CELINE GANGALE v. LORETTA COYNE, ET AL.
No. 110772
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
January 27, 2022
[Cite as Gangale v. Coyne, 2022-Ohio-196.]
EILEEN A. GALLAGHER, J.
RELEASED AND JOURNALIZED: January 27, 2022
Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-20-936181
Appearances:
Wuliger & Wuliger and Mark E. Kremser, for appellee.
Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole A. Cruz, and Kelley R. Tauring, for appellant.
EILEEN A. GALLAGHER, J.:
{1} In this accelerated appeal, appellant Domenic Gangale (“Domenic“) appeals from an order of the Cuyahoga County Common Pleas Court denying his motion to quash a subpoena duces tecum that appellee Celine Gangale (“Celine“), Domenic‘s ex-wife, had issued to Santagata Fini, L.L.C. (“Santagata Fini“), the
{2} For the reasons that follow, we affirm.
Procedural and Factual Background
{3} Celine and Domenic were divorced on April 1, 2019 in Gangale v. Gangale, Cuyahoga County D.R. No. DR-16-362824 (the “divorce action“). The final judgment entry of divorce inсorporated an in-court agreement entered between the parties on March 7, 2019 (the “divorce agreement“). After the divorce, Domenic filed a series of post-decree motions relating to the divorce decree.
{4} On August 19, 2020, Celine filed a legal malpractice action against Loretta Coyne, Richard J. Stahl III and Coyne Stahl Jansen, L.L.C. (collectively, “Coyne“), the attorneys who had represented her in the divorce action. Celine asserted claims of professional negligence/malpractice, breach of contract, breach of fiduciary duty/duty of lоyalty and unjust enrichment against Coyne based on Coyne‘s alleged failure to adequately protect Celine‘s interests during the divorce and post-decree proceedings. The complaint includes allegations that Coyne failed
{5} In July 2021, Celine issued a subpoena duces tecum to Santagata Fini, the accounting firm that prepared the tax returns for Domenic and his businesses, requesting the production of the following documents:
- Any and all documents of whatever kind or description relating to any accounting and/or tax preparation services you provided to Celine Gangale and/or Domenic Gangale, for the years 2016-2020, including but not limited to:
- All federal, state and/or local tax returns; and
- All attachments, schedules, exhibits, and/or any other accompanying forms to any returns.
- Any and all documents of whatever kind or description relating to any accounting and/or tax preparation services you provided to any and all businesses owned and/or operated by Domenic Gangale, including but not limited to Paramount Concrete Construction and Independence Cement, L.L.C., for the years 2016-2020, including but not limited to:
- All federal, state and/or local tax returns; and
- All attachments, schedules, exhibits, and/or any other accompanying forms to any returns.
- Any and all documents of whatever kind or description, relating to communications between your office and the office of attorney Loretta Coyne regarding the matter of Domenic Gangale v. Celine Gangale, Cuyahoga County Case No. DR-16-362824.
{7} Instead, Domenic‘s attorney sent a letter to Celine‘s attorney, asserting that Celine does “not have any right to [his] tax returns or his business returns” and demanding that Celine withdraw the subpoena. Celine‘s attorney responded that because Celine was “required to prove ‘the case within the case‘” in her legal malpractice action, Celine needed to “obtain the discovery [Coyne] failеd to obtain in the divorce action.” Celine‘s attorney indicated that he was “willing to consider an appropriate protective order” if Domenic identified his “specific concerns” regarding the subpoena. Domenic‘s attorney replied that he did “not agree with [Celine‘s counsel‘s] analysis” and, once again, requested that the subpoena be withdrawn.
{8} On July 21, 2021, Domenic filed a motion to quash the subpoena, arguing that the documents sought by the subpoena, i.e., “confidential financial information and documentation” relating to him and his businesses, were “irrelevant” to the issues in the legal malpractice action and constituted an improper “fishing expedition.” Further, with respect to the documents requested for the years 2019-2020, Domenic asserted that they were “not in existence at the time of the parties’ divorce” and, therefore, “could not have impacted the outcome of the divorce proceedings.” In support of his motion, Domenic attached a copy of the subpoena duces tecum and copies of correspondence between his counsel and Celine‘s counsel relating to the subpoena.
{10} On August 5, 2021, the trial court entered an order denying Domenic‘s motion to quash. The trial court found that Domenic lacked standing to quash the subpoena because the subpoena was served on Santagata Fini, not Domenic, and because the requested documents were not privileged. The trial court further found that the requested financial documents were relevant to Celine‘s “legal malpractice claims in [the] matter and the time frame regarding the underlying
{11} Domenic appealed, raising the following two assignments of error for review:
Assignment of Error Number 1: The trial court erred as a matter of law and abused its discretion by finding that the appellаnt lacked standing to file a motion to quash under
Civ.R. 45 .Assignment of Error Number 2: The trial court erred as a matter of law and abused its discretion by denying appellant‘s motion to quash and ordering the production of the appellant‘s personal and business financial records and documentation post-dating the March 7, 2019 in-court agreement.
{12} On September 22, 2021, Celine filed a motion to dismiss the appeal. Celine argued that the trial court‘s order was not a final, appealable order because it did not compel the production of privileged documents and Domenic could not otherwisе demonstrate “irremediable prejudice” arising from the production of the requested documents. Domenic opposed the motion arguing that the trial court‘s order was final and appealable under
This court does not require that to be а final appealable order, the denial of a nonparty‘s motion to quash has to involve privileged or confidential information. See Tisco Trading USA, Inc. v. Cleveland Metal Exchange, 8th Dist. Cuyahoga No. 97114, 2012-Ohio-493; Parma v. Schoonover, 8th Dist. Cuyahoga 100512, 2014-Ohio-400; Munro v. Dargai, 8th Dist. Cuyahoga No. 54622, 1988 Ohio App. LEXIS 1144 (Mar. 31, 1988); Godwin v. Facebook, 8th Dist. Cuyahoga No. 109203, 2020-Ohio-4834, ¶ 11 (dicta).
Law and Analysis
{14} As an initial matter, we note that, in her appellate brief, Celine asks this court to revisit the issue of whether we have jurisdiction to hear this appeal. We decline to do so.
Standing
{15} In his first assignment of error, Domenic contends the trial court erred and abused its discretion in determining that he lacked standing to challenge the subpoena duces tecum directed to Santagata Fini.1 The trial court held that because Domeniс was not the subpoenaed party, he lacked standing to file a motion
{16} Standing is a question of law that we review de novo. See, e.g., State ex rel. Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 27, citing Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 9.
{17}
On timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order appearаnce or production only under specified conditions, if the subpoena does any of the following:
(a) Fails to allow reasonable time to comply;
(b) Requires disclosure of privileged or otherwise protected matter and no exception or waiver applies;
(c) Requires disclosure of a fact known or opinion held by an expert not retained or specially employed by any party in anticipation of litigation or preparation for trial as described by
Civ.R. 26(B)(5) , if the fact or opinion does not describe specific events or occurrences in dispute and results from study by that expert that was not made at thе request of any party;(d) Subjects a person to undue burden.
{18}
{19} Likewise, ”
{20} Courts have recognized that parties or other persons who have a personal right, privilege, privacy interest or proprietary interest in information or documents subpoenaed from a nonparty may have standing to file a motion to quash the subpoena. See, e.g., Hanick at ¶ 52 (noting exception to “general rule” that “it is the subpoenaed person who has standing to quash the subpoena” exists “where a party has a personal privilege or right related to the information sоught“) (emphasis deleted); Molnar at ¶ 11, 17-18, 31 (in legal malpractice action, plaintiffs had standing to file a motion to quash a subpoena propounded to police department that plaintiffs claimed sought their privileged information); In re Deposition of Turvey, 3d Dist. Van Wert No. 15-02-07, 2002-Ohio-6008, ¶ 13 (hospital had standing to file a motion to quash subpoena duces tecum issued to employee seeking documents relevant to conversations employee had that occurred during the course and scope of her employment with the hospital because it had “a proprietary interest in the content of the conversations as well as the dоcuments generated by the conversations” and, therefore, “a right to raise their confidentiality against a
{21} Here, Domenic has claimed, and clearly has, a personal right to, and privacy interest in, the financial documents sought from Santagata Fini. The subpoenaed documents include his personal tax returns and the tax returns of his closely held businesses. Accordingly, Domenic has standing to challenge the
{22} This, however, does not end our inquiry. The trial court also denied Domenic‘s motion to quash on the ground that the requested documents were
The Triаl Court‘s Ruling that the Documents Were Discoverable
{23} In his second assignment of error, Domenic argues that the trial court erred and abused its discretion in determining that the documents at issue, i.e., his personal and business tax returns and financial records that post-date the divorce agreement, were discoverable under
{24} We generally review a trial court‘s ruling on discovery matters, including motions to quash subpoenas, for abuse of discretion. See, e.g., N.E. Monarch Constr., Inc. v. Morganti Ent., 8th Dist. Cuyahoga No. 109845, 2021-
“[A]n abuse of discretion involves far more than a difference in * * * opinion * * *. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an ‘abuse’ in reaching suсh determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.”
Id. at 87, quoting State v. Jenkins, 15 Ohio St.3d 164, 222, 473 N.E.2d 264 (1984); see also Shaut v. Natl. Cas. Co., 8th Dist. Cuyahoga No. 110010, 2021-Ohio-2522, ¶ 29 (“A court abuses its discretion when a legal rule entrusts a decision to a judge‘s discretion and the judge‘s exercise of that discretion is outside of the legally permissible range of choices.“), quoting State v. Hackett, 164 Ohio St. 3d 74, 2020-Ohio-6699, 172 N.E.3d 75, ¶ 19.
{25}
Subject to the scope of discovery provisions of
Civ.R. 26(B) and45(F) , a person not a pаrty to the action may be compelled to produce documents, electronically stored information or tangible things or to submit to an inspection as provided inCiv. R. 45 .
{26}
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party‘s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the pаrties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
{27} Although tax returns are not “privileged,” they “reflect intimate, private details of an individual‘s life.” Mezatasta v. Ent. Hill Farm, 6th Dist. Erie No. E-15-037, 2016-Ohio-3371, ¶ 18, citing State ex rel. Fisher v. Cleveland, 109 Ohio St.3d 33, 2006-Ohio-1827, 845 N.E.2d 500, ¶ 27, 32. As such, individuals often have expectations of privacy and confidentiality with respect to their tax returns. Mezatasta at ¶ 18; see also Garver Rd. Invest., L.L.C. v. Diversapack of Monroe, L.L.C., 12th Dist. Butler Nos. CA2013-10-181 and CA2013-10-183, 2014-Ohio-3551
{28} However, simply because documents are “private” or “confidential” does not mean they are not discoverable. Such documents may be discoverable if “relevant to any party‘s claim or defense” and the discovery is “proportional to the needs of the case.”
{29} Domenic disputes Celine‘s characterization of the post-decree proceedings. He asserts that his post-decree motions “did not concern child or spousal support,” but, rather, sought to hold Celine in contempt of court fоr her refusal to cooperate in the listing and sale of the former marital residence. This information is not in the record before us. However, even assuming Domenic‘s post-decree motions were limited to issues surrounding the listing and sale of the marital residence, this would not preclude the trial court from reasonably exercising its discretion and allowing discovery of Domenic‘s post-decree financial records based on the allegations of Celine‘s complaint.
{30} Celine‘s legal malpractice claims are not limited to acts or omissions that occurred during the divorce proceedings. The complaint also includes allegations that, after the divorce was finalized, Celine had asked Coyne to “seek to increase support and develop evidence that Mr. Gangale had minimized his income and/or hidden assets,” that she had “supplied Coyne with evidence that Mr. Gangale
{31} Domenic does not contend that the conditions pursuant to which the trial court ordered production of the documents at issue, i.e., “either under a protective order or in a manner that otherwise ensures for the confidentiality of the documents,” do not provide adequate protection for the documents. And although he challenges the trial court‘s order to the extent it compels the production of his “personal and business financial records and documentation” post-dating the parties’ divorce agreement, i.e., from 2019-2020, he does not challenge the trial court‘s order to the extent it requires production of the very same documents for the years 2016-2018.
{32} Based on the limited record before us and given the broad scope of discovery permitted under the Civil Rules, Domenic has not shown that the trial court abused its discretion and acted unreasonably, arbitrarily or unconscionably in determining that the documents at issue were discoverable under
{33} Judgment affirmed.
It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, JUDGE
ANITA LASTER MAYS, P.J., and
MARY EILEEN KILBANE, J., CONCUR