Jones v. Gori

[Cite as Jones v. Gori, 2018-Ohio-4655.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
KATHLEEN JONES, :
Plaintiff-Appellee, : CASE NO. CA2018-07-068
: OPINION
- vs - 11/19/2018
:
RANDY L. GORI, et al., :
Defendants-Appellants. :
CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 17CV090481
John J. Mueller, 632 Vine Street, Suite 800, Cincinnati, OH 45202, for plaintiff-appellee
Joseph W. Borchelt, Ian D. Mitchell, 525 Vine Street, Suite 1700, Cincinnati, OH 45202, for
defendants-appellants
S. POWELL, P.J.
{¶ 1} This case is before the court pursuant to a motion to dismiss appeal for lack
of a final appealable order filed by plaintiff-appellee, Kathleen Jones. Defendants-
appellants, Randy L. Gori, Gori Julian & Associates, John Barry Julian, Sara M. Salger, Erin
L. Beavers, Martavious Thomas, David Todd Matthews, and Brandon Belt (collectively
"Gori"), oppose Jones' motion to dismiss relying, in part, on this court's prior decision in
Huegemann v. VanBakel, 12th Dist. Fayette No. CA2013-08-022, 2014-Ohio-1888.
Warren CA2018-07-068
{¶ 2} On November 22, 2017, Jones filed a legal malpractice suit in the Warren
County Court of Common Pleas naming Gori as the defendants. Jones' legal malpractice
suit stemmed from an underlying asbestos case brought in Illinois involving Jones and her
now deceased husband. Gori subsequently moved to dismiss Jones' suit for lack of
personal jurisdiction. The trial court denied Gori's motion to dismiss on June 7, 2018. In
so holding, the trial court found the factors in favor of dismissing Jones' legal malpractice
suit "for one filed in Illinois do not outweigh the factors in favor of permitting the case to
remain here."
{¶ 3} On July 6, 2018, Gori filed a notice of appeal from the trial court's decision.
Shortly thereafter, the trial court issued an order deeming its prior decision a final
appealable order; specifically, that its "decision and entry issued by this Court on June 7,
2018 did not properly contain a Civ.R. 58(B) notice to the Warren County Clerk of Courts
that the decision was a final appealable order." In reaching this decision the trial court cited
this court's prior decision in Huegemann.
{¶ 4} In Huegemann, this court determined that a motion to dismiss for lack of
personal jurisdiction qualified as a provisional remedy under R.C. 2505.02(B)(4), thereby
rendering that decision a final appealable order. In so holding, this court determined that
because foreign defendants from different countries were involved, "the litigation costs and
delay in recovering money from the Huegemanns that appellants undoubtedly will
experience should they ultimately prevail in the litigation are sufficient to establish the
absence of a meaningful and effective remedy for purposes of R.C. 2505.02(B)(4)(b)."
(Emphasis sic.) Id. at ¶ 24.
{¶ 5} This court's decision in Huegemann has not been relied on by any court
following its release. This court's decision has instead been called into question by two of
our sister districts; namely, the First District Court of Appeals in Gardner v. Ford, 1st Dist.
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Hamilton No. C-150018, 2015-Ohio-4242 and the Eighth District Court of Appeals in
Nejman v. Charney, 8th Dist. Cuyahoga No. 102584, 2015-Ohio-4087. This was due in
part to what the First District characterized in Gardner as "decades of case law to the
contrary." Id. at ¶ 11.
{¶ 6} In reviewing our decision in Huegemann in light of the contrary holdings
issued by the First and Eighth Districts in Charney and Ford, we find Huegemann was
incorrectly decided. The denial of a motion to dismiss based on lack of personal jurisdiction
does not satisfy the requirements for a provisional remedy because it was directed toward
resolution of the main action itself and does not involve a proceeding ancillary to the main
action as required by R.C. 2505.02(A)(3). Further, as noted by the Ohio Supreme Court,
"[a]bsent a patent and unambiguous lack of jurisdiction, a post-judgment appeal from a
decision overruling a motion to dismiss for lack of personal jurisdiction will provide an
adequate legal remedy[.]" State ex rel. Toma v. Corrigan, 92 Ohio St.3d 589, 591 (2001).
Therefore, based upon the well-settled principle that a trial court's decision denying a motion
to dismiss for lack of personal jurisdiction is not a final appealable order, see Gardener at ¶
11, this court's decision in Huegemann is hereby overruled and will not be followed.
{¶ 7} The motion to dismiss this appeal for lack of a final appealable order is granted
and this appeal is hereby dismissed with prejudice.
{¶ 8} Appeal dismissed.
M. POWELL, J., concurs.
HENDRICKSON, J. concurs in judgment only.
HENDRICKSON, J., concurring in judgment only.
{¶ 9} I agree with this court's decision to grant Jones' motion to dismiss for lack of
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a final appealable order. I write separately, however, to note my disagreement with this
court's decision to overrule Huegemann v. VanBakel, 12th Dist. Fayette No. CA2013-08-
022, 2014-Ohio-1888.
{¶ 10} This court's decision in Huegemann dealt with a singularly unique set of facts
and circumstances that, in my opinion, obligated this court to find the motion to dismiss for
lack of personal jurisdiction at issue in that case was a final appealable order subject to
review. This is because, as this court stated in Huegemann:
[G]iven the circumstances of this case in which foreign
defendants from not just different states but different countries
are involved, we conclude that the litigation costs and delay in
recovering money from the Huegemanns that appellants
undoubtedly will experience should they ultimately prevail in the
litigation are sufficient to establish the absence of a meaningful
and effective remedy for purposes of R.C. 2505.02(B)(4)(b).
(Emphasis sic.) Id. at ¶ 24.
This holding was necessary despite the well-settled principle that a trial court's decision
denying a motion to dismiss for lack of personal jurisdiction is not normally considered a
final appealable order.
{¶ 11} Unlike in Huegemann, this case does not present such a singularly unique set
of facts and circumstances that would necessitate a similar result here. The record in this
case is clear that the parties involved are within close proximity to one another; Jones
residing in Ohio with Gori in Illinois. This is markedly different from Huegemann in which
the foreign defendants were not just from different states but different countries. Therefore,
contrary to the unique facts and circumstances presented in Huegemann, I find under the
facts and circumstances of this case that any litigation costs and delay in recovering money
damages should Jones ultimately prevail in this case are insufficient to establish the
absence of a meaningful and effective remedy for purposes of R.C. 2505.02(B)(4)(b).
{¶ 12} Such a holding is admittedly fact-based. But, as this court is well-aware, many
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cases turn on the unique facts and circumstances presented for review. The facts and
circumstances, coupled with the applicable law, are then used to issue what this court
believes to be a just and verdant decision. See, e.g., Martin v. Durrani, 12th Dist. Butler
Nos. CA2016-01-022 and CA2016-01-023, 2016-Ohio-5472, ¶ 15 (finding the trial court
abused its discretion by granting appellees' motion for a new trial "based on the unique
facts and circumstances" presented). I see no reason why this court, or any other court,
should abstain from considering the unique facts and circumstances of each case to
determine whether a motion to dismiss for lack of personal jurisdiction constitutes a final
appealable order subject to review.
{¶ 13} The application of this fact-based test may lead to varying results in seemingly
similar circumstances. However, just as when applying the test to determining whether
offenses are allied offenses of similar import, the application of this test "'may result in
varying results for the same set of offenses in different cases. But different results are
permissible'" when making such an "'inherently subjective determination.'" State v. Ruff,
143 Ohio St.3d 114, 2015-Ohio-99, ¶ 32, quoting State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, ¶ 52. Therefore, considering the great significance that the facts and
circumstances of each case present, I disagree with this court's decision to overrule
Huegemann. This is because, as noted above, the unique facts and circumstances of each
case are critical in determining whether a motion to dismiss for lack of personal jurisdiction
constitutes a final appealable order subject to review.
{¶ 14} In light of the foregoing, while I agree with this court's decision to granting
Jones' motion to dismiss for lack of a final appealable order in this case, I must concur in
judgment only.
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