[Cite as In re O.B., 2012-Ohio-4780.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN THE MATTER OF O.B. : Hon. Patricia A. Delaney, P.J. ALLEGED DEPENDENT/ABUSED : Hon. W. Scott Gwin, J. CHILD : Hon. William B. Hoffman, J. : : : Case No. 2012-CA-7 : : : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court of Common Pleas, Case No. 2011DEP00014
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 11, 2012
APPEARANCES:
For Richland County Children’s Services For Father
ROBERT HARVEY GEORGE KEYSER 3400 Ashton Drive 2752 Country Meadows Uniontown, OH 44685 Shelby, OH 44875
For Guardian Ad Litem
DALE MUSILLI 71 Shady Lane Mansfield, OH 44907 [Cite as In re O.B., 2012-Ohio-4780.]
Gwin, J.,
{¶1} Appellants Richland County Children Services Board [“RCCSB”], Randy
Parker [“Parker”], Edith Gilliland [Gilliland”], Kevin Goshe [“Goshe”], Amanda Belford
[“Belford”], and Angie Poth [“Poth”] appeal the January 25, 2012 Judgment Entry of the
Richland County Court of Common Pleas, Juvenile Division, overruling their motion to
quash subpoenas. Appellee is the Richland County Juvenile Court and the guardian ad
litem, Dale Musilli [“Musilli”].
I. FACTS AND PROCEDURAL HISTORY
{¶2} In the proceedings below, a child dependency action, Musilli, brought
charges of criminal contempt against RCCSB, alleging that it intentionally destroyed
subpoenaed evidence and willfully disregarded a court order to produce the evidence.
In furtherance of the criminal contempt claim, Musilli subpoenaed five RCCSB
employees he believes are responsible for the alleged destruction of evidence: Parker,
Gilliland, Goshe, Belford, and Poth.
{¶3} On August 23, 2011, Musilli served a subpoena on RCCSB pursuant to
Ohio Civ. R. 45, for a video recording of an incident that took place in its lobby on
August 22, 2011. Sixteen days after service of the subpoena, RCCSB moved that the
subpoena be quashed. This motion was overruled, but the recording was not produced
at that hearing. On October 24, 2011, the Court ordered that the video be produced at
the next hearing, set for November 23, 2011. On November 23, 2011, the recording was
again not produced. Again, the court ordered its production for November 30, 2011.
{¶4} On September 8, 2011, RCCSB, through its counsel Edith Gilliland, filed a
motion to quash the subpoena on grounds of confidentiality and relevance. On October Richland County, Case No. 2012-CA-7 3
24, 2011, a magistrate denied RCCSB’s motion to quash the subpoena and directed it
to give the Musilli access to the requested video recording. On December 1, 2011, the
magistrate reiterated this directive and ordered RCCSB to provide the court with the
original recording or a copy by December 5, 2011. The trial court adopted the
magistrate’s opinion on December 1, 2011. Thereafter it was discovered the subject
recording no longer existed. The court was informed on December 5, 2011.
{¶5} On December 13, 2011, Musilli filed a "Motion to Show Cause," pursuant
to R.C. 2705.02, requesting that RCCSB and "relevant agents thereof” be held in
contempt for allegedly "willfully allowing" the recording "to be destroyed." Subsequently,
an amended Motion to Show Cause was filed on January 25, 2012. This amendment
deleted a demand that agents and employees of RCCSB be held in contempt.
{¶6} The contempt matter was originally set for January 13, 2012. On that day
pretrial discussions of a possible resolution ensued, the contempt hearing was reset to
January 30, 2012 and the case was set for status conference on January 24, 2012.
{¶7} Subpoenas were issued to Belford, Gilliland, Goshe, Parker, Poth and
Zahn for the January 30, 2012 hearing on the Show Cause motion. All subpoenaed
witnesses, except Zahn, were employees of RCCSB during the times relevant to the
contempt. RCCSB moved that these subpoenas be quashed. Although the Motion to
Quash did not include Bedford and Poth, the parties agreed and the Court permitted
extension of the motion to include Bedford and Poth. That hearing was conducted on
January 24, 2012 and by Judgment Entry filed January 25, 2012 that motion was
overruled. Richland County, Case No. 2012-CA-7 4
II. ASSIGNMENTS OF ERROR,
{¶8} Appellants raise two assignments of error,
{¶9} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY PLACING
THE BURDEN OF PRODUCTION AND THE BURDEN OF PERSUASION ONTO
RICHLAND COUNTY CHILDREN SERVICES TO PROVE ITSELF INNOCENT OF
CRIMINAL CONTEMPT, THEREBY DEPRIVING IT OF ITS CONSTITUTIONAL DUE
PROCESS RIGHT TO A PRESUMPTION OF INNOCENCE THAT CANNOT BE
OVERCOME UNLESS ITS GUILT IS PROVEN BEYOND A REASONABLE DOUBT.
{¶10} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING
THE INDIVIDUAL APPELLANTS' MOTION TO QUASH SUBPOENAS AND
COMPELLING THEM TO BE CROSS EXAMINED FOR THE PURPOSE OF ELICITING
TESTIMONY TO BE USED TO CHARGE THEM WITH CRIMINAL CONTEMPT,
RESULTING IN A DEPRIVATION OF THEIR CONSTITUTIONAL FIFTH AND
FOURTEENTH AMENDMENT RIGHTS.”
III. ANALYSIS
A. Jurisdiction of Court of Appeals
{¶11} Before reaching the merits of the appeal, we must address the threshold
issue of whether the judgment appealed is a final, appealable order. Appellees have
raised an issue that the appeal herein is premature. We agree.
{¶12} Even if a party does not raise the issue, this court must address, sua
sponte, whether there is a final appealable order ripe for review. State ex rel. White vs.
Cuyahoga Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72.
Thus, we shall first consider whether this court has jurisdiction over appellant's appeal. Richland County, Case No. 2012-CA-7 5
{¶13} Appellate courts have jurisdiction to review the final orders or judgments of
lower courts within their appellate districts. Section 3(B)(2), Article IV, Ohio Constitution.
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. General Acc. Ins. Co. vs.
Insurance of North America, 44 Ohio St.3d 17, 20, 540 N.E.2d 266(1989); Harris v.
Conrad, 12th Dist. No. CA-2001-12 108, 2002-Ohio-3885. 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). Denham v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999);
Ferraro v. B.F. Goodrich Co., 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d 282.
If an order is not final and appealable, an appellate court has no jurisdiction to review
the matter and it must be dismissed.
{¶14} The order denying the motion to quash subpoenas commanding an
employee or employees of RCCSB to appear and testify is not a final appealable order.
Appellants point to no specific statutory privilege to exempt them from giving testimony.
Rather, appellants raise a vague claim to a Fifth Amendment privilege to refuse to
testify ostensibly because said testimony may expose RCCSB to criminal liability.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re O.B., 2012-Ohio-4780.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN THE MATTER OF O.B. : Hon. Patricia A. Delaney, P.J. ALLEGED DEPENDENT/ABUSED : Hon. W. Scott Gwin, J. CHILD : Hon. William B. Hoffman, J. : : : Case No. 2012-CA-7 : : : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court of Common Pleas, Case No. 2011DEP00014
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 11, 2012
APPEARANCES:
For Richland County Children’s Services For Father
ROBERT HARVEY GEORGE KEYSER 3400 Ashton Drive 2752 Country Meadows Uniontown, OH 44685 Shelby, OH 44875
For Guardian Ad Litem
DALE MUSILLI 71 Shady Lane Mansfield, OH 44907 [Cite as In re O.B., 2012-Ohio-4780.]
Gwin, J.,
{¶1} Appellants Richland County Children Services Board [“RCCSB”], Randy
Parker [“Parker”], Edith Gilliland [Gilliland”], Kevin Goshe [“Goshe”], Amanda Belford
[“Belford”], and Angie Poth [“Poth”] appeal the January 25, 2012 Judgment Entry of the
Richland County Court of Common Pleas, Juvenile Division, overruling their motion to
quash subpoenas. Appellee is the Richland County Juvenile Court and the guardian ad
litem, Dale Musilli [“Musilli”].
I. FACTS AND PROCEDURAL HISTORY
{¶2} In the proceedings below, a child dependency action, Musilli, brought
charges of criminal contempt against RCCSB, alleging that it intentionally destroyed
subpoenaed evidence and willfully disregarded a court order to produce the evidence.
In furtherance of the criminal contempt claim, Musilli subpoenaed five RCCSB
employees he believes are responsible for the alleged destruction of evidence: Parker,
Gilliland, Goshe, Belford, and Poth.
{¶3} On August 23, 2011, Musilli served a subpoena on RCCSB pursuant to
Ohio Civ. R. 45, for a video recording of an incident that took place in its lobby on
August 22, 2011. Sixteen days after service of the subpoena, RCCSB moved that the
subpoena be quashed. This motion was overruled, but the recording was not produced
at that hearing. On October 24, 2011, the Court ordered that the video be produced at
the next hearing, set for November 23, 2011. On November 23, 2011, the recording was
again not produced. Again, the court ordered its production for November 30, 2011.
{¶4} On September 8, 2011, RCCSB, through its counsel Edith Gilliland, filed a
motion to quash the subpoena on grounds of confidentiality and relevance. On October Richland County, Case No. 2012-CA-7 3
24, 2011, a magistrate denied RCCSB’s motion to quash the subpoena and directed it
to give the Musilli access to the requested video recording. On December 1, 2011, the
magistrate reiterated this directive and ordered RCCSB to provide the court with the
original recording or a copy by December 5, 2011. The trial court adopted the
magistrate’s opinion on December 1, 2011. Thereafter it was discovered the subject
recording no longer existed. The court was informed on December 5, 2011.
{¶5} On December 13, 2011, Musilli filed a "Motion to Show Cause," pursuant
to R.C. 2705.02, requesting that RCCSB and "relevant agents thereof” be held in
contempt for allegedly "willfully allowing" the recording "to be destroyed." Subsequently,
an amended Motion to Show Cause was filed on January 25, 2012. This amendment
deleted a demand that agents and employees of RCCSB be held in contempt.
{¶6} The contempt matter was originally set for January 13, 2012. On that day
pretrial discussions of a possible resolution ensued, the contempt hearing was reset to
January 30, 2012 and the case was set for status conference on January 24, 2012.
{¶7} Subpoenas were issued to Belford, Gilliland, Goshe, Parker, Poth and
Zahn for the January 30, 2012 hearing on the Show Cause motion. All subpoenaed
witnesses, except Zahn, were employees of RCCSB during the times relevant to the
contempt. RCCSB moved that these subpoenas be quashed. Although the Motion to
Quash did not include Bedford and Poth, the parties agreed and the Court permitted
extension of the motion to include Bedford and Poth. That hearing was conducted on
January 24, 2012 and by Judgment Entry filed January 25, 2012 that motion was
overruled. Richland County, Case No. 2012-CA-7 4
II. ASSIGNMENTS OF ERROR,
{¶8} Appellants raise two assignments of error,
{¶9} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY PLACING
THE BURDEN OF PRODUCTION AND THE BURDEN OF PERSUASION ONTO
RICHLAND COUNTY CHILDREN SERVICES TO PROVE ITSELF INNOCENT OF
CRIMINAL CONTEMPT, THEREBY DEPRIVING IT OF ITS CONSTITUTIONAL DUE
PROCESS RIGHT TO A PRESUMPTION OF INNOCENCE THAT CANNOT BE
OVERCOME UNLESS ITS GUILT IS PROVEN BEYOND A REASONABLE DOUBT.
{¶10} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING
THE INDIVIDUAL APPELLANTS' MOTION TO QUASH SUBPOENAS AND
COMPELLING THEM TO BE CROSS EXAMINED FOR THE PURPOSE OF ELICITING
TESTIMONY TO BE USED TO CHARGE THEM WITH CRIMINAL CONTEMPT,
RESULTING IN A DEPRIVATION OF THEIR CONSTITUTIONAL FIFTH AND
FOURTEENTH AMENDMENT RIGHTS.”
III. ANALYSIS
A. Jurisdiction of Court of Appeals
{¶11} Before reaching the merits of the appeal, we must address the threshold
issue of whether the judgment appealed is a final, appealable order. Appellees have
raised an issue that the appeal herein is premature. We agree.
{¶12} Even if a party does not raise the issue, this court must address, sua
sponte, whether there is a final appealable order ripe for review. State ex rel. White vs.
Cuyahoga Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72.
Thus, we shall first consider whether this court has jurisdiction over appellant's appeal. Richland County, Case No. 2012-CA-7 5
{¶13} Appellate courts have jurisdiction to review the final orders or judgments of
lower courts within their appellate districts. Section 3(B)(2), Article IV, Ohio Constitution.
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. General Acc. Ins. Co. vs.
Insurance of North America, 44 Ohio St.3d 17, 20, 540 N.E.2d 266(1989); Harris v.
Conrad, 12th Dist. No. CA-2001-12 108, 2002-Ohio-3885. 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). Denham v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999);
Ferraro v. B.F. Goodrich Co., 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d 282.
If an order is not final and appealable, an appellate court has no jurisdiction to review
the matter and it must be dismissed.
{¶14} The order denying the motion to quash subpoenas commanding an
employee or employees of RCCSB to appear and testify is not a final appealable order.
Appellants point to no specific statutory privilege to exempt them from giving testimony.
Rather, appellants raise a vague claim to a Fifth Amendment privilege to refuse to
testify ostensibly because said testimony may expose RCCSB to criminal liability.
Although such testimony may properly fall within the right against self-incrimination, it
must first be demonstrated that the testimony sought falls within the privilege. The trial
court should afford the parties the opportunity to litigate the issue of self-incrimination.
{¶15} The Fifth Amendment privilege against self-incrimination provides that no
person shall be compelled to be a witness against himself in a criminal case and
permits a person to refuse to answer official questions in another proceeding, civil or
criminal, formal or informal, where the answers might incriminate him in future criminal Richland County, Case No. 2012-CA-7 6
proceedings. Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d
409(1984), citing Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d
274(1973).
{¶16} The Ohio Supreme Court has held that when a witness asserts a privilege
against self-incrimination, a court may not rely upon the witness's claim alone, but has a
duty to determine whether the witness's refusal to answer is justified. State v. Jackson,
92 Ohio St.3d 436, 447, 751 N.E.2d 946(2001). A valid assertion exists where a witness
has reasonable cause to apprehend a real danger of incrimination. United States v.
Apfelbaum, 445 U.S. 115, 127, 100 S.Ct. 948, 63 L.Ed.2d 250(1980); In re Morganroth
718 F.2d 161, 167(C.A.6, 1983). “To sustain the privilege, it need only be evident from
the implications of the question, in the setting in which it is asked, that a responsive
answer * * * might be dangerous because injurious disclosure could result. * * *”
Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 95 L.Ed. 1118(1951).
The privilege extends to answers which would furnish a link in the chain of evidence,
exposing the witness to criminal liability. Id. at 486; Blau v. United States, 340 U.S. 159,
71 S.Ct. 223, 95 L.Ed. 170(1950); and State v. Landrum, 53 Ohio St.3d 107, 120-121,
559 N.E.2d 710(1990).
{¶17} In this case, no witness has been called to testify. Nor has the trial court
determined if the refusal to testify is justified. No witness has been compelled to testify
to anything.
{¶18} Because there is no final appealable order, this court does not have
jurisdiction to entertain appellant's appeal. Richland County, Case No. 2012-CA-7 7
{¶19} For the foregoing reasons, the appeal of the judgment of the Court of
Common Pleas, Juvenile Division, Richland County, Ohio, is hereby dismissed.
By Gwin, J.,
Delaney, P.J., and
Hoffman, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. PATRICIA A. DELANEY
_________________________________ HON. WILLIAM B. HOFFMAN WSG:clw 0924 [Cite as In re O.B., 2012-Ohio-4780.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: : IN THE MATTER OF O.B. : ALLEGED DEPENDENT/ABUSED CHILD : : : : : JUDGMENT ENTRY : : : : : : : CASE NO. 2012-CA-7
For the reasons stated in our accompanying Memorandum-Opinion, the appeal of
the judgment of the Court of Common Pleas, Juvenile Division, Richland County, Ohio,
is hereby dismissed. Costs to appellants.
_________________________________ HON. WILLIAM B. HOFFMAN