Suhay v. Fade

2022 Ohio 1368

• Court: Ohio Court of Appeals
• Decided: April 25, 2022
• Docket: 2022-A-0008
• Status: Published

Opinion

[Cite as Suhay v. Fade, 2022-Ohio-1368.]

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

RICHARD SUHAY, CASE NO. 2022-A-0008

Plaintiff-Appellant, Civil Appeal from the -v- Court of Common Pleas

VILMA FADE, et al., Trial Court No. 2017 CV 00043 Defendants-Appellees.

MEMORANDUM OPINION

Decided: April 25, 2022 Judgment: Appeal dismissed

Robert S. Wynn, 7 Lawyers Row, P.O. Box 121, Jefferson, OH 44047 (For Plaintiff- Appellant).

Patrick D. Quinn and Ronald A. Annotico, Quinn Legal Associates, Inc., 2802 SOM Center Road, Suite 102, Willoughby Hills, OH 44094 (For Defendants-Appellees).

JOHN J. EKLUND, J.

{¶1} Appellant, Richard Suhay, through counsel, appeals a February 11, 2022

entry from the Ashtabula County Court of Common Pleas.

{¶2} On March 17, 2022, appellees, Vilma Fade and William Fade, filed a motion

to dismiss the appeal for lack of a final appealable order. In their motion, appellees allege

that the entry on appeal is a scheduling order, which is not a final appealable order.

{¶3} Appellant filed a brief in response to the motion to dismiss. {¶4} We must determine if there is a final order, as this court may entertain only

those appeals from final judgments. Noble v. Colwell, 44 Ohio St.3d 92, 96 (1989).

According to Section 3(B)(2), Article IV of the Ohio Constitution, a judgment of a trial court

can be immediately reviewed by an appellate court only if it constitutes a “final order” in

the action. Germ v. Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶ 3. 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. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am.,

44 Ohio St.3d 17, 20 (1989). 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). See Children’s Hosp.

Med. Ctr. v. Tomaiko, 11th Dist. Portage No. 2011-P-0103, 2011-Ohio-6838, ¶ 3.

{¶5} R.C. 2505.02(B) defines a final order as one of the following:

{¶6} “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:

{¶7} “(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

{¶8} “(2) An order that affects a substantial right made in a special proceeding or

upon a summary application in an action after judgment;

{¶9} “(3) An order that vacates or sets aside a judgment or grants a new trial;

{¶10} “(4) An order that grants or denies a provisional remedy and to which both

of the following apply:

{¶11} “(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.

Case No. 2022-A-0008 {¶12} “(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.

{¶13} “(5) An order that determines that an action may or may not be maintained

as a class action;

{¶14} “(6) An order determining the constitutionality of any changes to the Revised

Code * * *;

{¶15} “(7) An order in an appropriation proceeding * * *.”

{¶16} For R.C. 2505.02(B)(2) to apply to this case, the orders under review must

be made in a special proceeding, which is defined as “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.” R.C. 2505.02(A)(2). This case does not involve a special proceeding in

the context of final appealable orders. Thus, R.C. 2505.02(B)(2) does not apply.

{¶17} It is clear there is no entry vacating a judgment, granting a provisional

remedy, dealing with a class action, determining the constitutionality of Am. Sub. S.B.

281 or Sub. S.B. 80, or dealing with an appropriation proceeding. Therefore, R.C.

2505.02(B)(3)-(7) do not apply.

{¶18} For R.C. 2505.02(B)(1) to apply to the appealed entry, it must affect a

substantial right, determine the action, and prevent further judgment. Here, the entry

does not fit into this category. Appellant is appealing an order scheduling a hearing. The

hearing is about the privilege issue and to determine if appellant’s attorney’s testimony

relates to a significant issue in the case that may require him to be a trial witness. The

trial court also indicated that it “may receive evidence in camera if deemed appropriate.”

Case No. 2022-A-0008 The trial court has made no rulings on the issue of attorney-client privilege, in camera

review, or whether appellant’s attorney will be required to testify.

{¶19} Initially, we note that, in general, discovery issues are interlocutory in nature

and a trial court’s entry regarding those issues does not constitute a final appealable

order. Lancaster v. Mettler, 11th Dist. Trumbull No. 2019-T-0075, 2019-Ohio-5418, at ¶

18. However, provisional remedies ordering discovery of alleged privileged material are

final and appealable. See Cobb v. Shipman, 11th Dist. Trumbull No. 2011-T-0049, 2012-

Ohio-1676 (an order compelling the production of privileged documents to an opposing

party constitutes a final appealable order).

{¶20} Here, the trial court’s February 11, 2022 entry simply discussed scheduling

a hearing which was set by a separate notice. There was no order or entry dismissing or

terminating the case or an entry of judgment. An interlocutory order is simply not a final

appealable order. This appeal has been prematurely filed. Appellant will have a

meaningful and effective remedy by means of an appeal once a final judgment is reached.

See Children’s Hosp. Med., supra at ¶ 5.

{¶21} Based upon the foregoing, appellee’s motion to dismiss is granted, and this

appeal is hereby dismissed for lack of a final appealable order.

{¶22} Appeal dismissed.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

Case No. 2022-A-0008