Wilhelm-Kissinger v. Kissinger , 129 Ohio St. 3d 90 ( 2011 )

[Cite as Wilhelm-Kissinger v. Kissinger, 129 Ohio St. 3d 90, 2011-Ohio-2317.]
WILHELM-KISSINGER, APPELLEE, v. KISSINGER, APPELLANT.
[Cite as Wilhelm-Kissinger v. Kissinger, 129 Ohio St. 3d 90, 2011-Ohio-2317.]
Final, appealable order — R.C. 2505.02(B)(2) — An order denying a motion to
disqualify counsel in a divorce proceeding is not a final, appealable order.
(No. 2010-0992 — Submitted February 16, 2011 — Decided May 19, 2011.)
CERTIFIED by the Court of Appeals for Summit County, No. 25105.
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SYLLABUS OF THE COURT
The denial of a motion to disqualify counsel in a divorce proceeding is not a final,
appealable order.
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MCGEE BROWN, J.
{¶ 1} Jeffrey R. Kissinger, appellant, appeals from a decision of the
Ninth District Court of Appeals, which determined that the trial court’s denial of
his motion to disqualify opposing counsel was not a final, appealable order. We
accepted jurisdiction to resolve a conflict in the courts of appeals. Wilhelm-
Kissinger v. Kissinger, 125 Ohio St. 3d 1461, 2010-Ohio-2753, 928 N.E.2d 737.
The certified question before us is “Whether the denial of a motion to disqualify
counsel in a divorce proceeding affects a substantial right and is a final and
appealable order.”
{¶ 2} Consistent with the decision below, we hold that the denial of a
motion to disqualify opposing counsel in a divorce proceeding is not a final,
appealable order under R.C. 2505.02(B)(2). Accordingly, we answer the certified
question in the negative and affirm the judgment below.
Facts and Procedural History
SUPREME COURT OF OHIO
{¶ 3} This appeal stems from divorce proceedings involving Kissinger
and appellee, Beth A. Wilhelm-Kissinger. During the proceedings, a dispute
arose regarding allegedly illegally obtained and privileged e-mail messages
between Kissinger and his attorney that Wilhelm-Kissinger had apparently taken
from Kissinger’s computer and given to her attorney. Kissinger moved the
Summit County Court of Common Pleas Domestic Relations Division to
disqualify Wilhelm-Kissinger’s attorney. After a hearing in which Wilhelm-
Kissinger’s attorney reported that he never sought or reviewed any of the e-mail
messages in question, the trial court denied the disqualification motion, and
Kissinger appealed.
{¶ 4} The Ninth District Court of Appeals dismissed Kissinger’s appeal,
determining that it had no jurisdiction because the denial was not a final,
appealable order under R.C. 2505.02(B)(4) (“An order is a final order that may be
reviewed * * * [if it] grants or denies a provisional remedy”). Kissinger moved
for reconsideration, arguing that the denial constituted a final, appealable order
under R.C. 2505.02(B)(2) (“An order is a final order that may be reviewed * *
*[if it] affects a substantial right made in a special proceeding * * *”). The Ninth
District Court of Appeals upheld its decision to dismiss the appeal. Wilhelm-
Kissinger v. Kissinger (Apr. 15, 2010), Summit App. No. 25105. Kissinger then
moved the court of appeals to certify a conflict between its reconsidered decision
and the decision of the Tenth District Court of Appeals in Crockett v. Crockett,
Franklin App. No. 02-AP-482, 2003-Ohio-585. In Crockett, the Tenth District
Court of Appeals concluded that in light of the “well-established [principle] that
the denial of a motion to disqualify counsel affects a substantial right,” as well as
the nature of “[d]ivorce [as] purely a matter of statute,” the denial of a motion to
disqualify opposing counsel is final and appealable under R.C. 2505.02(B)(2). Id.
at ¶ 9-10. The Ninth District Court of Appeals certified the conflict, and we
accepted jurisdiction over the appeal.
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Analysis
{¶ 5} Ohio’s courts of appeals have jurisdiction “to review and affirm,
modify, or reverse final orders.” Section 3(B)(2), Article IV, Ohio Constitution.
R.C. 2505.02 sets forth several types of final, appealable orders. The present
appeal involves the category defined by R.C. 2505.02(B)(2), which makes an
“order that affects a substantial right made in a special proceeding” a final,
appealable order.
{¶ 6} A “[s]pecial proceeding” is “an action or proceeding that is
specially created by statute and that prior to 1853 was not denoted as an action at
law or a suit in equity.” R.C. 2505.02(A)(2). Therefore, divorce, a statutory
matter that did not exist at common law, qualifies as a special proceeding. State
ex rel. Papp v. James (1994), 69 Ohio St. 3d 373, 379, 632 N.E.2d 889
(identifying divorce as a “special statutory proceeding” under R.C. 2505.02(B)(2)
because “[t]here was no common-law right of divorce. Divorce is purely a matter
of statute”).
{¶ 7} An order affects a substantial right for the purposes of R.C.
2505.02(B)(2) only if an immediate appeal is necessary to protect the right
effectively. Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St. 3d 60, 63, 616 N.E.2d
181 (To prevail in contending that an order affects a substantial right, “appellants
must demonstrate that in the absence of immediate review of the order they will
be denied effective relief in the future”). Covered rights include any “right that
the United States Constitution, the Ohio Constitution, a statute, the common law,
or a rule of procedure entitles a person to enforce or protect.” R.C.
2505.02(A)(1).
{¶ 8} We have previously held that a decision granting a motion to
disqualify opposing counsel is a final, appealable order that a party deprived of
counsel can appeal immediately. See Russell v. Mercy Hosp. (1984), 15 Ohio
St.3d 37, 39, 15 OBR 136, 472 N.E.2d 695 (“in the civil context, the grant of a
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SUPREME COURT OF OHIO
motion to disqualify counsel * * * constitutes a final appealable order under R.C.
2505.02”). See also State v. Chambliss, 128 Ohio St. 3d 507, 2011-Ohio-1785,
947 N.E.2d 651, syllabus (“A pretrial ruling removing a criminal defendant’s
retained counsel of choice is a final order subject to immediate appeal”). We now
address whether in the special proceeding of divorce, an order denying a motion
to disqualify opposing counsel also qualifies as a final, appealable order under
R.C. 2505.02(B)(2).
{¶ 9} Orders granting and denying disqualification of counsel differ in
two key respects. First, an order granting disqualification immediately and
definitely affects the party it deprives of chosen counsel; the purpose of appealing
such an order is to prevent the removal itself. By contrast, an order denying
disqualification, standing alone, affects no right held by the unsuccessful movant
because there is no substantial right to disqualify opposing counsel.
{¶ 10} Second, an order granting disqualification typically imposes a
permanent effect because it is unlikely to be reconsidered as a trial progresses.
Russell, 15 Ohio St. 3d at 41, 15 OBR 136, 472 N.E.2d 695, quoting Firestone
Tire & Rubber Co. v. Risjord (1981), 449 U.S. 368, 380, 101 S. Ct. 669, 66
L. Ed. 2d 571 (Rehnquist, J., concurring), quoting Cohen v. Beneficial Indus. Loan
Corp. (1949), 337 U.S. 541, 546-547, 69 S. Ct. 1221, 93 L. Ed. 1528 (“ [U]nlike
the denial of a motion disqualifying counsel, which is ‘ “subject to
reconsideration from time to time” ’ during the progress of the trial, a trial court,
for all practical purposes, will be unlikely to ever have an opportunity to change
its ruling granting disqualification”). Therefore, a grant of a motion to disqualify
counsel must be appealed immediately or its effect will be irreversible. An order
denying disqualification, however, lacks a similarly permanent effect. See
Russell at 41 (“In contrast to a motion denying disqualification, a motion so
granting is necessarily more conclusive. * * * It has irreparable and unreviewable
consequences for the individual who hired the disqualified counsel as well as for
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disqualified counsel”). That order may be revisited throughout trial, and the party
seeking disqualification may pursue other avenues, such as disciplinary
proceedings, to address any improprieties that occur.
{¶ 11} With these differences in mind, we cannot conclude that an order
denying disqualification in the divorce context requires immediate appeal to
ensure the protection of a substantial right. Accordingly, although it occurs in a
special proceeding, such a denial is not a final, appealable order under R.C.
2505.02(B)(2).
Conclusion
{¶ 12} We hold that in the context of divorce proceedings, the denial of a
motion to disqualify counsel is not a final, appealable order under R.C.
2505.02(B)(2). In so holding, we follow the reasoning of the Ninth District Court
of Appeals concerning such a denial, which does not affect a substantial right in a
special proceeding. Therefore, we answer the certified question in the negative
and affirm the judgment of the Ninth District Court of Appeals.
Judgment affirmed.
PFEIFER, ACTING C.J., and LUNDBERG STRATTON, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
O’CONNOR, C.J., not participating.
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Goldman & Rosen, Ltd., Gary M. Rosen, and Mark A. Riemer, for
appellant.
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