Case Information
*1
[Cite as
Wilhelm-Kissinger v. Kissinger,
W ILHELM -K ISSINGER , A PPELLEE ,
v.
K ISSINGER , A PPELLANT .
[Cite as
Wilhelm-Kissinger v. Kissinger,
disqualify counsel in a divorce proceeding is not a final, appealable ordеr. (No. 2010-0992 — Submitted February 16, 2011 — Decided May 19, 2011.) C ERTIFIED by the Court of Appeals for Summit County, No. 25105. _________________ YLLABUS OF THE C OURT
The denial of a motion to disqualify counsel in a divorce proceeding is not a final,
appealable order.
__________________
M G EE B ROWN , J.
Jeffrey R. Kissinger, appellant, appeals from a decision of the
Ninth District Court of Appeals, which determined that the trial court’s denial of
his mоtion to disqualify opposing counsel was not a final, appealable order. We
accepted jurisdiction to resolve a conflict in the courts of appeals.
Wilhelm-
Kissinger v. Kissinger
, 125 Ohio St.3d 1461,
motion to disqualify opposing counsel in a divorce proceeding is not a final, appealable order under R.C. 2505.02(B)(2). Accordingly, we answer the certified question in the negаtive and affirm the judgment below.
Facts and Procedural History *2 UPREME OURT OF O HIO This appeal stems from divorce proceedings involving Kissinger
and appellee, Beth A. Wilhelm-Kissinger. During the proceedings, а dispute arose regarding allegedly illegally obtained and privileged e-mail messages between Kissinger and his attorney that Wilhelm-Kissinger had apparеntly taken from Kissinger’s computer and given to her attorney. Kissinger moved the Summit County Court of Common Pleas Domestic Relations Division to disqualify Wilhelm-Kissinger’s attorney. Aftеr a hearing in which Wilhelm- Kissinger’s attorney reported that he never sought or reviewed any of the e-mail messages in question, the trial court denied the disqualification motion, and Kissinger appealed. The Ninth District Court of Appeals dismissed Kissinger’s appeal,
determining that it had no jurisdiction because the denial was not a final,
appealable order under R.C. 2505.02(B)(4) (“An order is a final order that may be
reviewed * * * [if it] grants or denies a provisional remedy”). Kissinger moved
for reconsideration, arguing that the denial constituted a final, appealable order
under R.C. 2505.02(B)(2) (“An order is a final order that may be reviewed * *
*[if it] affeсts a substantial right made in a special proceeding * * *”). The Ninth
District Court of Appeals upheld its decision to dismiss the appeal.
Wilhelm-
Kissinger v. Kissinger
(Apr. 15, 2010), Summit App. No. 25105. Kissinger thеn
moved the court of appeals to certify a conflict between its reconsidered decision
and the decision of the Tenth District Court of Appeals in
Crockett v. Crockett
,
Franklin App. No. 02-AP-482,
January Term, 2011
Analysis
{¶ 5} Ohio’s courts of appeals have jurisdiction “to review and affirm, modify, or reverse final orders.” Section 3(B)(2), Article IV, Ohio Constitution. R.C. 2505.02 sets forth severаl types of final, appealable orders. The present appeal involves the category defined by R.C. 2505.02(B)(2), which makes an “order that affeсts a substantial right made in a special proceeding” a final, appealable order.
{¶ 6} A “[s]pecial proceeding” is “an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity.” R.C. 2505.02(A)(2). Therefore, divorce, a statutory matter that did not exist at common law, qualifies as a special proceeding. State ex rel. Papp v. James (1994), 69 Ohio St.3d 373, 379, 632 N.E.2d 889 (identifying divorce as a “special statutory рroceeding” under R.C. 2505.02(B)(2) because “[t]here was no common-law right of divorce. Divorce is purely a matter of statute”). An order affects a substantial right for the purposes of R.C.
2505.02(B)(2) only if an immediate appeal is necessary to protect the right
effectively.
Bell v. Mt. Sinai Med. Ctr.
(1993),
disqualify opposing counsel is a final, appealable order that a party deprived of
counsel can appeal immediately. See
Russell v. Mercy Hosp.
(1984), 15 Ohio
St.3d 37, 39, 15 OBR 136,
two key respects. First, an order granting disquаlification immediately and definitely affects the party it deprives of chosen counsel; the purpose of appealing such an order is tо prevent the removal itself. By contrast, an order denying disqualification, standing alone, affects no right held by the unsuccessful movant because there is nо substantial right to disqualify opposing counsel. Second, an order granting disqualification typically imposes a
permanent effect because it is unlikely to be reconsidered as a trial progresses. Russell , 15 Ohio St.3d at 41, 15 OBR 136, 472 N.E.2d 695, quoting Firestone Tire & Rubber Co. v. Risjord (1981), 449 U.S. 368, 380, 101 S.Ct. 669, 66 L.Ed.2d 571 (Rehnquist, J., concurring), quoting Cohen v. Beneficial Indus. Loan Corp. (1949), 337 U.S. 541, 546-547, 69 S.Ct. 1221, 93 L.Ed. 1528 (“ [U]nlike the denial of a motion disqualifying counsel, which is ‘ “subject to recоnsideration from time to time” ’ during the progress of the trial, a trial court, for all practical purposes, will be unlikely to ever have an oppоrtunity to change its ruling granting disqualification”). Therefore, a grant of a motion to disqualify counsel must be appealed immediately or its effect will be irreversible. An order denying disqualification, however, lacks a similarly permanent effect. See Russell at 41 (“In contrast to a motion denying disqualification, a motion so granting is necessarily more conclusive. * * * It has irreparable and unreviewable consequences for the individual who hired the disqualified counsel as well as for
January Term, 2011
disqualified counsel”). That order may be revisited throughout trial, and the party seeking disqualification may pursue other avenues, such as disciplinary рroceedings, to address any improprieties that occur. With these differences in mind, we cannot conclude that an order
denying disqualification in the divorce context requires immediate appeal to ensure the protection of a substantial right. Accordingly, although it occurs in a speсial proceeding, such a denial is not a final, appealable order under R.C. 2505.02(B)(2).
Conclusion We hold that in the context of divorce proceedings, the denial of a
motion to disqualify counsel is not a final, appealable order under R.C. 2505.02(B)(2). In so holding, we follow the reasoning of the Ninth District Court of Appeаls concerning such a denial, which does not affect a substantial right in a special proceeding. Therefore, we answer the certified question in the negative and affirm the judgment of the Ninth District Court of Appeals.
Judgment affirmed. P FEIFER , A CTING C.J., and L UNDBERG TRATTON , O’D ONNELL , L ANZINGER , and C UPP , JJ., concur.
O’C ONNOR , C.J., not participating.
__________________
Goldman & Rosen, Ltd., Gary M. Rosen, and Mark A. Riemer, for appellant.
______________________