Krueger v. Krueger

2022 Ohio 3782

• Court: Ohio Court of Appeals
• Decided: October 24, 2022
• Docket: 2022-G-0022 & 2022-G-0028
• Status: Published

Opinion

[Cite as Krueger v. Krueger, 2022-Ohio-3782.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY

COLEEN J. KRUEGER, CASE NOS. 2022-G-0022 2022-G-0028 Petitioner-Appellee, Civil Appeals from the - vs - Court of Common Pleas

BRIAN J. KRUEGER, Trial Court No. 2021 DK 000134 Petitioner-Appellant.

MEMORANDUM OPINION

Decided: October 24, 2022 Judgment: Appeals dismissed

Scott S. Rosenthal, Rosenthal, Thurman, Lane, LLC, North Point Tower, 1001 Lakeside Avenue, Suite 1720, Cleveland, OH 44114 (For Petitioner-Appellee).

Joseph G. Stafford, Nicole A. Cruz, and Kelley R. Tauring, Stafford Law Co., LPA, 55 Erieview Plaza, 5th Floor, Cleveland, OH 44114 (For Petitioner-Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, Brian J. Krueger (also referred to herein as “Mr. K.” and

“Petitioner -02”), has appealed from two judgments of the Geauga County Court of

Common Pleas, one entered on April 15, 2022 (Case No. 2022-G-0022) and one entered

on June 29, 2022 (Case No. 2022-G-0028). These matters have been consolidated in

this court. At issue is whether the underlying judgments are final and appealable such

that this court must reach the merits of Mr. K’s claimed errors. For the reasons discussed in this opinion, we conclude the judgments at issue are not final and therefore not

appealable at this time. The appeals are accordingly dismissed.

{¶2} Mr. K. and appellee, Coleen J. Krueger (also referred to herein as “Ms. K.”

and “Petitioner -01”), were married and later entered into separation agreement. A

judgment of dissolution was filed by the trial court on April 21, 2021. In November 2021,

Ms. K. filed a Civ.R. 60(B) motion for relief from the April judgment. Ms. K. sought relief

based upon allegations that Mr. K. significantly undervalued business assets that were

sold subsequent to the trial court’s decree. According to Ms. K., the agreed property

division represented the assets at approximately one-quarter of the amount for which they

were sold. Ms. K. claimed she had no knowledge that the assets were undervalued at

the time she entered the dissolution. Ms. K. therefore asserted that Mr. K’s alleged

attempt to defraud her was sufficient to support relief under Civ.R. 60(B).

{¶3} In April 2022, during the pendency of the Civ.R. 60(B) proceedings, Mr. K.

filed a notice with the trial court asserting the magistrate in the underlying dissolution

proceedings had, prior to the entry of the final decree, engaged in communications with

the parties and their counsel off record. Mr. K. claimed that these communications would

render the magistrate a necessary witness in the matter, which required the magistrate’s

recusal. In effect, Mr. K. alleged the communications pertained to the parties’ agreement

over property division, spousal support, child support, and shared parenting. As such,

Mr. K. alleged the magistrate possessed knowledge of facts that related to Ms. K.’s Civ.R.

60(B) motion.

{¶4} The trial court subsequently denied Mr. K’s motion to recuse. Mr. K. filed a

notice of appeal of the April 15, 2022 judgment. This court issued an order for Mr. K. to

Case Nos. 2022-G-0022 and 2022-G-0028 show cause as to why the matter should not be dismissed for lack of a final, appealable

order.

{¶5} Mr. K. filed his brief in support of jurisdiction, arguing this court should find

the judgment denying the motion to recuse final and appealable because (1) divorce

proceedings are special proceedings, see Thomasson v. Thomasson, 153 Ohio St.3d

398, 2018-Ohio-2417, ¶12; and (2) the judgment affected a substantial right under R.C.

2505.02(B)(2). Regarding the latter point, Mr. K. asserts his constitutional right to due

process was affected when the court denied his motion to recuse. Mr. K. alleges that Ms.

K.’s Civ.R. 60(B) motion is premised upon statements that he failed to disclose

information pertaining to the businesses and their value prior to the entry of the judgment

of dissolution. He asserts that the magistrate’s alleged role in the parties’ negotiations in

reaching the property division is pertinent to whether Ms. K. knew about the information

upon which she premised her motion for relief. He therefore claims that his substantial

right to due process would be violated if the instant appeal did not proceed, as it would

prevent him from properly presenting a defense in a meaningful manner at a meaningful

time.

{¶6} In her brief in opposition to jurisdiction, Ms. K. asserts that the judgment

denying the motion to recuse the magistrate does not fit within any of the provisions set

forth under R.C. 2505.02(B). In particular, she claims that the pre-decree communication

between the magistrate and the parties is tantamount to a telephonic or “in chambers”

pretrial conference between a court of record, parties, and their counsel. Her allegations

of fraud, however, are premised upon an alleged post-decree discovery of information

that the value of the assets to which she agreed were undervalued by some 75 percent.

Case Nos. 2022-G-0022 and 2022-G-0028 Had she possessed any knowledge of this possibility at the time she entered into the

separation agreement, Ms. K. would have rejected the valuation. According to Ms. K.,

Mr. K’s argument is a “red herring” because he overexaggerates the import and role of

the magistrate’s communications and/or his involvement in the ultimate substantive

settlement negotiations. By denying the motion to recuse, she claims, Mr. K’s due

process rights are unaffected and thus any alleged error can be considered and

addressed upon entry of a later, final order.

{¶7} We agree with Ms. K’s position.

{¶8} Mr. K’s argument that his due process rights will be affected by the lack of

the magistrate’s testimony is highly speculative and somewhat disconnected from the

allegations upon which appellee’s Civ.R. 60(B) motion is premised. Ms. K’s motion

appears to concern itself with Mr. K’s alleged non-disclosure of potentially heightened

values of marital property that were arguably known by Mr. K. but not revealed to Ms. K.

Ms. K’s fraud allegations relate to what she may or may not have known and relied upon

at the time of the property settlement agreement. And, similarly, given the relative timeline

regarding the purported sale(s), what was known by Mr. K. What the magistrate’s

concerns were and the nature of the communications between the magistrate and the

parties would not necessarily affect Ms. K.’s fraud allegations. Further, as a practical

matter, it would be a strange and unintelligible situation for Ms. K. to know of the alleged

undervaluing but not negotiate the division of property in light of that knowledge.

{¶9} Given the foregoing, it is unclear how the magistrate’s pre-decree

communications with the parties would impact Mr. K.’s defense to Ms. K.’s allegations.

Case Nos. 2022-G-0022 and 2022-G-0028 We therefore decline to conclude that the trial court’s judgment denying Mr. K.’s motion

to recuse the magistrate affected his substantial right to due process.

{¶10} Moreover, various appellate courts, including this court, have concluded a

motion to recuse a magistrate is not immediately appealable where other issues are

pending in the trial court. In Dunham v. Ervin, 10th Dist. Franklin No. 17AP-79, 2017-

Ohio-7616, the Tenth Appellate District observed that a trial court’s denial of a motion to

remove a guardian ad litem and a magistrate is not a final appealable order under R.C.

2505.02 where there are still other issues pending in the trial court. Id. at ¶21. In drawing

its conclusion, the Dunham court cited this court’s holding in Longo v. Longo, 11th Dist.

Geauga No. 2010-G-2998, 2011-Ohio-1297. In Longo, this court observed:

{¶11} “[T]he denial of appellant’s motion to remove the guardian ad litem does not

fall under any of the categories for being a final order pursuant to R.C. 2505.02(B). * * *

{¶12} “[A]ppellant is attempting to appeal the denial of his motion to remove the

guardian ad litem even though there are still other issues pending before the trial court.

Therefore, the orders appealed from are not final and appealable.” Id. at ¶18-19.

{¶13} Similarly, in Aloi v. Enervest, 11th Dist. Portage No. 2011-P-0023, 2011-

Ohio-5112, this court concluded that a “judgment entry overruling the motion to recuse a

common pleas judge and disqualify a magistrate is not a final appealable order.” Id. at

¶3; see Abbas v. Abbas, 6th Dist. Wood No. WD-00-015, 2000 WL 281713, *1 (Mar. 10,

2000) (denial of a motion to disqualify a magistrate for bias is not a final appealable order);

see also Tassone v. Tassone, 10th Dist. Franklin No. 18AP-810, 2019-Ohio-1018, ¶20-

22 (motion to disqualify a magistrate is not a final, appealable order where matters remain

pending); Robinson v. Prudential Ins., 5th Dist. Tuscarawas No. 1998CA00058, 1999 WL

Case Nos. 2022-G-0022 and 2022-G-0028 34784, *2 (Jan. 19, 1999) (“[T]he denial of a motion to disqualify [a magistrate] is not a

final, appealable order. * * * At the time appellant filed his notice of appeal, the rulings

from which he was appealing were interlocutory and not final, appealable orders.”)

{¶14} In addition to our conclusion that the denial of Mr. K.’s motion to recuse

does not affect a substantial right, the Civ.R. 60(B) motion remains pending. Accordingly,

we conclude the trial court’s judgment denying the motion to recuse is not a final,

appealable order.

{¶15} Moreover, Mr. K. filed a separate appeal of the trial court’s June 29, 2022

judgment denying, inter alia, his request to conduct additional discovery. In his notice of

appeal, Mr. K. set forth the following probable issue for review: “Whether the trial court

erred in precluding [Mr. K.] an opportunity to conduct discovery and precluding [Mr. K.]

from filing a motion for summary judgment after the completion of discovery.”

{¶16} In its June 29, 2022 judgment entry, the trial court observed and concluded

the following:

{¶17} “Petitioner -02 Brian J. Krueger also argues that the Magistrate abused his

discretion in not granting his request for an extension of time to file his Motion for

Summary Judgment.

{¶18} “In support of this argument, Petitioner -02 submits that this Court needs to

defer consideration of summary judgment herein on Petitioner -01’s pending R.60(B)

Motion in view of the fact that he has not completed his discovery in this case.

{¶19} “A review of the docket, however, indicates that (a) Petitioner -01’s

underlying R.60(B) Motion has been pending since November 22, 2021; (b) By his own

admission as stated in his Motion to Set Aside, Petitioner -02 declined to commence

Case Nos. 2022-G-0022 and 2022-G-0028 formal discovery until approximately 120 days later when he served his Interrogatories

and Request for Production upon Petitioner -01 on March 11, 2022, and noticed Petitioner

-01 for a deposition on March 25, 2022; (c) Petitioner -02 was advised of the discovery

cut-off date of March 8, 2022 in the Magistrate’s Order issued December 13, 202[1]; and

([d]) the discovery cut-off date was subsequently extended to April 29, 2022 to

accommodate both parties pursuant to the Magistrate’s Order issued March 16, 2022.

{¶20} “Given these facts, Petitioner -02’s failure to timely complete discovery does

not warrant or require a further extension of time as requested by Petitioner -02 to file a

Motion for Summary Judgment.”

{¶21} Given Mr. K.’s statement of the issue in his notice of appeal, it would appear

the foregoing adjudicatory action forms the basis of the appeal in Case No. 2022-G-0028.

{¶22} With this in mind, discovery rulings are generally interlocutory which are not

final and appealable because any harm in an erroneous ruling is correctable on appeal

at the conclusion of the entire case. See Walters v. Enrichment Ctr. of Wishing Well, Inc.,

78 Ohio St.3d 118, 120-121 (1997). Still, R.C. 2505.02(B)(4) defines a final order as:

{¶23} “An order that grants or denies a provisional remedy and to which both of

the following apply:

{¶24} “(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.

{¶25} “(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.”

Case Nos. 2022-G-0022 and 2022-G-0028 {¶26} R.C. 2505.02(A)(3) defines a “provisional remedy” as a remedy sought in

a “proceeding ancillary to an action, including, but not limited to, a proceeding for a

preliminary injunction, attachment, [or] discovery of a privileged matter * * *.” (Emphasis

added). Therefore, if a trial court orders a party to disclose privileged material, the entry

is a final appealable order pursuant to R.C. 2505.02(A)(3) and (B)(4). See Briggs v. Mt.

Carmel Health Sys., 10th Dist. Franklin No. 07AP-251, 2007-Ohio-5558, ¶11.

{¶27} The trial court did not order discovery of a privileged matter. To the contrary,

it simply affirmed the magistrate’s order that Mr. K. was not entitled to additional time for

discovery in light of the history of the case. We therefore conclude that the judgment at

issue is interlocutory and does not meet the requirements of a final order under R.C.

2505.02(B).

{¶28} For the reasons discussed in this memorandum opinion, the consolidated

appeals under Case No. 2022-G-0022 and Case No. 2022-G-0028 are dismissed for want

of final, appealable orders.

MATT LYNCH, J.,

JOHN J. EKLUND, J.,

concur.

Case Nos. 2022-G-0022 and 2022-G-0028