Othman v. Heritage Mutual InsuranceOthman v. Heritage Mutual Insurance
{¶ 1} In this insurаnce case, the trial court granted a protective order to prevent the deposition of two attorneys, and it then denied a motion to disqualify the attorneys and their firm. Because there is no final appealable order, we must dismiss the appeal.
*284 {¶ 2} On May 1, 2001, plaintiffs-appellants, Akram and Amani Othman, bought insurance from defendant-appellee, Heritage Mutual Insurance Company, through its agent, defendant Neace Lukens, for their property at 3217 Beekman Street, which contained the Cumminsville Carry Out and an apartment. On May 7, 2001, a fire in the apartment caused $54,167.53 in damage to the property.
{¶ 3} Heritage denied the Othmans’ insurance claim. The Othmans sued Heritage and Neace Lukens, claiming that the denial was in bad faith and without reasonable justification. They also claimed that Heritage’s attorneys, Judd Uhl, Mark MacDonald, and the law firm of Freund, Freeze & Arnold, had acted as agents for Heritage in the denial.
{¶ 4} Believing that Heritage’s denial of their claim was based upon the advice and recommendation of Heritage’s attorneys, the Othmans attempted to depose both Uhl and MacDonald. The Othmans also moved to disqualify the attorneys and their firm from any further representation of Heritage.
{¶ 5} Heritage responded with a motion opposing the motion to disqualify and asking for a protective order to prevent the depositions of Uhl and MacDonald. The trial court granted the proteсtive order for Uhl and MacDonald and denied the motion to disqualify the firm of Freund, Freeze & Arnold from representing Heritage.
{¶ 6} Before we can reach the merits of the Othmans’ appeal, that is, the merits of whether the trial court erred when it granted Heritage’s motion for a protective order and denied the Othmans’ motion to disqualify Heritаge’s attorneys, we must first decide whether the trial court’s judgment was a final appealable order.
{¶ 7} In determining whether a judgment is final, an appeals court must engage in a two-step analysis. First, it must determine whether the order is final within the meaning of
{¶ 8} The Othmans assert that the trial court’s ruling was a final order under
{¶ 9} A provisional remedy is defined as “a proceeding ancillary to an action, inсluding, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, or suppression of evidence.” 2
{¶ 10} We agree that the ruling on the Othmans’ motion to disqualify Heritage’s attorneys and Heritage’s motion for a protective order involved a provisional remedy. Heritage’s motion involved discovery of information protected by the attorney-client privilege, a specific instance of a provisiоnal remedy mentioned in the statute. And the Othmans’ motion for disqualification of counsel was also clearly ancillary to the main action. 3 We also аcknowledge that the granting of the motion for a protective order and the denial of the motion for disqualification determined the action with rеspect to the motions.
{¶ 11} But the Othmans’ argument that this was a final appealable order stumbles over the final requirement that the Othmans would not be affordеd a meaningful or effective remedy by an appeal once their entire claim is determined. In some instances, the proverbial bell cannоt be unrung and an appeal after final judgment on the merits will not rectify the damage suffered by the appealing party. 4 But in this case, no bell has rung. The trial court granted the protective order, preventing the disclosure of any privileged material, and denied the disqualification of Heritage’s attorneys.
{¶ 12} In Bell v. Mt. Sinai Med. Ctr., 5 the Ohio Supreme Court held that a court order directing a party to submit requested discovery mаterials for an in camera inspection was not a final appealable order. While that case involved a different definition of a final оrder — one affecting a substantial right that if not immediately appealable would foreclose appropriate relief in the future — the cоurt’s analysis on the issue of irreparable harm is applicable to our case.
{¶ 18} The court distinguished several cases in which the order in question cоmpelled disclosure of allegedly privileged information, rather than preventing or delaying it. The court then stated, “In the present case, it would only bе after 'this in camera review and a trial court order compelling disclosure that the substantial rights of appellants would be implicated. If the trial court determinеs *286 that all of the requested information is privileged, any issues which may have been the subject of an appeal would be rendered moot. Conversеly, if some documents are determined to be subject to disclosure, an appeal on narrowed issues would be available * * 6
{¶ 14} Similarly, the denial of a motion to.disqualify counsel, as opposed to a grant of the motion, can be effectively appealed after a final judgment in the entirе action. In Bernbaum v. Silverstein, 7 the Ohio Supreme Court distinguished between a grant and a denial of a motion to disqualify counsel. The court held that the claimed prejudice in denying a motion to disqualify counsel was effectively reviewable after final judgment,, reasoning that any damage was no more curable by an immediatе appeal. An order granting disqualification, however, cannot be effectively reviewed after final judgment. 8 In Russell v. Mercy Hosp., 9 the court added, “When a motion for disqualification is granted, a legitimate interest of a party is necessarily implicated — the right to counsel of one’s choice. The converse is nоt necessarily true.”
{¶ 15} Though case law and statutory changes have been made since the Ohio Supreme Court decided Bernbaum and Russell, and those changes have detracted from their principal holdings, the logic employed in the decisions remains sound. In Freer v. Loma Enterprises, Inc., 10 the Seventh Appellate District reached the samе conclusion and relied on Bernbaum and Russell in holding that an order denying a motion for disqualification of counsel was not a final appealable order.
{¶ 16} The Freer cоurt stated, “[A]ppellants will not suffer irreparable harm by a delayed appeal. Any allegation of damage to appellants’ defense can be rectified. For instance, if appellants establish that they were prejudiced by the court’s refusal to disqualify appellees’ counsel, then appellants may receive a new trial. As a result, a decision in favor of appellants on an appeal after final judgment will not be а hollow victory.” 11
*287 {¶ 17} And here of course, if the Othmans win their case on the merits, the issue of the disqualification of Heritage’s attorneys, along with the issue of the рrotective order, will be moot.
{¶ 18} In addition, the absence of a statement by the trial court in the entry granting the protective order and denying the disqualifiсation that there was no just reason to delay an appeal causes us to conclude that the trial court was aware that its order was not a final appealable order under
{¶ 19} Because the trial court’s order is not a final appealable order, we dismiss the Othmans’ appeal.
Appeal dismissed.
Notes
. See
Toto v. St. Paul Fire & Marine Ins. Co.,
8th Dist. No. 82874,
.
. See
Bernbaum v. Silverstein
(1980),
. See
State v. Muncie
(2001),
.
Bell v. Mt. Sinai Med. Ctr.
(1993),
. Id. at 64,
.
Bernbaum v. Silverstein
(1980),
. Id.
.
Russell v. Mercy Hosp.
(1984),
.
Freer v. Loma Enterprises, Inc.
(Dec. 30, 1999), 7th Dist. No. 98 CA 194,
. Id.; see, also,
Lemmo v. House of LaRose Cleveland, Inc.,
8th Dist. No. 82182,
. See
Stewart v. Midwestern Indem. Co.
(1989),