2004 Ohio 6523 | Ohio Ct. App. | 2004
{¶ 2} On November 27, 2002, OHG and OHC filed a motion to strike any reference to attorney-client privileged information contained in Shaffer's complaint, including any reference to the June 10, 2002 opinion letter. OHG and OHC also moved for a protective order preventing Shaffer from divulging or seeking discovery of privileged information. The trial court denied the motion to strike and motion for protective order on January 9, 1993, finding that Shaffer, rather than OHG and OHC, owned the attorney-client privilege with respect to communications with, and documents produced by, company counsel. OHG and OHC timely appealed from that determination.
{¶ 3} While the appeal of the privilege issue was pending, MGO, on July 1, 2003, filed a motion for summary judgment seeking dismissal of Shaffer's claims against MGO on two grounds: (1) MGO's status as a member of OHG, a limited liability company, sheltered it from liability for OHG's actions; and (2) MGO was not Shaffer's employer for purposes of R.C.
{¶ 4} On October 3, 2003, the trial court granted summary judgment for MGO on both of plaintiff's claims. In particular, the court found that MGO could not be liable for OHG's alleged wrongdoing based solely on its role as a member of a limited liability company and that Shaffer had failed to produce any evidence to substantiate his claims that MGO was an agent of OHG or that MGO was otherwise Shaffer's employer. The trial court journalized its decision in an entry filed October 15, 2003, without the language provided for in Civ.R. 54(B).
{¶ 5} On October 16, 2003, OHG and OHC filed a motion for summary judgment seeking dismissal of Shaffer's claims on three bases: (1) Shaffer alleged possible future violations as opposed to past violations as required by R.C.
{¶ 6} On January 8, 2004, this court rendered an opinion on the privilege issue, holding that the attorney-client privilege belonged to OHG and that Shaffer, as a former executive, had no right to waive the privilege on behalf of OHG. Shaffer v.OhioHealth Corp., Franklin App. No. 03AP-102,
{¶ 7} By decision filed January 12, 2004, the trial court granted summary judgment for OHG and OHC. The court found that OHC could not be liable for OHG's alleged wrongdoing based solely on its role as a member of a limited liability company and that Shaffer had failed to produce sufficient evidence to substantiate his claims that OHC was an agent of OHG or that OHC was otherwise Shaffer's employer. The court found sufficient evidence to establish a genuine issue of material fact as to the timeframe of the alleged violations; however, the court further found that Shaffer failed to comply with the written reporting requirements set forth in R.C.
{¶ 8} Based upon this court's January 8, 2004 opinion, the trial court, on March 3, 2004, granted the motion to strike and motion for protective order and struck all references to attorney-client privileged information contained in Shaffer's complaint.
{¶ 9} On March 3, 2004, Shaffer filed a notice of appeal "from the Court's February 3, 2004 Final Entry Granting Defendants Ohiohealth Group, LLC and Ohiohealth Corporation's Motion for Summary Judgment filed October 16, 2003." Shaffer sets forth two assignments of error, as follows:
I. The trial court erred as a matter of law in granting appellees' motions for summary judgment.
II. The trial court abused its discretion in granting defendants ohiohealth group, LLC and ohiohealth corporation's November 27, 2002 motion to strike from plaintiff's complaint any attorney-client privileged information and for protective order.
{¶ 10} By his first assignment of error, Shaffer contends the trial court erred in granting summary judgment to all three defendants. This court reviews a summary judgment disposition independently and without deference to the trial court's determination. Brown v. Scioto Cty. Bd. of Commrs. (1993),
{¶ 11} As an initial matter, we must consider MGO's contention that Shaffer failed to comply with App.R. 3(D) by failing to state in his notice of appeal that he is appealing from the October 15, 2003 order granting summary judgment to MGO. Because Shaffer's first assignment of error is predicated, in part, on the October 15, 2003 order, but his notice of appeal designates only the trial court's February 3, 2004 final judgment as the order appealed, MGO contends Shaffer's appeal, as it relates to MGO, should be dismissed.
{¶ 12} App.R. 3(D) provides a notice of appeal "shall designate the judgment, order or part thereof appealed from." Interlocutory orders, however, are merged into the final judgment; thus, an appeal from the final judgment includes all interlocutory orders merged with it. Kvinta v. Kvinta, Franklin App. No. 02AP-836, 2003-Ohio-2884, at ¶ 20, citing Bard v.Society Natl. Bank (Sept. 10, 1998), Franklin App. No. 97APE11-1497. The October 15, 2003 order did not dispose of all the claims between the parties and did not contain an express determination that there was no just reason for delay; thus, it was interlocutory. Civ.R. 54(B); Id. Accordingly, it merged into the February 3, 2004 final judgment and did not need to be separately identified in the notice of appeal. Accordingly, Shaffer's appeal of the trial court's grant of summary judgment to MGO is properly before us.
{¶ 13} R.C.
{¶ 14} For an employee to be afforded protection as a "whistleblower," the employee must strictly comply with the requirements of R.C.
{¶ 15} In granting summary judgment in favor of OHG and OHC, the trial court rejected Shaffer's contention that the June 10, 2002 letter from OHG company counsel to him, which was provided at his request to the Executive Committee, satisfied the written notification requirement of R.C.
{¶ 16} Having so found, the court noted that Shaffer testified by deposition that he never personally filed a written report with OHG. The court further noted there was no evidence establishing whether Shaffer's request for counsel's legal opinion was made orally or by written communication. Although the court suggested that a letter from Shaffer to counsel outlining his concerns, coupled with a letter from corporate counsel to OHG either referencing or attaching Shaffer's letter, might constitute sufficient evidence to create a genuine issue of material fact, the court ultimately concluded that, without evidence of a writing by Shaffer either directly to OHG or to corporate counsel, OHG and OHC were entitled to judgment as a matter of law on the issue of written notification.
{¶ 17} On appeal, Shaffer relies upon Keefe v. YoungstownDiocese of the Catholic Church (1997),
{¶ 18} Following these events, Keefe's relationship with the principal deteriorated and, in July 1995, she was discharged for insubordination. Keefe sued the Diocese, alleging, among other things, violations of R.C.
{¶ 19} On appeal, the court framed the issue as "whether reasonable minds could conclude that [Keefe] subsequently filed a written report with her supervisor that provided sufficient detail to identify and describe the violation." Id. at 6. The court concluded that the September 1994 letter to the Diocese qualified as such a report. In so concluding, the court noted that the letter was written directly to the Diocese and specifically set forth Keefe's allegations that the principal had paid school personnel from special accounts without making the applicable tax deductions.
{¶ 20} Shaffer contends Keefe supports his contention that the June 10, 2002 letter satisfies the written notice requirement of R.C.
{¶ 21} Moreover, the Keefe court was not asked to decide the issue raised in the instant case. The issue to be determined, as framed by the court, was whether the language of the letter sent to the employer was sufficiently detailed to advise the employer of an alleged violation. The fact that the sufficiency of the notice was the disputed issue is apparent from the court's reliance upon Rheinecker v. Forest Laboratories, Inc. (S.D.Ohio 1993),
{¶ 22} In Moshier v. Jeg's High Performance Centers, Inc.
(1994),
{¶ 23} As in Moshier, Shaffer also invites this court to rewrite R.C.
{¶ 24} Because we believe reasonable minds could not conclude the June 10, 2002 letter satisfies the written reporting requirement, we find Shaffer did not strictly comply with the dictates of R.C.
{¶ 25} For his public policy claim, Shaffer relies on the public policy against discharging employees who report violations of federal, state or local laws, the public policy against discharging employees who take action to ensure the accuracy of violations they report, and the public policy against retaliating against employees who seek investigation and prosecution of individuals who commit criminal or civil wrongdoings or violate company policy. In short, Shaffer claims he was discharged for reporting the antitrust violations and for taking action to ensure the accuracy of the information he reported, and that, in Ohio, there is public policy against discharging him for these actions. A clear expression of the public policies upon which Shaffer relies is evident in the scope of R.C.
{¶ 26} In Kulch, the Ohio Supreme Court stated, at 153:
* * * [T]he public policy embodied in the Whistleblower Statute is limited. By imposing strict and detailed requirements on certain whistleblowers and restricting the statute's applicability to a narrow set of circumstances, the legislature clearly intended to encourage whistleblowing only to the extentthat the employee complies with the dictates of R.C.
(Emphasis sic.)
{¶ 27} Consequently, Shaffer is limited to asserting his claim for tortious wrongful discharge in violation of public policy pursuant to the requirements of R.C.
{¶ 28} Turning to Shaffer's appeal of the trial court's judgment in favor of MGO, we need not address his contention that the trial court erred in granting summary judgment to MGO on grounds that MGO was not Shaffer's employer for purposes of R.C.
{¶ 29} Shaffer's second assignment of error challenges the trial court's March 3, 2004 decision granting the motion to strike and motion for protective order filed by OHG and OHC. OHG and OHC contend, in a motion to dismiss filed with this court, that this assignment of error is not properly before this court because Shaffer failed to designate in the notice of appeal that he is appealing from the trial court's March 3, 2004 decision.
{¶ 30} A review of the record reveals that no appealable judgment entry has been journalized with regard to the trial court's decision; thus, this assignment of error must be dismissed for lack of a final appealable order. Further, had an appealable judgment entry been journalized, our resolution of the first assignment of error would render this assignment of error moot. For these reasons, the motion to dismiss filed by OHG and OHC is denied.
{¶ 31} For the foregoing reasons, Shaffer's first assignment of error is overruled and the second assignment of error is dismissed for lack of a final appealable order. The judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Motion to dismiss denied, judgment affirmed.
Klatt and McCormac, JJ., concur.
McCormac, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section