Summitbridge Natl. Invests., L.L.C. v. Ameritek Custom Homes, Inc. , 2013 Ohio 760 ( 2013 )

[Cite as Summitbridge Natl. Invests., L.L.C. v. Ameritek Custom Homes, Inc., 2013-Ohio-760.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
SUMMITBRIDGE NATIONAL : APPEAL NO. C-120476
INVESTMENTS, LLC, TRIAL NO. A-0804913
:
Plaintiff-Appellant, O P I N I O N.
:
vs.
:
AMERITEK CUSTOM HOMES, INC.,
et al, :
Defendants, :
and :
TIMOTHY P. OLIVERIO, :
KELLY LOUIS OLIVERIO, :
LYNNE BAYER, :
AMBER N. MANGOLD, :
LORAINE A. DAHLHEIMER, :
PATRICE DAHLHEIMER, :
ADAM JANSZEN, :
MICHAEL S. ROSING, :
DONALD G. SEYFERTH, :
JACQUELINE M. SEYFERTH, :
DANIEL G. LEE, :
DAVID J. DIXON, :
and :
OHIO FIRST DISTRICT COURT OF APPEALS
CARRIE M. MEYER :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: March 6, 2013
Graydon Head & Ritchey LLP, Scott K. Jones and Robin D. Miller, for Plaintiff-
Appellant,
Adams, Stepner, Woltermann & Dusing, PLLC, Glenn E. Algie and Andrew J.
Vandiver, for Defendants-Appellees.
Please note: this case has been removed from the accelerated calendar.
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OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Presiding Judge.
{¶1} Plaintiff-appellant SummitBridge National Investments, LLC
(“SummitBridge”), has appealed from the trial court’s ruling on a motion to compel
discovery filed by defendants-appellees Timothy and Kelly Oliverio, Lynn Bayer,
Amber Mangold, Loraine and Patrice Dahlheimer, Adam Janszen, Michael Rosing,
Donald and Jacqueline Seyferth, Daniel Lee, David Dixon, and Carrie Meyer (“the
defendants”).
{¶2} In August of 2009, SummitBridge joined the defendants in an ongoing
foreclosure action that it had initiated in 2008. SummitBridge later dismissed the
defendants from the lawsuit just prior to trial. Following their dismissal, the
defendants filed a motion for sanctions against SummitBridge, alleging that
SummitBridge had frivolously joined them in the lawsuit despite knowledge that it
had no valid claim to the defendants’ properties.
{¶3} The defendants served SummitBridge with various discovery requests,
including interrogatories, requests for admissions, and requests for production of
documents. SummitBridge objected to many of the discovery requests on the ground
that the defendants had sought information protected by the attorney-client
privilege. After the parties were unable to resolve their discovery disputes, the
defendants filed a motion to compel seeking disclosure of two particular items:
SummitBridge’s attorney fees, and all documents evidencing the decision to dismiss
the defendants from the foreclosure action. In an entry granting the motion to
compel, the trial court found that SummitBridge was required to produce the
requested information regarding attorney fees. With respect to the documents
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OHIO FIRST DISTRICT COURT OF APPEALS
evidencing the decision to dismiss the defendants from the lawsuit, the trial court
held that
[T]he Court hereby orders that unless Plaintiff is waiving any “advice of
counsel” defense to the motion for sanctions for frivolous litigation,
Plaintiff shall produce the requested communications. And, if Plaintiff’s
counsel will testify at all in connection with the sanctions proceeding, then
Plaintiff shall produce the requested communications.
{¶4} SummitBridge has appealed from this latter portion of the trial court’s
entry. In its sole assignment of error, it challenges the trial court’s entry on the
ground that the court had ordered the production of documents containing
information covered by the attorney-client privilege. But because the entry appealed
from was not a final order, we must dismiss SummitBridge’s appeal.
{¶5} This court’s appellate jurisdiction is limited to the review of final
judgments of lower courts. Ohio Constitution, Article IV, Section 3(B)(2). Before we
may exercise our jurisdiction over any given case, the order appealed from must be
final and meet the requirements of R.C. 2505.02. See Hadassah v. Schwartz, 1st
Dist. No. C-110699, 2012-Ohio-3910, ¶ 6. R.C. 2505.02(B)(4) provides that an order
is final when it
Grants or denies a provisional remedy and to which both of the
following apply: (a) The order in effect determines the action with
respect to the provisional remedy and prevents a judgment in the
action in favor of the appealing party with respect to the provisional
remedy [and;] (b) The appealing party would not be afforded a
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OHIO FIRST DISTRICT COURT OF APPEALS
meaningful or effective remedy by an appeal following final judgment
as to all proceedings, issues, claims, and parties in the action.
{¶6} Generally, discovery orders are neither final nor appealable. Grace v.
Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, ¶ 33 (1st
Dist.). But a proceeding concerning the discovery of privileged material is one type
of provisional remedy contemplated by R.C. 2505.02(A)(3). For an order concerning
the discovery of privileged material to be final and appealable, it must meet the
requirements contained in R.C. 2505.02(B)(4). Here, the trial court’s order did not
meet those necessary requirements.
{¶7} The court’s order did not determine the action with respect to the
provisional remedy, namely the compelled production of allegedly privileged
material. In its entry, the trial court never formally ordered the production of
privileged material. Rather, the court’s entry was conditional in nature and advised
the parties as to how discovery would proceed going forward based on particular
actions taken by SummitBridge. The trial court held that “unless Plaintiff is waiving
any ‘advice of counsel’ defense * * *, Plaintiff shall produce the requested
communications.” The entry further held that “if Plaintiff’s counsel will testify at all
in connection with the sanctions proceeding, then Plaintiff shall produce the
requested communications.” The trial court’s entry left SummitBridge with several
possible courses of action which would determine whether the items would be
subject to compelled discovery.
{¶8} The rationale for finding that an order compelling the discovery of
privileged material is final and appealable is to “prevent the dissemination of
protected materials, and to avoid the quagmire of being unable to unring the
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OHIO FIRST DISTRICT COURT OF APPEALS
proverbial bell.” Dispatch Printing Co. v. Recovery Ltd. Partnership, 166 Ohio
App.3d 118, 2006-Ohio-1347, 849 N.E.2d 297, ¶ 13 (10th Dist). Here, neither
concern is present. No protected materials have been ordered to be produced, and
no irreversible action has been taken.
{¶9} SummitBridge has not appealed from a final and appealable order.
Consequently, the appeal is dismissed.
Appeal dismissed.
HILDEBRANDT and DEWINE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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