissed
the case for want of a final appealable order. The United
States Supreme Court vacated and remanded, holding that there
was no abuse of discretion by the trial court.
In making its determination that the order entered was
appealable, the Curtiss-Wright court cautioned that, "[n]ot all
final judgments on individual claims should be immediately
appealable, even if they are in some sense separable from the
remaining unresolved claims." Id. at 8, 100 S.Ct. at 1465, 64
L.Ed.2d at 11. It is the role of the trial court under

Fed.R.Civ.P. 54(b) to ascertain whether a final decision within
a multiple-claims action is ready for appeal. It is essential
that in making such determination, the trial court consider the
historic policy against piecemeal appeals as well as the
equities involved. Id. See, also, Sears, Roebuck & Co. v.
Mackey (1956), 351 U.S. 427, 438, 76 S.Ct. 895, 901, 100 L.Ed.
1297, 1307; and Alexander, 49 Ohio St.2d at 160, 3 O.O.3d at
175, 359 N.E.2d at 703.
The trial court's exercise of its discretion in making
such determination must remain, with good reason, reviewable by
an appellate court. Curtiss-Wright, 446 U.S. at 10, 100 S.Ct.
at 1466, 64 L.Ed.2d at 12. The polestar against which the
exercise of discretion should be reviewed is the "'interest of
sound judicial administration.'" Id. However, it is not up to
the reviewing court to reweigh equities or reassess facts. A
reviewing court must first determine whether the trial court's
weighing of the equities and its factual assessments are
supported by the record. Id.
Ohio would be wise if it adopted the criteria set forth in
Allis-Chalmers Corp. v. Philadelphia Elec. Co. (C.A.3, 1975),
521 F.2d 360, when considering the applicability of Civ. R.
54(B).3 The Allis-Chalmers court listed factors that may be
weighed by the trial court in making a determination regarding
certification. Such factors include, but are not limited to,
the relationship between adjudicated and unadjudicated claims;
the possibility that the need for review may be mooted by
future decisions in the trial court; the possibility that a
reviewing court might be forced to consider the same issue a
second time; the presence or absence of a claim, counterclaim,
or cross-claim that might result in a setoff against the
judgment sought to be made final; and other considerations such
as delay, economic oppression and solvency, shortening the time
of trial, the frivolity of competing claims, and expense to the
parties involved. Id. at 364. Courts should be encouraged to
keep the foregoing factors in mind when conducting case-by-case
examinations
Once the jurisprudential concerns have been satisfied, I
believe that an appellate court should give substantial
deference (but not carte blanche approval) to the discretionary
judgment of the trial court, as the trial court is "'the one
most likely to be familiar with the case and with any
justifiable reasons for delay.'" Curtiss-Wright, 446 U.S. at
10, 100 S.Ct. at 1466, 64 L.Ed.2d at 12. Accordingly, in light
of that standard of review, an appellate court should not
disturb a trial court's assessment unless it can say that the
trial court's conclusion was unreasonable, arbitrary, or
capricious. Id.
Conforming to the aforementioned two-tiered standard of
review, this court should first examine the trial court's
evaluation of such factors as the interrelationship of the
cognizable claims so as to prevent piecemeal appeals in cases
which should be reviewed only as single units. Unfortunately,
in reviewing this case, it would appear that there was nothing
in the record to indicate that an evaluation of any factor was
undertaken by the trial court or the court of appeals other
than reference to the boilerplate language of Civ.R. 54(B).
Although Civ.R. 54(B) does not expressly require that the

trial court articulate the factors it relied upon in granting
certification, such expression facilitates a more prompt,
evenhanded and effective review especially in cases where the
justification for such a determination is not apparent. Gumer
v. Shearson, Hammill & Co. (C.A.2, 1974), 516 F.2d 283, 286. A
succinct listing of the factors considered by the trial court
and the court's respective analysis would provide the reviewing
court with some basis for distinguishing between well-reasoned
conclusions reached after consideration of all relevant factors
and a mere boilerplate certification phrased correctly but
appearing to be unsupported by an evaluation of the facts or a
thorough analysis of the law. Allis Chalmers, 521 F.2d at
364. Further, it has been repeatedly emphasized that
certification of an order should occur only "'in the infrequent
harsh case.'" Id. at 365. A determination of whether unusual
or harsh circumstances exist should be generated by an analysis
of factors such as solvency, economic oppression, and equity.4
It is crucial that a reviewing court be informed of the reasons
supporting the trial court's exercise of discretion, including
a recitation of those factors that weighed most heavily in
favor of certification. Id. at 365-366. Without such
specifically stated analysis appellate review is meaningless.
Courts echoing my concern over the ever-present lack of
articulated factors are numerous. See, e.g., Salina v. Star B,
Inc. (1987), 11 Kan.App.2d 639, 731 P.2d 1290; Fleet Bank of
Maine v. Hoff (Me. 1990), 580 A.2d 690, 691 ("Rule 54[b]
requires that that certifying court make an 'express
determination' of its reasons for certification. We have
interpreted this language as requiring only a 'brief reasoned
statement,' * * * except in cases where the 'justification is
clearly apparent * * *.'" [Citations omitted.]); Bank of
Lincolnwood v. Fed. Leasing, Inc. (C.A.7, 1980), 622 F.2d 944,
948 ("* * * [I]t represents this court's opinion * * * [that an
articulation of the considerations underlying the exercise of
the court's discretion] constitutes the 'better practice' and
the failure to provide a written statement of reasons may in an
appropriate case lead to a remand for such a statement.
[Footnote omitted.]"); and COMPACT v. Metro. Gov. of Nashville
& Davidson Cty. (C.A.6, 1986), 786 F.2d 227.
This is a difficult case since no reasons are given for
the decisions of either the trial or appellate courts below on
the question of certification. In making this determination, I
believe that courts should be guided by Allis-Chalmers and
Curtiss-Wright. In Curtiss-Wright, the court cautioned against
focusing on the presence of nonfrivolous counterclaims in
determining appealability. The court stated that counterclaims
are not a special problem and should not be evaluated
differently from other claims. Curtiss-Wright, 446 U.S. at
8-9, 100 S.Ct. at 1465, 64 L.Ed.2d at 11-12, citing Cold Metal
Process Co. v. United Eng. & Foundry Co. (1956), 351 U.S. 445,
452, 76 S.Ct. 904, 908, 100 L.Ed. 1311, 1318. It was
particularly important to the Curtiss-Wright court that the
counterclaims were severable from the claims that " * * * had
been determined in terms of both the factual and the legal
issues involved." Curtiss-Wright, 446 U.S. at 9, 100 S.Ct. at
1465, 64 L.Ed.2d at 12.
After a review of the cross-claims in the case before us,

it would appear that they are not factually or legally
severable from the issues that were determined by the granting
of summary judgment; therefore, I would find that the
unresolved claims and cross-claims cannot be effectively
separated from the previously adjudicated claims. Moreover,
the nature of the claims that were decided is such that an
appellate court may have to decide the same issues more than
once during subsequent appeals.
In addition, because the cross-claims seek contribution
and indemnification, appellants and appellees would continue as
parties to the action regardless of the outcome of any merit
appeal. In other words, if the judgments in favor of Grinnell
and/or JDB were affirmed, neither party would be "free" of this
litigation. Both remain active participants in the case until
the cross-claims are resolved. Most notably, appellees have an
interest in continuing to defend their roles, if any, in the
injury to appellants.
It is also obvious that facts presented as relevant to
JDB's and Grinnell's motions for summary judgment are relevant
to the litigation of the cross-claims. Conversely, in Curtiss-
Wright, once the release clause had been interpreted and
progressed through the appeals process, the clause itself
became irrelevant. The release clause could not be
reinterpreted by the district court based upon facts adduced on
the pending claims.
Further, in the instant case, a determination that the
appeal should not proceed will not require any party to incur
the expense of litigation when it might otherwise not be
involved in the case. Finally, a refusal to allow the appeal
at this time renders the trial court's grant of summary
judgment subject to revision at any time before that court
enters its judgment adjudicating all claims of appellants and
the cross-claims of all the defendants. Civ.R. 54(B). See,
also, Bodo v. Nationwide Ins. Co. (1991), 75 Ohio App.3d 499,
599 N.E.2d 844; and T.R. Barth & Assoc. v. Marginal Ent., Inc.
(1976), 48 Ohio App.2d 218, 2 O.O.3d 182, 356 N.E.2d 766.
Quite clearly, the question of appealability in cases
involving Civ.R. 54(B) is likely to be close; however, the task
of examining the relevant factors is one for the trial court.
As I have noted, the trial court's assessment, provided it is
accompanied by reasons and analysis, is due substantial
deference on review. While I do not doubt that the trial court
had an intimate knowledge of the case, it must be kept in mind
that no reasons were given in support of its decision that the
order was appealable; therefore, I would conclude for the
reasons stated herein that the trial court abused its
discretion in granting appellants' request for certification
under Civ.R. 54(B).
For the foregoing reasons, I would affirm the judgment of
the court of appeals and remand the cause to the trial court
for further proceedings.

FOOTNOTES:
1 Former Ohio Civ.R. 54(B) is based upon Fed.R.Civ.P. 54(b)
as amended in 1961. (Staff Note to Civ.R. 54[B].)
2 Fed.R.Civ.P. 54(b) provides:
"Judgment upon Multiple Claims or Involving Multiple

Parties. When more than one claim for relief is presented in
an action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved, the
court may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon an
express determination that there is no just reason for delay
and upon an express determination for the entry of judgment.
In the absence of such determination and direction, any order
or other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate
the action as to any of the claims or parties, and the order or
other form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims and
the rights and liabilities of all the parties."
3 The court emphasized that its listing was "* * * for
purpose of illustration and should not be considered
all-inclusive." Allis-Chalmers, 521 F.2d at 364, at fn. 6.
4 We are cautioned by the court in Curtiss-Wright, 446 U.S.
1, 10, 100 S.Ct. 1460, 1466, 64 L.Ed.2d 1, 12, that the
isolated phrase "'infrequent harsh case,' * * * is neither
workable nor entirely reliable as a benchmark for appellate
review." In other words, the trial court should not absolutely
require that the petitioner show harsh circumstances before the
court decides to grant certification.