Kenneth‘s Hair Salons & Day Spas, Inc., Petitioner-Appellee, v. Jane G. Braun, Respondent-Appellant.
No. 17AP-816 (C.P.C. No. 17MS-634)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
January 18, 2018
[Cite as Kenneth‘s Hair Salons & Day Spas, Inc. v. Braun, 2018-Ohio-186.]
(REGULAR CALENDAR)
Rendered on January 18, 2018
Taft Stettinius & Hollister LLP, James D. Abrams and David J. Butler, for appellee.
Hrabcak & Company, L.P.A., Michael Hrabcak and Benjamin B. Nelson, for appellant.
ON MOTION TO DISMISS
KLATT, J.
{¶ 1} Petitioner-appellee, Kenneth‘s Hair Salons & Day Spas, Inc., has moved to dismiss this appeal for lack of a final appealable order. Respondent-appellant, Jane G. Braun, has filed a memorandum in opposition.
{¶ 2} Kenneth‘s began this matter in the trial court on October 2, 2017 with a
{¶ 3} Braun filed on October 27, 2017 a motion for reconsideration in the trial court asserting that Kenneth‘s
{¶ 4} The trial court did not rule on Braun‘s motion for reconsideration because Braun filed a timely notice of appeal to this court on November 21, 2017, from the original trial court order of October 24. Kenneth‘s moved on November 30, 2017, to dismiss the appeal for lack of a final appealable order. The matter is now before this court solely on that issue.
{¶ 5}
{¶ 6} Appellate courts in Ohio have jurisdiction only to review final appealable orders of lower courts within their districts. K.B. v. Columbus, 10th Dist. No. 14AP-315, 2014-Ohio-4027, ¶ 8;
{¶ 7}
(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:
(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(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.
(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.
{¶ 8} Two alternative rationales are argued to support that the present trial court order is appealable under
{¶ 9} If we consider that the order grants a provisional remedy, it is a “final order” under
{¶ 10} Generally, ordinary discovery orders are not final and appealable under
{¶ 11} “In Ohio, the burden of showing that testimony or documents are confidential or privileged rests upon the party seeking to exclude it.” Covington v. MetroHealth Sys., 150 Ohio App.3d 558, 2002-Ohio-6629, ¶ 24 (10th Dist.); see also Waldmann v. Waldmann, 48 Ohio St.2d 176, 178 (1976) (“It is well-settled that the burden of showing that testimony sought to be excluded under the doctrine of privileged attorney-client communications rests upon the party seeking to exclude it.“). A claim of privilege “must rest upon some specific constitutional or statutory provision.” State ex rel. Grandview Hosp. & Med. Ctr. v. Gorman, 51 Ohio St.3d 94, 95 (1990).
{¶ 12} Braun has not articulated any specific privileged material that might be disclosed in the deposition ordered by the trial court. Without determining whether a
{¶ 13} We accordingly turn to the question of whether the order is appealable because it meets the requirements of
{¶ 14} Precedent on this issue is scarce with respect to
{¶ 15} Kenneth‘s relies on the case of In re Bejarano, 65 Ohio App.3d 202 (3d Dist.1989), in which the court held that while an order denying
[T]he purpose of
Civ.R. 27 is to afford relief from a possible delay of justice. This purpose is hardly served by the delay inherent in the range of appeals which might be promulgated by a prospective defendant. Such delay could result in the loss of the unrecorded testimony the petitioner is attempting to preserve.
{¶ 16} More recently, the First District in Anglin v. Donohoo, 1st Dist. No. C-160913, 2017-Ohio-7630, ¶ 3, agreed with the holding in Bejarano to the extent that it held that the denial of a motion to dismiss a
{¶ 17} Like
{¶ 18} This court, in Lieberman v. Screen Machine Advertising Specialties & Screen Print Design, 10th Dist. No. 96APE05-665, 1997 Ohio App. LEXIS 410 (Feb. 4, 1997) considered an appeal from a trial court‘s pre-petition discovery quest under
{¶ 19} Similarly, this court held two years later in Westfield Ins. Co. v. Universal Underwriters Group, 10th Dist. No. 98AP-1116 (June 3, 1999), that an order granting a
{¶ 20} As with treatment of
{¶ 21} Ultimately, this court sees its own precedent in Lieberman as persuasive. There is no rationale requiring us to distinguish the present order granting pre-litigation discovery pursuant to
Motion to dismiss denied.
BROWN, P.J., and TYACK, J., concur.