Court of Appeals of Ohio, First District, Hamilton
Hamilton County Court of Common Pleas, TRIAL NO. A-1601857
Eberly, McMahon, Copetas, LLC, and David A. Eberly, for
Faruki, Ireland, & Cox, PLL, and D. Jeffrey Ireland, for
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
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."
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
Final Order on Merits of the Discovery Action
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
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.
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. In contrast,
Civ.R. 34(D) allows, among other things, a party to request
the production of documents.
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.
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.
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 ...