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Bright Future Partners, Inc. v. Proctor & Gamble Distributing, LLC

Court of Appeals of Ohio, First District, Hamilton

June 7, 2017

BRIGHT FUTURE PARTNERS, INC.,
v.
THE PROCTOR & GAMBLE DISTRIBUTING, LLC, Defendant-Appellant. and ANNE CHAMBERS, Plaintiffs-Appellees,

          Hamilton County Court of Common Pleas, TRIAL NO. A-1601857

          Eberly, McMahon, Copetas, LLC, and David A. Eberly, for Plaintiffs-Appellees,

          Faruki, Ireland, & Cox, PLL, and D. Jeffrey Ireland, for Defendant-Appellant.

          OPINION

          Miller, Judge.

         {¶1} Bright Future Partners, Inc., ("Bright Future") and Anne Chambers filed a complaint for discovery against The Proctor & Gamble Distributing, LLC, ("P&G"), citing R.C. 2317.48 and Civ.R. 34(D). The complaint included 15 requests for production of documents from P&G, allegedly necessary because Bright Future and Chambers had "causes of actions against P&G that include, but are not limited to, breaches of contract * * * ." The contract at issue involved the sale of a product line from P&G to Bright Future. Chambers had signed the contract as president of Bright Future, but not in her individual capacity. Chambers nonetheless sued for discovery in her individual capacity as a purported "third party beneficiary" of the contract.

         {¶2} The contract included a dispute resolution clause. It required the parties to first enter into good faith negotiations regarding any dispute arising out of the contract, and, if negotiations failed, to proceed to arbitration. It also required the parties to first negotiate and then arbitrate "any issue as to whether a claim is arbitrable." The dispute resolution provisions stated that the parties were not entitled to any discovery during negotiations and that if the dispute proceeded to arbitration, there would "be no discovery, except as the arbitrator will permit following a determination by the arbitrator that the person seeking such discovery has a substantial, demonstrable need."

         {¶3} P&G moved to dismiss the complaint under Civ.R. 12(B)(6) on the ground that Bright Future and Chambers had failed to plead a claim under either R.C. 2317.48 or Civ.R. 34(D). In the alternative, P&G asked the court to stay the proceedings pending arbitration. The trial court denied P&G's motion, and later issued an order entitled "entry regarding timing of responses to plaintiffs [sic] discovery requests." The entry directed P&G to respond to Bright Future and Chambers's requests for production of documents by June 18, 2016. This appeal followed.

         No Final Order on Merits of the Discovery Action

         {¶4} In its first and second assignments of error, P&G contends, respectively, that the trial court erred when it denied its Civ.R. 12(B)(6) motion to dismiss and also erred when it issued its "entry regarding timing of responses to plaintiffs [sic] discovery requests." Because neither order is a final order, we are without jurisdiction to review these arguments.

         {¶5} This court has "such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * * ." Article IV, Section 3(B)(2), Ohio Constitution. A final order is one that meets the requirements of R.C. 2505.02, and, if applicable, Civ.R. 54(B). Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus. If Bright Future and Chambers's cause of action is a "special proceeding, " then R.C. 2505.02(B)(2) applies. RC. 2505.02(B)(1) applies if it is not. A special 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." RC. 2505.02(A)(2).

         {¶6} To determine what division of RC. 2505.02 to apply, we must examine "the actual nature or subject matter" of Bright Future and Chambers's complaint, and not merely the form in which the action is pleaded. See Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465 N.E.2d 1289 (1984). Bright Future and Chambers cited RC. 2317.48 and Civ.R. 34(D) in their complaint. Both allow for an action for prelitigation discovery. However, it is well-settled that an action for discovery under RC. 2317.48 "is limited solely to interrogatories specifically concerning the facts necessary to the complaint or answer and are to be submitted only to the potentially adverse party to the contemplated lawsuit." Poulos v. Parker Sweeper Co., 44 Ohio St.3d 124, 541 N.E.2d 1031 (1989), syllabus.[1] In contrast, Civ.R. 34(D) allows, among other things, a party to request the production of documents.

         {¶7} Here, Bright Future and Chambers sought only the production of documents from P&G, which is permissible under Civ.R. 34(D) but not under R.C. 2317.48. We therefore find, without passing on the propriety of Bright Future and Chambers's requests under Civ.R. 34(D), that the complaint at issue is one seeking discovery under Civ.R. 34(D) only.

         {¶8} Having determined the actual nature and subject matter of Bright Future and Chambers's complaint, we turn to our RC. 2505.02 analysis. Because Civ.R. 34(D) is not a statute, this appeal is not taken from a "special proceeding." See RC. 2505.02(A)(2). Thus, RC. 2505.02(B)(1) applies in this case.

         {¶9} RC. 2505.02(B)(1) states that an order is a final order if it "affects a substantial right in an action that in effect determines the action and prevents a judgment." P&G's motion to dismiss tested the sufficiency of the complaint; it did not determine the action and prevent a judgment in P&G's favor. It was not a final order. See Polikoff v. Adam,67 Ohio St.3d 100, 103, 616 N.E.2d 213 (1993) (holding that the denial of a motion to dismiss is generally not a final order). We therefore ...


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