In re Guardianship of Sharp , 2014 Ohio 3613 ( 2014 )

[Cite as In re Guardianship of Sharp, 2014-Ohio-3613.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF THE GUARDIANSHIP : JUDGES:
OF ELLEN JANE POWELSON SHARP :
: Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. CT2014-0003
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Probate Court, Case No. 20112052
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: August 21, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant Ellen Sharp
MICHAEL T. BRYAN PHILIP S. PHILLIPS
Stubbins, Watson & Bryan Co., LPA Gottlieb, Johnston, Beam &
P.O. Box 488 Dal Ponte, PLL
Zanesville, OH 43702 320 Main Street, P.O. Box 190
Zanesville, OH 43702
For Defendant-Appellant Fountain Sharp
SCOTT D. EICKELBERGER
DAVID J. TARBERT
RYAN H. LINN
Kincaid, Taylor & Geyer
50 N. 4th Street
Zanesville, OH 43702
Muskingum County, Case No. CT2014-0003 2
Baldwin, J.
{¶1} Appellants Ellen and Fountain Sharp appeal a judgment of the Muskingum
County Probate Court lifting a stay on discovery requests directed to Ellen Sharp and
removing a protective order previously granted to Fountain Sharp concerning discovery.
Appellee is Marian Davis Sharp Thompson.
STATEMENT OF FACTS AND CASE
{¶2} In 2005, appellant Ellen Sharp executed a general durable power of
attorney and a durable health care power of attorney, naming her son Fountain as
attorney-in-fact. On October 20, 2011, appellee filed an application to be appointed
guardian of her mother, appellant Ellen Sharp. In her application, appellee represented
that Fountain had prevented Ellen from contacting both appellee and her sister for many
years, concerns had been noted by friends and relayed to appellee and to appellee’s
sister, and appellee was concerned about the “manipulation and control” Fountain had
exerted over their mother’s significant assets.
{¶3} Appellant Fountain Sharp filed a motion to dismiss the application, arguing
that the power of attorney arrangement already in place was sufficient to care for his
mother’s current needs, and in the alternative asking to be appointed as his mother’s
guardian should the court find a guardianship arrangement to be necessary.
{¶4} Appellee filed numerous requests for documents and records from both
appellants, including medical and financial records dating back to the year 2000.
Appellants filed a motion for a protective order, arguing that some of the information
was confidential, and further that the request was burdensome and unwarranted.
Muskingum County, Case No. CT2014-0003 3
Appellants further argued that any inquiry into records prior to January 1, 2009, when
Ellen began showing signs of memory loss, was unwarranted.
{¶5} The trial court granted appellant Fountain Sharp’s motion for a protective
order, limiting discovery to any transactions involving Fountain’s use of the power of
attorney, or to any transaction by Fountain involving Ellen’s assets. The court stayed all
discovery concerning Ellen Sharp pending Fountain’s response to the court’s discovery
order.
{¶6} Fountain Sharp filed his response to the court’s discovery order on
February 2, 2012. On December 13, 2013, the trial court lifted the stay on all discovery
requests to Ellen Sharp, and ordered her to provide full answers to all discovery
requests by January 13, 2014. The court further modified the protective order, stating
that discovery requests to Fountain should not be limited, and ordering Fountain to
answer all discovery requests by January 13, 2014. Appellants filed a notice of appeal,
assigning three errors:
{¶7} “I. THE TRIAL COURT ERRED IN LIFTING THE STAY ON DISCOVERY
REQUESTS DIRECTED TO ELLEN JANE POWELSON SHARP AND ORDERING
DISCLOSURE OF FULL AND COMPLETE ANSWERS TO ALL DISCOVERY
REQUESTS.
{¶8} “II. THE TRIAL COURT ERRED IN LIFTING THE STAY ON
DISCOVERY REQUESTS DIRECTED TO FOUNTAIN SHARP, ORDERING
DISCLOSURE OF FULL AND COMPLETE ANSWERS TO ALL DISCOVERY
REQUESTS, AND ORDERING THAT THE DISCOVERY REQUEST AS TO FOUNTAIN
SHARP WILL NOT BE LIMITED IN ANY WAY.
Muskingum County, Case No. CT2014-0003 4
{¶9} “III. THE TRIAL COURT ERRED IN ORDERING THE DISCLOSURE OF
PRIVILEGED, CONFIDENTIAL INFORMATION THAT IS NOT RELEVANT, NOT
REASONABLY CALCULATED TO LEAD TO DISCOVERABLE MATERIAL, AND IS
DESIGNED MERELY TO HARASS APPELLANTS.”
{¶10} We first address appellee’s argument that the order appealed from is not a
final, appealable order. The discovery requests which the court has ordered appellants
to answer include a request for all medical records dating back to January 1, 2000. This
Court has previously held that a discovery order compelling the production of medical
documents is a final, appealable order. Banks v. Ohio Physical & Medical
Rehabilitation, Inc., 5th Dist. Fairfield No. 07CA68, 2008-Ohio-2165, ¶16. Further, the
discovery request includes business records which appellant Fountain Sharp has
claimed are confidential. This Court has previously held that a discovery order which
orders the disclosure of confidential business material qualifies as a provisional remedy
pursuant to R.C. 2505.02(A)(3) and is a final, appealable order. Northeast Professional
Home Care, Inc. v. Advantage Home Health Services, Inc., 188 Ohio App.3d 704,
2010–Ohio–1640, 936 N.E.2d 964, ¶ 34. Therefore, we find that the judgment appealed
from in this case is a final, appealable order.
I., II., III.
{¶11} Appellants argue in all three assignments of error that the court erred by
compelling discovery of all materials requested by appellee, including medical records,
financial records, and business records.
{¶12} This court may not reverse a trial court's decision on a motion to compel
discovery absent an abuse of discretion. State ex rel. The V Cos. v. Marshall, 81 Ohio
Muskingum County, Case No. CT2014-0003 5
St.3d 467, 469, 692 N.E.2d 198 (1998). The Supreme Court has frequently defined the
abuse of discretion standard as implying that the court's attitude was unreasonable,
arbitrary, or unconscionable. Id.{¶13} Civ. R. 26(B)(1) generally defines the scope of discovery:
{¶14} “Parties may obtain discovery regarding any matter, not privileged, which
is relevant to the subject matter involved in the pending action, whether it relates to the
claim or defense of the party seeking discovery or to the claim or defense of any other
party, including the existence, description, nature, custody, condition and location of any
books, documents, electronically stored information, or other tangible things and the
identity and location of persons having knowledge of any discoverable matter. It is not
ground for objection that the information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the discovery of admissible
evidence.”
{¶15} Civ. R. 26(C) provides for the issuance of a protective order:
{¶16} “Upon motion by any party or by the person from whom discovery is
sought, and for good cause shown, the court in which the action is pending may make
any order that justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or more of the
following: (1) that the discovery not be had; (2) that the discovery may be had only on
specified terms and conditions, including a designation of the time or place; (3) that the
discovery may be had only by a method of discovery other than that selected by the
party seeking discovery; (4) that certain matters not be inquired into or that the scope of
the discovery be limited to certain matters; (5) that discovery be conducted with no one
Muskingum County, Case No. CT2014-0003 6
present except persons designated by the court; (6) that a deposition after being sealed
be opened only by order of the court; (7) that a trade secret or other confidential
research, development, or commercial information not be disclosed or be disclosed only
in a designated way; (8) that the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the court.”
{¶17} Civ. R. 26(C) recognizes the inherent power of the court to control
discovery. Wooten v. Westfield Ins. Co., 181 Ohio App.3d 59, 907 N.E.2d 1219, 2009–
Ohio–494, ¶ 20. Therefore, where a discovery request is too broad, the trial court has
the authority to conduct an in camera inspection of the requested records even when a
party does not specifically request an in camera inspection. Id. at ¶ 21. This Court has
previously held that a court abuses its discretion in ordering production of medical
records without first conducting an in camera inspection to determine whether the
records are subject to disclosure pursuant to R.C. 2317.02(B). Bircher v. Durosko, 5th
Dist. Fairfield No. 13-CA-62, 2013-Ohio-5873; Collins v. Interim Healthcare of
Columbus, 5th Dist. Perry No. 13-CA-00003, 2014-Ohio-40.
{¶18} In the instant case, appellants have argued that some of the requested
material is privileged. Physicians’ records are generally privileged, although R.C.
2317.02(B) sets forth situations in which the patient is deemed to have waived that
privilege. The court made no finding that the privilege had been waived pursuant to
statute. Further, appellee’s discovery request seeks disclosure of virtually every
financial, business, and medical record pertaining to Ellen and Fountain Sharp over a
period of time from January of 2000 to the present. Appellants claimed the request
was unwarranted and burdensome, arguing the scope is overbroad, and that some of
Muskingum County, Case No. CT2014-0003 7
the business records are confidential. Based on the claim of privilege, the broad scope
of the discovery request, and the personal nature of the requested materials as to both
Fountain and Ellen Sharp, the trial court abused its discretion in not first conducting an
in camera inspection of the records to determine what records are protected from
discovery by medical or other privilege, and which records are in fact relevant to the
guardianship proceeding as defined in Civ. R. 26(B)(1).
{¶19} The first, second and third assignments of error are sustained. The
judgment of the Muskingum County Probate Court is reversed. This cause is remanded
to that court for further proceedings according to law, consistent with this opinion. Costs
are assessed to appellee.
By: Baldwin, J.
Gwin, P.J. and
Farmer, J. concur.