Lancaster v. Mettler

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[Cite as Lancaster v. Mettler, 2019-Ohio-5418.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO LAURIE LANCASTER, et al., Plaintiff-Appellee, : MEMORANDUM OPINION : CASE NO. 2019-T-0075 - vs - : KATHY METTLER, : Defendant-Appellant. : Civil Appeal from the Court of Common Pleas, Case No. 2019 CV 01013. Judgment: Appeal dismissed. Michael R. Babyak, 51 East Park Avenue, Niles, OH 44446 (For Plaintiff-Appellee). Phillip S. Arbie, Suite D, Lower Level, 409 Harmon Avenue, N.W., Warren, OH 44483 (For Defendant-Appellant). MARY JANE TRAPP, J. {¶1} On October 21, 2019, appellant, Kathy Mettler, through counsel, filed the instant appeal. Appellee, Laurie Lancaster, filed an action for breach of contract and fraud against Ms. Mettler. A status conference was held, and on October 1, 2019, the Trumbull County Court of Common Pleas issued a “Pre-Trial Discovery & Motions Schedule.” {¶2} On November 1, 2019, Ms. Lancaster moved this court to dismiss the appeal for lack of a final order. On November 18, 2019, Ms. Mettler opposed the motion. {¶3} Under Section 3(B)(2), Article IV of the Ohio Constitution, a judgment of a trial court can be immediately reviewed by an appellate court only if it constitutes a “final order” in the action. Germ v. Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶ 3. If a lower court’s order is not final, then an appellate court does not have jurisdiction to review the matter, and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20 (1989). For a judgment to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B). {¶4} R.C. 2505.02(B) defines a final order as one of the following: {¶5} “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: {¶6} “(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment; {¶7} “(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment; {¶8} “(3) An order that vacates or sets aside a judgment or grants a new trial; {¶9} “(4) An order that grants or denies a provisional remedy and to which both of the following apply: {¶10} “(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. {¶11} “(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. 2 {¶12} “(5) An order that determines that an action may or may not be maintained as a class action; {¶13} “(6) An order determining the constitutionality of any changes to the Revised Code * * *; {¶14} “(7) An order in an appropriation proceeding * * *.” {¶15} For R.C. 2505.02(B)(2) to apply to the instant matter, the orders under review must be made in a special proceeding, which is defined as “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). This case does not involve a special proceeding in the context of final appealable orders. Thus, R.C. 2505.02(B)(2) does not apply. {¶16} It is clear there is no entry vacating a judgment, granting a provisional remedy, dealing with a class action, determining the constitutionality of Am. Sub. S.B. 281 or Sub. S.B. 80, or dealing with an appropriation proceeding. Therefore, R.C. 2505.02(B)(3)-(7) do not apply. {¶17} For R.C. 2505.02(B)(1) to apply to the appealed entry, it must affect a substantial right, determine the action, and prevent further judgment. In the instant matter, the order involved in this appeal does not fit into this category. Ms. Mettler is appealing a pre-trial discovery and motions’ schedule that was issued by the trial court. {¶18} Initially, we note that, generally, discovery issues are interlocutory in nature and a trial court’s judgment regarding these issues does not constitute a final appealable order. Walters v. Enrichment Ctr. Of Wishing Well, Inc., 78 Ohio St.3d 118, 121 (1997); Enervest Operating, L.L.C. v. Aloi, 11th Dist. Portage No. 2014-P-0021, 2014-Ohio-3447, ¶ 17. However, provisional remedies ordering discovery of alleged privileged material 3 are final and appealable. See Cobb v. Shipman, 11th Dist. Trumbull No. 2011-T-0049, 2012-Ohio-1676 (an order compelling the production of privileged documents to an opposing party constitutes a final appealable order). {¶19} Here, the trial court’s October 1, 2019 entry simply set a pre-trial discovery and motions schedule. There was no order or entry dismissing or terminating the case or an entry of judgment. An interlocutory order is simply not a final appealable order. This appeal has been prematurely filed. Ms. Mettler will have a meaningful and effective remedy by means of an appeal once a final judgment is reached. See Children’s Hosp. Med. Ctr. v. Tomaiko, 11th Dist. Portage No. 2011-P-0103, 2011-Ohio-6838, at ¶ 5. {¶20} Based upon the foregoing, appellee’s motion to dismiss is granted, and this appeal is hereby dismissed for lack of final appealable order. {¶21} Appeal dismissed. THOMAS R. WRIGHT, P.J., MATT LYNCH, J., concur. 4

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