Suhay v. Fade , 2022 Ohio 1368 ( 2022 )

[Cite as Suhay v. Fade, 2022-Ohio-1368.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
RICHARD SUHAY, CASE NO. 2022-A-0008
Plaintiff-Appellant,
Civil Appeal from the
-v- Court of Common Pleas
VILMA FADE, et al.,
Trial Court No. 2017 CV 00043
Defendants-Appellees.
MEMORANDUM
OPINION
Decided: April 25, 2022
Judgment: Appeal dismissed
Robert S. Wynn, 7 Lawyers Row, P.O. Box 121, Jefferson, OH 44047 (For Plaintiff-
Appellant).
Patrick D. Quinn and Ronald A. Annotico, Quinn Legal Associates, Inc., 2802 SOM
Center Road, Suite 102, Willoughby Hills, OH 44094 (For Defendants-Appellees).
JOHN J. EKLUND, J.
{¶1} Appellant, Richard Suhay, through counsel, appeals a February 11, 2022
entry from the Ashtabula County Court of Common Pleas.
{¶2} On March 17, 2022, appellees, Vilma Fade and William Fade, filed a motion
to dismiss the appeal for lack of a final appealable order. In their motion, appellees allege
that the entry on appeal is a scheduling order, which is not a final appealable order.
{¶3} Appellant filed a brief in response to the motion to dismiss.
{¶4} We must determine if there is a final order, as this court may entertain only
those appeals from final judgments. Noble v. Colwell, 44 Ohio St.3d 92, 96 (1989).
According to Section 3(B)(2), Article IV of the Ohio Constitution, a judgment of a trial court
can be immediately reviewed by an appellate court only if it constitutes a “final order” in
the action. Germ v. Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶ 3. If a
lower court’s order is not final, then an appellate court does not have jurisdiction to review
the matter, and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am.,
44 Ohio St.3d 17, 20 (1989). For a judgment to be final and appealable, it must satisfy
the requirements of R.C. 2505.02 and if applicable, Civ.R. 54(B). See Children’s Hosp.
Med. Ctr. v. Tomaiko, 11th Dist. Portage No. 2011-P-0103, 2011-Ohio-6838, ¶ 3.
{¶5} R.C. 2505.02(B) defines a final order as one of the following:
{¶6} “An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
{¶7} “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶8} “(2) An order that affects a substantial right made in a special proceeding or
upon a summary application in an action after judgment;
{¶9} “(3) An order that vacates or sets aside a judgment or grants a new trial;
{¶10} “(4) An order that grants or denies a provisional remedy and to which both
of the following apply:
{¶11} “(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.
2
Case No. 2022-A-0008
{¶12} “(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims, and
parties in the action.
{¶13} “(5) An order that determines that an action may or may not be maintained
as a class action;
{¶14} “(6) An order determining the constitutionality of any changes to the Revised
Code * * *;
{¶15} “(7) An order in an appropriation proceeding * * *.”
{¶16} For R.C. 2505.02(B)(2) to apply to this case, the orders under review must
be made in a special proceeding, which is defined as “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). This case does not involve a special proceeding in
the context of final appealable orders. Thus, R.C. 2505.02(B)(2) does not apply.
{¶17} It is clear there is no entry vacating a judgment, granting a provisional
remedy, dealing with a class action, determining the constitutionality of Am. Sub. S.B.
281 or Sub. S.B. 80, or dealing with an appropriation proceeding. Therefore, R.C.
2505.02(B)(3)-(7) do not apply.
{¶18} For R.C. 2505.02(B)(1) to apply to the appealed entry, it must affect a
substantial right, determine the action, and prevent further judgment. Here, the entry
does not fit into this category. Appellant is appealing an order scheduling a hearing. The
hearing is about the privilege issue and to determine if appellant’s attorney’s testimony
relates to a significant issue in the case that may require him to be a trial witness. The
trial court also indicated that it “may receive evidence in camera if deemed appropriate.”
3
Case No. 2022-A-0008
The trial court has made no rulings on the issue of attorney-client privilege, in camera
review, or whether appellant’s attorney will be required to testify.
{¶19} Initially, we note that, in general, discovery issues are interlocutory in nature
and a trial court’s entry regarding those issues does not constitute a final appealable
order. Lancaster v. Mettler, 11th Dist. Trumbull No. 2019-T-0075, 2019-Ohio-5418, at ¶
18. However, provisional remedies ordering discovery of alleged privileged material are
final and appealable. See Cobb v. Shipman, 11th Dist. Trumbull No. 2011-T-0049, 2012-
Ohio-1676 (an order compelling the production of privileged documents to an opposing
party constitutes a final appealable order).
{¶20} Here, the trial court’s February 11, 2022 entry simply discussed scheduling
a hearing which was set by a separate notice. There was no order or entry dismissing or
terminating the case or an entry of judgment. An interlocutory order is simply not a final
appealable order. This appeal has been prematurely filed. Appellant will have a
meaningful and effective remedy by means of an appeal once a final judgment is reached.
See Children’s Hosp. Med., supra at ¶ 5.
{¶21} Based upon the foregoing, appellee’s motion to dismiss is granted, and this
appeal is hereby dismissed for lack of a final appealable order.
{¶22} Appeal dismissed.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
4
Case No. 2022-A-0008