[Cite as In re Estate of Adkins, 2016-Ohio-5602.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
: Case No. 16CA22 In the Matter of: : The Estate of: DECISION AND : JUDGMENT ENTRY Barry Michael Adkins : RELEASED: 8/24/16
APPEARANCES:
Craig A. Allen, Ironton, Ohio, for Appellant Robert Payne, Administrator of the Estate of Barry Michael Adkins.
Kevin J. Waldo, Ironton, Ohio, for Appellee Frederick Craft, Jr.
Harsha, A.J.
{¶1} Appellant Robert Payne, Administrator of the Estate of Barry
Michael Adkins (“the Administrator”) filed a notice of appeal from the Lawrence
County Common Pleas Court, Probate-Juvenile Division’s judgment entry
granting a motion to quash the subpoena issued to Appellee Frederick Craft, Jr.
Upon review of the notice of appeal, this Court issued a Magistrate’s Order
directing the parties to file memoranda addressing whether the challenged entry
is a final appealable order. Both parties have complied with the order. Upon
consideration, the Court finds that the appealed entry is not a final appealable
order and DISMISSES this appeal. Lawrence App. No. 16CA22 2
I.
{¶2} In this probate matter the Administrator served a subpoena on a
non-party - Mr. Craft - demanding that he appear at counsel’s office and bring
with him “any and all personal bank account record and/or any other personal
financial records for which [Mr. Craft] claim[ed] any deposits or expenditures
concerning Tri-State Realty & Rental, Inc. and/or The Estate of Margret Adkins
and/or The Estate of Barry Adkins.” Following a hearing and the filing of
memorandum of law, the trial court found no evidence that Mr. Craft had in his
possession, custody or control any records in which Mr. Craft claims to have
made any deposit or expenditure concerning The Estate of Barry Adkins (“the
Estate”). The court also noted that the Estate had not brought a civil action
against Mr. Craft and that Tri-State Realty & Rental, Inc. is a corporation in which
the Estate may claim ownership of certain shares of stock, but the Estate and the
corporation are separate legal entities.
{¶3} The trial court further noted that Mr. Craft’s personal records
are not relevant to the pending case involving the Estate and that financial
matters related to Tri-State Realty & Rental, Inc. could be pursued in a
court with jurisdiction over corporate matters. And, any financial matters
related to The Estate of Margaret Adkins must be raised in that probate
court case. Based on these findings, the Court granted the motion to
quash the subpoena.
II. Lawrence App. No. 16CA22 3
{¶4} It is well established that an order must be final before it can be
reviewed by an appellate court. See Section 3(B)(2), Article IV of the Ohio
Constitution. See, also, General Acc. Ins. Co. v. Insurance Co. of North
American, 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). If an order is not final
and appealable, then an appellate court has no jurisdiction to review the matter
and must dismiss the appeal. Lisath v. Cochran, 4th Dist. No. 92CA25, 1993 WL
120627 (Apr. 15, 1993); In re Christian, 4th Dist. No. 1507, 1992 WL 174718
(July 22, 1992).
{¶5} Moreover, appellate courts are not bound by a trial court’s
determination or statement that a judgment constitutes a final appealable order.
See Ft. Frye Teachers Assn. v. Ft. Frye Local School Dist. Bd. of Edn., 87 Ohio
App.3d 840 (4th Dist. 1993). Therefore, the trial court’s statement that the entry is
a “final appealable order” is not binding on us.
A.
{¶6} R.C. 2505.02(B) states:
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;
* * *
(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 Lawrence App. No. 16CA22 4
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.
B.
{¶7} The Administrator argues that the trial court’s entry is a final
appealable order under R.C. 2505.02(B)(1), i.e. that it affects a substantial right.
A “substantial right” is “a right that the United States Constitution, the Ohio
Constitution, a statute, the common law, or a rule of procedure entitles a person
to enforce or protect.” R.C. 2505.02(A)(1). The Administrator contends that it has
a “substantial right” because Civ.R. 26(c) which requires that a movant for a
protective order first make a reasonable effort to resolve the matter through
discussion and attach a statement reciting the effort made to its motion for a
protective order. “An order affects a substantial right if, in the absence of an
immediate appeal, one of the parties would be foreclosed from appropriate relief
in the future.” Koroshazi v. Koroshazi, 110 Ohio App.3d 634, 640 (9th Dist.
1996), citing Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181
(1993).
{¶8} The Administrator has not demonstrated that it would be foreclosed
from appropriate relief in the future to enforce Civ.R. 26(c), i.e. following a final
determination of the probate estate, such that the trial court’s entry affects a
substantial right. “In some instances, ‘the proverbial bell cannot be unrung and
an appeal after final judgment on the merits will not rectify the damage’ suffered Lawrence App. No. 16CA22 5
by the appealing party.” In the Matter of Tracy M., 6th Dist. Huron No. H-04-028,
2004-Ohio-5756, at ¶ 25 (citations omitted). For example, the disclosure of
privileged information cannot be undone absent an immediate appeal. See, e.g.,
Nash v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 92564, 2010-Ohio-10, at
¶ 11 (“once the allegedly privileged information is disclosed, appellants cannot
effectively appeal the decision”). However, the grant of a motion to quash a
subpoena is very different than the denial of such a motion in that it prevents the
release of information rather than requiring it.
{¶9} Further, the Administrator has not shown that the trial court’s entry
determines the action and prevents a judgment. “For an order to determine the
action and prevent a judgment for the party appealing, it must dispose of the
whole merits of the cause or some separate and distinct branch thereof and
leave nothing for the determination of the court.” Hamilton Cty. Bd. of Mental
Retardation & Developmental Disabilities v. Professionals Guild of Ohio, 46 Ohio
St.3d 147, 545 N.E.2d 1260 (1989). The trial court’s entry does not resolve the
merits of the case or a distinct branch of the case; rather, it resolves a discovery
dispute.
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[Cite as In re Estate of Adkins, 2016-Ohio-5602.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
: Case No. 16CA22 In the Matter of: : The Estate of: DECISION AND : JUDGMENT ENTRY Barry Michael Adkins : RELEASED: 8/24/16
APPEARANCES:
Craig A. Allen, Ironton, Ohio, for Appellant Robert Payne, Administrator of the Estate of Barry Michael Adkins.
Kevin J. Waldo, Ironton, Ohio, for Appellee Frederick Craft, Jr.
Harsha, A.J.
{¶1} Appellant Robert Payne, Administrator of the Estate of Barry
Michael Adkins (“the Administrator”) filed a notice of appeal from the Lawrence
County Common Pleas Court, Probate-Juvenile Division’s judgment entry
granting a motion to quash the subpoena issued to Appellee Frederick Craft, Jr.
Upon review of the notice of appeal, this Court issued a Magistrate’s Order
directing the parties to file memoranda addressing whether the challenged entry
is a final appealable order. Both parties have complied with the order. Upon
consideration, the Court finds that the appealed entry is not a final appealable
order and DISMISSES this appeal. Lawrence App. No. 16CA22 2
I.
{¶2} In this probate matter the Administrator served a subpoena on a
non-party - Mr. Craft - demanding that he appear at counsel’s office and bring
with him “any and all personal bank account record and/or any other personal
financial records for which [Mr. Craft] claim[ed] any deposits or expenditures
concerning Tri-State Realty & Rental, Inc. and/or The Estate of Margret Adkins
and/or The Estate of Barry Adkins.” Following a hearing and the filing of
memorandum of law, the trial court found no evidence that Mr. Craft had in his
possession, custody or control any records in which Mr. Craft claims to have
made any deposit or expenditure concerning The Estate of Barry Adkins (“the
Estate”). The court also noted that the Estate had not brought a civil action
against Mr. Craft and that Tri-State Realty & Rental, Inc. is a corporation in which
the Estate may claim ownership of certain shares of stock, but the Estate and the
corporation are separate legal entities.
{¶3} The trial court further noted that Mr. Craft’s personal records
are not relevant to the pending case involving the Estate and that financial
matters related to Tri-State Realty & Rental, Inc. could be pursued in a
court with jurisdiction over corporate matters. And, any financial matters
related to The Estate of Margaret Adkins must be raised in that probate
court case. Based on these findings, the Court granted the motion to
quash the subpoena.
II. Lawrence App. No. 16CA22 3
{¶4} It is well established that an order must be final before it can be
reviewed by an appellate court. See Section 3(B)(2), Article IV of the Ohio
Constitution. See, also, General Acc. Ins. Co. v. Insurance Co. of North
American, 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). If an order is not final
and appealable, then an appellate court has no jurisdiction to review the matter
and must dismiss the appeal. Lisath v. Cochran, 4th Dist. No. 92CA25, 1993 WL
120627 (Apr. 15, 1993); In re Christian, 4th Dist. No. 1507, 1992 WL 174718
(July 22, 1992).
{¶5} Moreover, appellate courts are not bound by a trial court’s
determination or statement that a judgment constitutes a final appealable order.
See Ft. Frye Teachers Assn. v. Ft. Frye Local School Dist. Bd. of Edn., 87 Ohio
App.3d 840 (4th Dist. 1993). Therefore, the trial court’s statement that the entry is
a “final appealable order” is not binding on us.
A.
{¶6} R.C. 2505.02(B) states:
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;
* * *
(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 Lawrence App. No. 16CA22 4
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.
B.
{¶7} The Administrator argues that the trial court’s entry is a final
appealable order under R.C. 2505.02(B)(1), i.e. that it affects a substantial right.
A “substantial right” is “a right that the United States Constitution, the Ohio
Constitution, a statute, the common law, or a rule of procedure entitles a person
to enforce or protect.” R.C. 2505.02(A)(1). The Administrator contends that it has
a “substantial right” because Civ.R. 26(c) which requires that a movant for a
protective order first make a reasonable effort to resolve the matter through
discussion and attach a statement reciting the effort made to its motion for a
protective order. “An order affects a substantial right if, in the absence of an
immediate appeal, one of the parties would be foreclosed from appropriate relief
in the future.” Koroshazi v. Koroshazi, 110 Ohio App.3d 634, 640 (9th Dist.
1996), citing Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181
(1993).
{¶8} The Administrator has not demonstrated that it would be foreclosed
from appropriate relief in the future to enforce Civ.R. 26(c), i.e. following a final
determination of the probate estate, such that the trial court’s entry affects a
substantial right. “In some instances, ‘the proverbial bell cannot be unrung and
an appeal after final judgment on the merits will not rectify the damage’ suffered Lawrence App. No. 16CA22 5
by the appealing party.” In the Matter of Tracy M., 6th Dist. Huron No. H-04-028,
2004-Ohio-5756, at ¶ 25 (citations omitted). For example, the disclosure of
privileged information cannot be undone absent an immediate appeal. See, e.g.,
Nash v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 92564, 2010-Ohio-10, at
¶ 11 (“once the allegedly privileged information is disclosed, appellants cannot
effectively appeal the decision”). However, the grant of a motion to quash a
subpoena is very different than the denial of such a motion in that it prevents the
release of information rather than requiring it.
{¶9} Further, the Administrator has not shown that the trial court’s entry
determines the action and prevents a judgment. “For an order to determine the
action and prevent a judgment for the party appealing, it must dispose of the
whole merits of the cause or some separate and distinct branch thereof and
leave nothing for the determination of the court.” Hamilton Cty. Bd. of Mental
Retardation & Developmental Disabilities v. Professionals Guild of Ohio, 46 Ohio
St.3d 147, 545 N.E.2d 1260 (1989). The trial court’s entry does not resolve the
merits of the case or a distinct branch of the case; rather, it resolves a discovery
dispute. Therefore, it does not determine the probate action or prevent a
judgment in the case.
{¶10} Accordingly, the trial court’s entry does is not a final appealable
order under R.C. 2505.02(B)(1).
C.
{¶11} Although the Administrator does not address R.C. 2505.02(B)(4) in
its memorandum, most courts considering whether an entry addressing discovery Lawrence App. No. 16CA22 6
is a final appealable order have done so under this provision. The requirements
of R.C. 2505.02(B)(4) are met if the order grants or denies a provisional remedy,
the order both determines the action with respect to the provisional remedy and
prevents a judgment in favor of the appealing party with respect to the provisional
remedy, and the appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment. Northeast Professional Home
Care, Inc. v. Advantage Home Health Services, Inc., 188 Ohio App.3d 704, 2010-
Ohio-1640, 936 N.E.2d 964 (5th Dist.), at ¶ 28.
{¶12} The Fifth, Eighth and Tenth Districts have all held that an order
denying a motion to quash a subpoena served on a non-party is a final
appealable order. See Scott Process Systems, Inc. v. Mitchell, 5th Dist. Stark No.
2012CA00021, 2012-Ohio-5971, at ¶¶ 23-24; Tisco Trading USA, Inc. v.
Cleveland Metal Exchange, Ltd., 8th Dist. Cuyahoga No. 97114, 2012-Ohio-493;
and Foor v. Huntington Natl. Bank, 27 Ohio App.3d 76, 499 N.E.2d 11297 (10th
Dist. 1986). In reaching this conclusion, the 10th District Court of Appeals noted
that a nonparty witness has no recourse from a motion overruling the motion to
quash a subpoena duces tecum other than an appeal from the order. Foor at 77-
78. However, this same reasoning would not apply when a nonparty’s motion to
quash a subpoena is granted.
{¶13} We conclude that the Administrator can be afforded a meaningful
and effective remedy at the conclusion of the probate case in this instance. If the
Administrator can establish that the motion to quash should have been overruled,
this Court can remand the matter for further discovery proceedings. See, also, In Lawrence App. No. 16CA22 7
the Matter of Tracy M., 6th Dist. Huron No. H-04-028, 2004-Ohio-5756 (order
granting high school’s motion to quash subpoena for alleged assault victim’s
school records was not final appealable order because any error could be
remedied by ordering a new trial).
{¶14} For these reasons, we find that the entry being appealed is not a
final appealable order and DISMISS this appeal. The clerk shall serve a copy of
this entry on all counsel of record and unrepresented parties at their last known
addresses by ordinary mail. SO ORDERED.
APPEAL DISMISSED. COSTS TO APPELLANT. ANY PENDING MOTIONS ARE DENIED AS MOOT. SO ORDERED.
McFarland, J. & Hoover, J.: Concur.
FOR THE COURT
________________________ William H. Harsha Administrative Judge