The Immunity Appeal We Should Be Able to Take for Granted

This one is mostly for the lawyers who defend public entities (and/or the people who get lost in the less practical philosophical questions in the practice of law). Those of us who regularly litigate political subdivision immunity sometimes take this for granted: when the trial court denies immunity to our clients, we still aren’t going to trial any time soon. We can appeal!

A recent split decision from the Eighth District made me pause and chew on that assumption.

In Alkayali v. Case Western Reserve University, 2026-Ohio-4054, the university and its officers appealed the denial of their immunity-based motion to dismiss. Three judges produced three opinions, with two voting that the trial court’s decision was not a final, appealable order.

The lead opinion concluded that even though CWRU operates a statutorily authorized police department, it was not a political subdivision, so the decision to deny it immunity under RC Ch. 2744 was not a final appealable order.

Though the concurring opinion also concluded that the trial court’s decision was not a final appealable order, it criticized the lead opinion for analyzing and deciding whether CWRU was a political subdivision for purposes of RC 2744 immunities. The concurrence stated:

“The trial court’s denial did not find that CWRU was a political subdivision or that political-subdivision immunity applies . . . I would not speculate as to what the trial court meant in its journal entry regarding whether CWRU is a political subdivision entitled to immunity. We must be mindful that this court’s function is that of a reviewing court and ‘[w]hen there is no determination before us to review, this Court cannot step into the role of the trial court and determine a matter for the first time on appeal.’ . . . Because there was no determination by the trial court that CWRU is entitled to political-subdivision immunity, I would find that this appeal is interlocutory and dismiss for lack of final appealable order.”

The court dismissed the appeal without a majority holding on CWRU’s status as a political subdivision.

So why does this matter? At first glance, this looks like a case about whether a private entity that operates a police force can claim immunity under Chapter 2744. Cool, some well-reasoned guidance from the lead opinion on a familiar issue. But what kept nagging at me was whether the concurrence’s line of thinking, if it caught on, could affect my public and private clients’ prospects for taking interlocutory appeals.

Does this opinion mean to suggest that a trial court’s order denying a motion to dismiss is only appealable if it addresses whether the defendant is a political subdivision entitled to immunity?

And when an entity’s status as a political subdivision is disputed, could the absence of an express ruling on that issue keep it from taking an immediate appeal?

You’re likely familiar with RC 2744.02(C), which makes an order final when it denies a political subdivision or its employee the “benefit of an alleged immunity.” The statute reaches beyond Chapter 2744, including federal qualified immunity asserted by political subdivision employees. The rule exists because Ohio public policy favors determining immunity issues early in order to save political subdivisions (and taxpayers) the financial and other burdens of litigation.

In DiGiorgio v. Cleveland, 2011-Ohio-5824, the trial court had denied Cleveland’s motion for judgment on the pleadings that challenged both the sufficiency of the allegations and asserted a statutory immunity defense. The Eighth District, sitting en banc, held that denial of a motion for judgment on the pleadings asserting immunity was appealable, even though the trial court did not issue an opinion as to why it denied the motion (and made no explicit finding regarding whether Cleveland was a political subdivision for purposes of RC Ch. 2744).

In Supportive Solutions v. Electronic Classroom of Tomorrow, 2013-Ohio-2410, the Ohio Supreme Court approved of DiGiorgio. Reviewing the denial of leave to ECOT to add an affirmative immunity defense to its answer, it expressly rejected the reasoning that an order was unappealable because it made no determination about immunity, emphasizing the order’s effect on the asserted defense. (This decision is useful when an order denies the benefit of alleged immunity even without deciding the merits of that defense.)

The Eighth District also recognized in Riscatti v. Prime Properties Ltd. Partnership, 2012-Ohio-2921, ¶ 23, that an order denying the benefit of alleged immunity can be appealable even when it does not address immunity. The defendants’ status as political subdivisions was undisputed there, too. Id. at ¶ 28.

OK, so nobody in their right mind was questioning whether Cleveland was a political subdivision in DiGiorgio, and RC 2744.01(F) expressly includes community schools like ECOT, so its status was rightfully unquestioned in Supportive Solutions. Perhaps the concurring judge in Alkayali meant to say that the court of appeals should not decide issues briefed by the parties in the appellate court but left undecided by the trial court; whatever the intended limit, taken at face value it could be construed to mean an order denying immunity to a political subdivision is not appealable unless the trial court addressed whether the defendant is a political subdivision under RC 2744.01(F).

Let’s assume that I’m being ridiculous and the concurring opinion in Alkayali does not suggest that a trial court needs to state explicitly that it finds a defendant is a political subdivision before its decision denying immunity to that defendant can be considered a final, appealable order. Even on that narrower reading, adopting the concurrence’s reasoning could make the right to an immediate appeal turn on whether the trial court expressly addressed the disputed status issue.

For example, say a defendant whose status as a political subdivision is disputed moves to dismiss claims against it under RC Ch. 2744, asserting that it qualifies and that no exception to immunity applies. If the trial court denies the motion because the allegations could support an exception, without deciding the status issue (or provides no explanation for the denial at all!), applying the concurrence’s reasoning could leave that defendant waiting for an express status ruling before it can appeal. If that ruling never comes, appellate review could be delayed until after trial.

Finally, as a practical matter, the split in Alkayali could lengthen the litigation process. If the concurring judge had joined the lead opinion, a majority holding that CWRU was not a political subdivision would ordinarily have governed further proceedings as the law of the case, subject to further review. Without a majority decision on status, that question remains open, potentially requiring more litigation in the trial court and another appeal.

The concurring opinion in Alkayali is still only a single concurrence and does not change the status of the law. For attorneys, I suggest always making sure you address the issue of whether your client is a political subdivision – for entities that are obviously political subdivisions, it only takes one sentence of your brief, and it’s always been good practice to do so anyway.

My objection to the concurrence in Alkayali is this: when an order denies the benefit of alleged immunity, access to appellate review should not depend solely on whether the trial court expressly discussed the defendant’s status as a political subdivision.