Nami v. Nami

[Cite as Nami v. Nami, 2017-Ohio-8330.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Veda C. Nami, :
Plaintiff-Appellee, : No. 17AP-265
(C.P.C. No. 15DR-2194)
v. :
(ACCELERATED CALENDAR)
Majeed S. Nami, :
Defendant-Appellant, :
Nami Capital Partners, LLC et al., :
Third-Party Defendants/ :
Appellees.
:
D E C I S I O N
Rendered on October 26, 2017
On brief: Sowald Sowald Anderson Hawley & Johnson, and
Marty Anderson, for appellee.
On brief: Wolinetz and Horvath LLC, and Barry H.
Wolinetz, for appellant. Argued: Barry H. Wolinetz.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
BROWN, J.
{¶ 1} Majeed S. Nami, defendant-appellant, appeals from the judgment entry of
the Franklin County Court of Common Pleas, Division of Domestic Relations, in which the
court denied appellant's motion to vacate judgment entry/order for discovery compliance.
{¶ 2} Appellant and Veda C. Nami, plaintiff-appellee, were married in 1978, and
have three emancipated children. On June 11, 2015, appellee filed a complaint for divorce,
naming appellant as defendant and 11 entities as third-party defendants. On July 6, 2015,
No. 17AP-265 2
the defendants filed a motion to dismiss the complaint, claiming the trial court lacked
personal and/or subject-matter jurisdiction.
{¶ 3} On August 3, 2015, appellee served appellant a request for production of
documents.
{¶ 4} On November 6, 2015, appellant served appellee a first request for
production of documents.
{¶ 5} On December 10, 2015, the trial court issued a judgment entry denying the
defendants' motion to dismiss the complaint. The court clarified in a later entry that it had
jurisdiction only over appellant and two of the named defendant entities.
{¶ 6} On January 12, 2016, appellee filed a motion to compel regarding her
August 3, 2015 request for production of documents.
{¶ 7} On January 19, 2016, appellee filed a motion seeking a temporary protective
order regarding appellant's first request for production of documents.
{¶ 8} On March 30, 2016, the magistrate issued an order excusing appellee from
appellant's November 6, 2015 discovery request until appellant produced or allowed
inspection of the documents requested by appellee. The order indicated that once
appellee's request for production of documents was satisfied, appellee would have 28 days
to comply with appellant's discovery request.
{¶ 9} On October 5, 2016, the trial court entered a judgment entry/order for
discovery compliance. The entry ordered appellant produce or permit inspection and
copying of certain documents by October 20, 2016; appellant's tax accountant produce all
financial information related to appellant and his related entities; the parties report to the
court on November 4, 2016 regarding compliance with the order; and appellee would not
be required to produce discovery until compliance was confirmed at the November 4,
2016 hearing.
{¶ 10} Appellant subsequently produced certain discovery and permitted appellee
to review records at his place of business on February 24, 2017.
{¶ 11} On March 12, 2017, appellant filed a motion to vacate judgment entry/order
for discovery compliance filed October 5, 2016, but did not indicate any reason for doing
so in his motion. On March 16, 2017, appellee filed a motion to dismiss appellant's motion
to vacate judgment entry/order for discovery compliance, arguing there was no good
reason to vacate the October 5, 2016 judgment entry, and appellant had still not complied
No. 17AP-265 3
with that order. Also on March 16, 2017, the trial court issued a judgment entry, in which
it denied appellant's motion to vacate judgment entry/order for discovery compliance,
indicating that the totality of circumstances demonstrates that the judgment entry was
equitable. Appellant appeals the judgment of the trial court, asserting the following
assignments of error:
I. THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN ISSUING THE JUDGMENT ENTRY OF
MARCH 16, 2017.
a. THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION WHEN IT DID NOT CONDUCT AN
EVIDENTIARY HEARING AND WHEN IT DID NOT SET
FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW
WITH REGARD TO THE REASONS SUPPORTING ITS
DECISION IN THE JUDGMENT ENTRY OF MARCH 16,
2017.
b. THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION WHEN IT PREVENTED THE APPELLANT
FROM CONDUCTING DISCOVERY.
(Emphasis sic.)
{¶ 12} Initially, we must address appellee's argument that appellant's appeal is not
from a final appealable order. Article IV, Section 3(B)(2), of the Ohio Constitution limits
an appellate court's jurisdiction to the review of final orders. " 'A final order * * * is one
disposing of the whole case or some separate and distinct branch thereof.' " Noble v.
Colwell, 44 Ohio St. 3d 92, 94 (1989), quoting Lantsberry v. Tilley Lamp Co., 27 Ohio
St.2d 303, 306 (1971). An appellate court must dismiss an appeal taken from an order that
is not final and appealable. Farmers Mkt. Drive-In Shopping Ctrs., Inc. v. Magana, 10th
Dist. No. 06AP-532, 2007-Ohio-2653, ¶ 10, citing Renner's Welding & Fabrication, Inc.
v. Chrysler Motor Corp., 117 Ohio App. 3d 61, 64 (4th Dist.1996).
{¶ 13} The Supreme Court of Ohio has set forth a two-step analysis for
determining whether an order is final and appealable. Gen. Acc. Ins. Co. v. Ins. Co. of N.
Am., 44 Ohio St. 3d 17, 21 (1989). First, the appellate court must determine whether the
order constitutes a final order as defined by R.C. 2505.02. Id. If the order is final under
R.C. 2505.02, the court must determine whether Civ.R. 54(B) applies. Id. Civ.R. 54(B)
provides, in part, as follows:
No. 17AP-265 4
In the absence of a determination that there is no just reason
for delay, any order or other form of decision, however
designated, which adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties, shall not
terminate the action as to any of the claims or parties, and the
order or other form of decision is subject to revision at any
time before the entry of judgment adjudicating all the claims
and the rights and liabilities of all the parties.
{¶ 14} Thus, if Civ.R. 54(B) language is required, the court must determine
whether the order contains a certification that "there is no just reason for delay." Where
an order adjudicates fewer than all claims in a case, it must meet the requirements of both
R.C. 2505.02 and Civ.R. 54(B) to be final and appealable. Noble at syllabus.
{¶ 15} For purposes of Civ.R. 54(B) certification, the trial court makes a factual
determination of whether or not an interlocutory appeal is consistent with the interests of
sound judicial administration. Wisintainer v. Elcen Power Strut Co., 67 Ohio St. 3d 352
(1993), paragraph one of the syllabus. An appellate court reviews these findings under a
competent, credible evidence standard, see Hausman v. Dayton, 2d Dist. No. 13647
(Dec. 22, 1993), rev'd on other grounds, 73 Ohio St. 3d 671 (1995), with the focus being
whether the court's determination serves judicial economy at the trial level. Wisintainer
at 355. While this is a very deferential standard, and appellate courts have been reluctant
to strike such a certification, the trial court's use of the "magic language" of Civ.R. 54(B)
does not, by itself, convert a final order into a final appealable order. See Ralston v.
Scalia, 5th Dist. No. CA-9344 (Jan. 10, 1994) (appeal dismissed for lack of final
appealable order notwithstanding the presence of no just reason for delay language).
{¶ 16} R.C. 2505.02 defines "final orders" as, among other things:
(B) 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:
(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;
No. 17AP-265 5
(3) An order that vacates or sets aside a judgment or grants a
new trial;
(4) An order that 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.
(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.
{¶ 17} In the present case, appellant did not mention in his motion to vacate
under what legal theory he sought vacation. Assuming he meant it to be a motion to
vacate, pursuant to Civ.R. 60(B), it is well-settled that a trial court's denial of a motion to
vacate a judgment pursuant to Civ.R. 60(B) is a final appealable order. Colley v. Bazell, 64
Ohio St. 2d 243, 245 (1980). However, a Civ.R. 60(B) motion to vacate lies only from a
"final judgment, order, or proceeding." When the underlying order is not itself a final
judgment, Civ.R. 60(B) is not a proper procedural mechanism for relief and it cannot be
used to convert an otherwise non-final judgment into a final appealable order. Kalapodis
v. Hall, 9th Dist. No. 22386, 2005-Ohio-2567, ¶ 10.
{¶ 18} " 'Discovery orders have long been recognized as interlocutory,' and are
neither final nor appealable." State v. Colon, 8th Dist. No. 103150, 2016-Ohio-707, ¶ 10,
quoting Klein v. Bendix-Westinghouse Automotive Air Brake Co., 13 Ohio St. 2d 85, 87
(1968). See also Williamson v. Recovery L.P., 10th Dist. No. 15AP-638, 2016-Ohio-1087,
¶ 6, citing Concheck v. Concheck, 10th Dist. No. 07AP-896, 2008-Ohio-2569, ¶ 8
(generally, discovery orders are not final and appealable). In other words, because the
trial court's judgment is subject to revision, it does not fully determine the proceedings.
Colon at ¶ 10. Furthermore, discovery orders that deny discovery, in particular, are not
typically considered final appealable orders. Curtis v. Adult Parole Auth., 10th Dist. No.
04AP-1214, 2005-Ohio-4781, ¶ 12 (discovery orders are generally interlocutory and, as
such, are neither final nor appealable, especially those that deny discovery). Here, the
only aspect of the October 5, 2016 discovery order to which appellant objects in his
appellate brief is the trial court's denial of his ability to procure discovery from appellee
No. 17AP-265 6
until he fully complied with appellee's discovery requests. Although appellant claimed it
would hamper his ability to prepare for trial, the order merely denied him discovery
temporarily until he complied with the court's order to comply with appellee's discovery
requests. Thus, the trial court's October 5, 2016 entry would usually be considered an
interlocutory order.
{¶ 19} However, certain discovery orders may be final if they are considered
provisional remedies under R.C. 2505.02(B)(4). A provisional remedy "means a
proceeding ancillary to an action, including, but not limited to, a proceeding for a
preliminary injunction, attachment, discovery of privileged matter, [or] suppression of
evidence." R.C. 2505.02(A)(3). Very few discovery proceedings qualify as provisional
remedies. Myers v. Toledo, 110 Ohio St. 3d 218, 2006-Ohio-4353, ¶ 24. "The General
Assembly stopped short of including all discovery orders in the provisional-remedy
section." Furthermore, in Smith v. Chen, 142 Ohio St. 3d 411, 2015-Ohio-1480, ¶ 8, the
Supreme Court found that a party attempting to appeal an order compelling discovery of
privileged materials must establish, pursuant to R.C. 2505.02(B)(4)(b), that an immediate
appeal is necessary to afford the appellant a meaningful and effective remedy.
{¶ 20} Here, appellant has never claimed any of the discovery sought by appellee
was privileged, and, as mentioned before, appellant does not contest the portion of the
discovery order that compels him to comply with appellee's discovery requests; he only
argues that the order unfairly prohibited him from conducting his own discovery. Thus,
R.C. 2505.02(B)(4) does not assist appellant.
{¶ 21} In addition, appellant cannot show, under R.C. 2505.02(B)(4)(a) that the
trial court's October 5, 2016 order prevented a judgment with respect to the provisional
remedy. Pursuant to the order, appellant clearly is entitled to commence discovery as
soon as he complies with appellee's discovery requests. Likewise, appellant cannot show,
under R.C. 2505.02(B)(4)(b), that he would not be afforded a meaningful or effective
remedy by an appeal following final judgment. The prohibition against appellant's
conducting discovery is only temporary. Assuming appellant eventually complies fully
with the October 5, 2016 order, he will be permitted to engage in discovery, and all
discovery matters will be resolved by the time of the final decree without any meaningful
prejudice being suffered by appellant.
No. 17AP-265 7
{¶ 22} Therefore, the trial court's October 5, 2016 order regarding discovery was
not a "provisional remedy" as defined by R.C. 2505.02(A)(3). Instead, the trial court's
October 5, 2016 order was merely an interlocutory order subject to modification. See
Civ.R. 54(B) (interlocutory orders are subject to revision). Because Civ.R. 60(B) may only
be used to obtain relief from final judgments, appellant's purported motion to vacate was
more properly a motion for reconsideration. Hack v. Keller, 9th Dist. No. 14CA0036-M,
2015-Ohio-4128, ¶ 15 (purported motion to vacate pursuant to Civ.R. 60(B) was a
mislabeled motion for reconsideration because Civ.R. 60(B) may only be used to obtain
relief from final judgments); see also State ex rel. Dewine v. Big Sky Energy, Inc., 11th
Dist. No. 2014-A-0060, 2015-Ohio-2594, ¶ 27, citing Thorpe v. Oakford, 11th Dist. No.
94-P-0057 (Jan. 19, 1996) (a motion that seeks relief from an interlocutory order is more
properly characterized as a motion for reconsideration). The reconsideration of an
interlocutory order is itself an interlocutory order, not subject to appeal. G.S. v. Khavari,
11th Dist. No. 2016-T-0036, 2016-Ohio-5187, ¶ 12, citing State v. Beck, 11th Dist. No.
2014-P-0050, 2015-Ohio-1069, ¶ 41; Beyke v. Beyke, 3d Dist. No. 14-05-13, 2005-Ohio-
5465, ¶ 17. This principle is consistent with the general rule that a trial court has plenary
power to review its own interlocutory rulings prior to entering final judgment. Vanest v.
Pillsbury Co., 124 Ohio App. 3d 525, 535 (4th Dist.1997).
{¶ 23} Thus, because the trial court's order denying appellant's motion to vacate
the discovery order was an interlocutory order reconsidering an underlying interlocutory
order, it does not constitute a final appealable order. Therefore, this court does not have
jurisdiction to consider appellant's substantive challenges to the trial court's denial on
appeal.
{¶ 24} Accordingly, we find the judgment entry of the Franklin County Court of
Common Pleas, Division of Domestic Relations, from which appellant appealed, was not a
final appealable order. Appellant's appeal is therefore dismissed.
Appeal dismissed.
DORRIAN and HORTON, JJ., concur.
____________________