Anglin v. DonohooAnglin v. Donohoo
Reminger Co., LPA, Vincent P. Antaki, 525 Vine Street, Suite 1700, Cincinnati, Ohio 45202, for defendants-appellants
HENDRICKSON, J.
{¶ 1} Defendant-appellants, Douglas L. Donohoo and Douglas L. Donohoo, CPA LTD (collectively “appellants“), appeal from the decision of the Clermont County Court of Common Pleas denying their motion to dismiss the complaint of plaintiff-appellee, Calinda Anglin. For the reasons set forth below, we dismiss the appeal for lack of a final appealable order.
{¶ 2} On August 9, 2017, Anglin, individually, as Executor of the Estate of Barbara J.
{¶ 3} Anglin‘s complaint further alleged that she signed the letters of engagement individually and not in her capacity as executrix or as trustee. Anglin claimed that Donohoo did not disclose to her that he had not previously prepared an IRS Form 706 for an estate. Anglin also alleged that although Donohoo never performed any material work with regard to the form for Smuland‘s estate, he prepared six invoices for services and expenses totaling $393,724.85, and Anglin paid those invoices. On August 19, 2016, Anglin notified Donohoo she did not want him to perform any further services regarding preparation of IRS Form 706 and, through her legal counsel, requested Donohoo return all documents concerning the estate and trust to her counsel. Donohoo refused to do so. Anglin claimed she suffered damages in excess of $400,000 as a result of appellants’ breach of contract and fraudulent representations.
{¶ 4} On August 22, 2017, Anglin issued discovery requests to appellants. On September 12, 2017, appellants filed a motion to dismiss the complaint or, alternatively to transfer venue to Clermont County. Appellants then filed a motion to stay Anglin‘s discovery pending a ruling on the motion to dismiss or change venue. The Hamilton County Court of Common Pleas granted appellants’ motion to stay discovery. Thereafter, the Hamilton County Court of Common Pleas granted appellants’ motion to change venue and the case was transferred to the Clermont County Court of Common Pleas on January 18, 2018.
{¶ 5} Eighteen days later, on February 5, 2018, appellants filed a motion to dismiss Anglin‘s complaint pursuant to
{¶ 6} On April 6, 2018, the trial court denied appellants’ motion to dismiss, finding that the remedy for noncompliance with
At this very preliminary point in the proceedings, the Court is not willing to consider the Engagement Letters the [appellants‘] attached to their memorandum as it pertains to this issue. Further, it is not willing to convert the Motion from a 12(B)(6) motion to dismiss to a summary judgment motion under
Civ.R. 56 . Anglin initiated discovery while the case was pending in Hamilton County. It would be reasonable to conclude that if theCourt converted the Motion to a summary judgment motion, she would request additional time to pursue discovery as permitted by Civ.R. 56(F) . The Court finds that the more reasonable course is to permit the parties to fully explore the facts at issue by way of discovery. Any party could then file a dispositive motion thereafter.
Therefore, as the court was not considering the letters of engagement, the court found that a four-year statute of limitations applied to Anglin‘s claims and her claims were not time-barred.
{¶ 7} As for appellants’ claim that the complaint should be dismissed because the letters of engagement require that any dispute between the parties be submitted to arbitration, the trial court found that appellants’ arguments were better suited to a
{¶ 8} Appellants appealed the denial of their motion to dismiss, raising two assignments of error.
{¶ 9} Assignment of Error No. 1:
{¶ 10} THE TRIAL COURT ERRED IN DENYING THE CIV.R. 12(B)(6) MOTION TO DISMISS OF APPELLANT[S] DOUGLAS L. DONOHOO AND DOUGLASS L. DONOHOO, CPA LTD.
{¶ 11} In their first assignment of error, appellants argue the trial court erred in denying their
{¶ 12} Before addressing the merits of appellants’ assignment of error, we must first determine whether the judgment entry denying appellants’
{¶ 13}
{¶ 14}
{¶ 15} The same is true where a party seeks to appeal the denial of a motion to dismiss based upon a statute-of-limitations argument. See Casey v. Reidy, 180 Ohio App.3d 615, 2009-Ohio-415, ¶ 48-52 (7th Dist.); Hughes v. Zordich, 7th Dist. Mahoning No. 99 CA 167, 2001 Ohio App. LEXIS 1913, *3-5 (Apr. 25, 2001). Such a ruling does not determine the action or prevent a judgment as appellants still have the opportunity to prevail at trial on the merits of the case. See id. at *4-5. Appellants also have the opportunity to advance their arguments by filing a motion for summary judgment. See Reidy at ¶ 51.
{¶ 16} We recognize that the trial court in this case added
{¶ 17} Accordingly, for the reasons set forth above, we conclude that we lack jurisdiction to consider the trial court‘s denial of appellants’
{¶ 18} Assignment of Error No. 2:
{¶ 19} THE TRIAL COURT ERRED IN HOLDING THAT APPELLANTS WAIVED THE RIGHT TO ARBITRATION BY FILING A MOTION TO CHANGE VENUE OR DISMISS.
{¶ 20} In their second assignment of error, appellants argue the trial court erred when it denied their
{¶ 21} Once again, we begin our analysis with a determination of whether the denial of appellants’ motion to dismiss on the basis of an arbitration provision constitutes a final appealable order.
{¶ 22} As we have previously recognized, “while an order granting or denying a motion to stay a lawsuit pending arbitration, generally, is final and appealable,
{¶ 23} With certain exceptions, “the court of common pleas has original jurisdiction in all civil cases in which the sum or matter in dispute exceeds the exclusive original jurisdiction of county courts and appellate jurisdiction from the decisions of boards of county commissioners.”
{¶ 24}
[i]f any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration.
(Emphasis added.) Therefore, “according to the explicit language in the Revised Code, if a court determines that the issues within an action are subject to arbitration, then, on application of one of the parties, it must stay proceedings pending arbitration” unless the court finds the applicant is in default in proceeding with arbitration. (Emphasis added.) Taylor Winfield Corp. at ¶ 10.
{¶ 25} In the present case, appellants filed a motion to dismiss the complaint on the basis of the arbitration clause. Appellants did not file a motion seeking to stay proceedings pending arbitration under
[e]xcept as provided in division (D) of this section [dealing with commercial construction contracts], an order under division (B) of this section that grants or denies a stay of a trial of any action pending arbitration, including, but not limited to, an order that is based upon a determination of the court that a party has waived arbitration under the arbitration agreement, is a final order and may be reviewed, affirmed, modified, or reversed on appeal pursuant to the Rules of Appellate Procedure and, to the extent not in conflict with those rules,
Chapter 2505. of the Revised Code .
(Emphasis added.) As
{¶ 26} Accordingly, for the reasons stated above, we find that we lack jurisdiction to consider the trial court‘s denial of appellants’
{¶ 27} Appeal dismissed.
S. POWELL, P.J., and M. POWELL, J., concur.