Northeast Professional Home Care, Inc. v. Advantage Home Health Services, Inc.

936 N.E.2d 964, 188 Ohio App. 3d 704
CourtOhio Court of Appeals
DecidedApril 12, 2010
DocketNo. 2009-CA-00180
StatusPublished
Cited by16 cases

This text of 936 N.E.2d 964 (Northeast Professional Home Care, Inc. v. Advantage Home Health Services, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northeast Professional Home Care, Inc. v. Advantage Home Health Services, Inc., 936 N.E.2d 964, 188 Ohio App. 3d 704 (Ohio Ct. App. 2010).

Opinion

Gwin, Presiding Judge.

{¶ 1} This appeal arises from a Stark County Court of Common Pleas case involving a noncompetition and confidentiality agreement. On August 13, 2008, Northeast Professional Home Care, Inc. and Northeast Professional Home, Inc. (collectively, the “appellants”) instituted the present lawsuit against a former employee, appellee Brian Nam, as well as a start-up competitor he was involved with, appellee Advantage Home Health Services, Inc. and two of that competitor’s initial directors. Those directors were Brian Nam’s father, appellee Kun Woo Nam, M.D. and Brian Nam’s live-in girlfriend, appellee Maria Swisher. The lawsuit alleges various claims, including claims for breach of contract, tortious interference with contact, breach of fiduciary duty, and breach of duty of loyalty.1

2} Almost from the beginning of the case there have been disputes regarding fact discovery. Many of these disputes have been ruled upon by the trial court.

{¶ 3} A protective order was issued by the trial court on November 19, 2008. The protective order set forth a two-tiered designation system in which documents could be classified as either “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS EYES ONLY.” A “CONFIDENTIAL” designation generally provided that the parties could use the information only for purposes of the litigation, and must file the documents under seal with the trial court. A “CONFIDENTIAL-ATTORNEYS EYES ONLY” designation added the requirement that designated documents could be shared only with counsel and experts, not with parties.

[707]*707{¶ 4} Paragraph 14 of the protective order concerned the production of documents that appellants allege were misappropriated by appellees. Paragraph 14 established that to the extent that appellants disclose documents that they allege were misappropriated by appellees, those documents must be designated as “CONFIDENTIAL,” which would enable appellees themselves to see the documents. Paragraph 14 required the reclassification of those documents appellants claim appellees took in order to start their own competing company.

{¶ 5} After the filing of the protective order, the parties continued the process of exchanging written discovery. On March 2, 2009, appellees filed a motion seeking an order from the trial court that certain specific documents be reclassified from “CONFIDENTIAL — ATTORNEYS EYES ONLY” to “CONFIDENTIAL.” Copies of the documents were attached to the motion as “Exhibit A.” Appellants filed a written response.

{¶ 6} On May 29, 2009, appellees filed a “Motion for Order,” asking that a nonparty, Anthony Vallone, be prohibited from attending depositions in the matter. Various pages of Vallone’s deposition testimony supported the motion. The appellant responded in writing under seal on June 5, 2009.

{¶ 7} On June 9, 2009, the trial court ruled that Vallone would not be “permitted to attend the depositions of the Defendants and any of the lay or expert witnesses during the pendency of this action.” The trial court’s determination was based upon excerpts from Vallone’s deposition transcript that were filed with the trial court, statements of counsel made on May 20, 2009, and the motions filed by the parties.

{¶ 8} The second entry at issue was filed on June 15, 2009. In it, the trial court re-designated as “NON-CONFIDENTIAL” documents that had previously been classified by appellants as “CONFIDENTIAL — ATTORNEY’S EYES ONLY.”

{¶ 9} On September 25, 2009, the trial court filed its entry correcting its June 15, 2009 order. The trial court corrected the entry by referring to the proper motion.2 However, the trial court did not change its previous designation of the documents as “NON-CONFIDENTIAL.”

{¶ 10} It is from the trial court’s June 9, 2009 judgment entry and the trial court’s June 15, 2009 judgment entry, as corrected by its September 25, 2009 judgment entry, that appellants have appealed, raising two assignments of error:

[708]*708{¶ 11} “I. The trial court committed reversible error by prohibiting appellant Northeast Home Care’s designated corporate representative from attending depositions.
{¶ 12} “II. The trial court committed reversible error by redesignating appellants’ documents, which had been previously designated by appellants as ‘confidential-attorneys eyes only,’ as ‘nonconfidential.’ ”

I & II

{¶ 13} Because appellants’ first and second assignments of error each require us to determine whether this court has jurisdiction to review the merits of the specific assignment of error, we shall address the assignments collectively.

{¶ 14} Before reaching the merits of the appeal, we must address the threshold issue of whether the judgment appealed is a final, appealable order. Section 3(B)(2), Article IV of the Ohio Constitution limits an appellate court’s jurisdiction to the review of final judgments. For a judgment to be final and appealable, it must satisfy R.C. 2505.02 and, if applicable, Civ.R. 54(B). Hitchings v. Weese (1997), 77 Ohio St.3d 390, 674 N.E.2d 688 ( Resnick, J., concurring). This court has no choice but to sua sponte dismiss an appeal that is not taken from a final, appealable order. Whitaker-Merrell v. Geupel Constr. Co. (1972), 29 Ohio St.2d 184, 58 O.O.2d 399, 280 N.E.2d 922.

{¶ 15} R.C. 2505.02, which defines a final, appealable order, provides:

{¶ 16} “(A) As used in this section:
{¶ 17} “(1) ‘Substantial right’ means 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.
{¶ 18} “(2) ‘Special proceeding’ means an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity.
{¶ 19} “(3) ‘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, suppression of evidence, a prima-facie showing pursuant to section 2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to section 2307.92 of the Revised Code, or a finding made pursuant to division (A)(3) of section 2307.93 of the Revised Code.
{¶ 20} “(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:
{¶ 21} “(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
[709]*709{¶ 22} “(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
{¶ 23} “(3) An order that vacates or sets aside a judgment or grants a new trial;
{¶ 24} “(4) An order that grants or denies a provisional remedy and to which both of the following apply:

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Cite This Page — Counsel Stack

Bluebook (online)
936 N.E.2d 964, 188 Ohio App. 3d 704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northeast-professional-home-care-inc-v-advantage-home-health-services-ohioctapp-2010.