Rood, M.D. v. FRJ, Ltd.Rood, M.D. v. FRJ, Ltd.
RICHARD P. ROOD, M.D., : O P I N I O N
Plaintiff-Appellee, :
CASE NO. 2010-L-077
- vs - :
FRJ, LTD, et al., :
Defendants-Appellants. :
Civil Appeal from the Court of Common Pleas, Case No. 09 CV 003636.
Judgment: Affirmed.
Ari H. Jaffe and Jonathan T. Hyman, Kohrman, Jackson & Krantz, P.L.L., One Cleveland Center, 20th Floor, 1375 East Ninth Street, Cleveland, OH 44114-1793 (For Plaintiff-Appellee).
Maynard A. Buck and Patrick O. Peters, Benesch, Friedlander, Coplan & Arnoff, L.L.P., 2300 BP Tower, 200 Public Square, Cleveland, OH 44114-2378 (For Defendants-Appellants).
TIMOTHY P. CANNON, P.J.
{¶1} On November 6, 2009, appellee, Dr. Richard P. Rood, filed a complaint and petition for discovery pursuant to
{¶3} Appellee, in his brief in opposition to appellants’ motion to dismiss, asserted that he had properly pled a claim for pre-litigation discovery under
{¶4} Appellants filed a reply brief.
{¶5} In a June 23, 2010 judgment entry, the trial court granted in part, and denied in part, appellants’ motion to dismiss and motion for sanctions. The trial court dismissed a portion of count one of appellee‘s complaint seeking pre-suit discovery pursuant to
{¶6} Appellants filed a timely notice of appeal and allege the following assignment of error:
{¶8} At the outset, this court must first determine whether it has jurisdiction to consider this appeal. As a general rule, other than those orders that deal with discovery of privileged matters, discovery orders are considered interlocutory and therefore not final and appealable orders. See Legg v. Hallet, 10th Dist. No. 07AP-170, 2007-Ohio-6595, at ¶16.
{¶9} Appellate courts have jurisdiction to “review, affirm, modify, set aside or reverse judgments or final orders.”
{¶10} The Ninth Appellate District has concluded that, “in the context of a statutory action for discovery, a trial court order compelling provision of the requested discovery determines the action and prevents judgment in favor of the party contesting discoverability.” Natl. City Bank, Northeast v. Amedia (1997), 118 Ohio App.3d 542, 545-546. See Cerasuolo v. Goodyear Tire & Rubber Co. (Apr. 5, 1989), 9th Dist. No. 13864, 1989 Ohio App. LEXIS 1241, *2. See, also, Lieberman v. Screen Mach. Adver. Specialties & Screen Print Design (Feb. 4, 1997), 10th Dist. No. 96APE05-665, 1997 Ohio App. LEXIS 410, *8.
{¶12} This court reviews discovery issues under an abuse of discretion standard. Baker v. Cooper Farms Cooked Meats, 3d. Dist. No. 15-09-03, 2009-Ohio-3320, at ¶7. (Citations omitted.) An abuse of discretion is the trial court‘s “failure to exercise sound, reasonable, and legal decision-making.” State v. Beechler, 2d. Dist. No. 09-CA-54, 2010-Ohio-1900, at ¶62, quoting Black‘s Law Dictionary (8 Ed.Rev.2004) 11.
{¶13} Complaints or petitions for discovery are governed by
{¶14} “When a person claiming to have a cause of action or a defense to an action commenced against him, without the discovery of a fact from the adverse party, is unable to file his complaint or answer, he may bring an action for discovery, setting forth in his complaint in the action for discovery the necessity and the grounds for the action, with any interrogatories relating to the subject matter of the discovery that are necessary to procure the discovery sought. Unless a motion to dismiss the action is filed under Civil Rule 12, the complaint shall be fully and directly answered under oath
{¶15} The Supreme Court of Ohio has limited the application of
{¶16} Therefore, “[a]n action for discovery is to be used only to uncover facts necessary for pleading, not to gather proof to support a claim or to determine whether a cause of action exists. ***
{¶17}
{¶18}
{¶20} “(a) A statement of the subject matter of the petitioner‘s potential cause of action and the petitioner‘s interest in the potential cause of action;
{¶21} “(b) A statement of the efforts made by the petitioner to obtain voluntarily the information from the person from whom the discovery is sought;
{¶22} “(c) A statement or description of the information sought to be discovered with reasonable particularity;
{¶23} “(d) The names and addresses, if known, of any person the petitioner expects will be an adverse party in the potential action;
{¶24} “(e) A request that the court issue an order authorizing the petitioner to obtain the discovery.
{¶25} “(2) The petition shall be served upon the person from whom discovery is sought and, if known, any person the petitioner expects will be an adverse party in the potential action, by one of the methods provided in these rules for service of summons.
{¶27} “(a) The discovery is necessary to ascertain the identity of a potential adverse party;
{¶28} “(b) The petitioner is otherwise unable to bring the contemplated action;
{¶29} “(c) The petitioner made reasonable efforts to obtain voluntarily the information from the person from whom the discovery is sought.” (Emphasis added.)
{¶30} Reading the plain language of the statute and the civil rule, it is clear there are four important distinctions. First, the statute provides for discovery by use of interrogatories, while the civil rule provides for the production of documents. Second, while the statute may be employed if the information is needed for a complaint or an answer, the civil rule is limited to use by the party filing a claim. Third, the statute limits the action to discovery of facts necessary to determine a cause of action or to file an answer. On the other hand, the civil rule limits the action to discovery of identification of proper parties to include in a cause of action. And, fourth, the statute limits its application only to the potentially adverse party to the contemplated lawsuit, yet the civil rule allows a party to obtain discovery from a person who may not be named as a defendant in the action.
{¶31} Appellants argue that the trial court erred in denying in part the motion to dismiss because the requested discovery was not necessary to ascertain the identity of a potentially adverse party nor was appellee unable to plead a cause of action without the requested information.
{¶33} First, appellants maintain that the discovery requested is not necessary to ascertain the identity of any party, as required by
{¶34} As stated in the Staff Notes to
{¶35} A review of appellee‘s complaint reveals that, although he names the aforementioned parties, he also claims that without the requested discovery, he is unable to ascertain the identity of other individuals against whom to bring a claim. Further, it is clear that the agreements between the parties establish the methods of computing the valuation of appellee‘s interest in the event of termination. While
{¶36} Second, appellants argue that appellee failed to establish that he could not bring an action absent that information sought.
{¶37} In Benner, supra, the Sixth Appellate District stated that, although the civil rule allows discovery to ascertain the identity of a potentially adverse party, it is appropriate to use
{¶38} There are repeated references in the civil rule to potential actions. However, it is clear from the Staff Notes that the cause of action is only “potential” in the sense that it has not yet been filed. Under the civil rule, there must be a threshold identification of a known cause of action for the petitioner to proceed.
{¶39} In his complaint, appellee alleges that he believes in good faith that he has the following claims: breach of fiduciary duty, breach of contract, breach of the FRJ, Ltd.
{¶40} Appellants’ assignment of error is without merit.
{¶41} Based on the opinion of this court, the judgment of the Lake County Court of Common Pleas is hereby affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.