Stettinius & Hollister LLP, James D. Abrams and David J.
Butler, for appellee.
Hrabcak & Company, L.PA., Michael Hrabcak and Benjamin B.
Nelson, for appellant.
1} Petitioner-appellee, Kenneth's Hair Salons
& Day Spas, Inc., has moved to dismiss this appeal for
lack of a final appealable order. Respondent-appellant, Jane
G. Braun, has filed a memorandum in opposition.
2} Kenneth's began this matter in the trial
court on October 2, 2017 with a Civ.R. 27 petition to
perpetuate testimony. The underlying grievance involves
alleged defamatory comments about Kenneth's posted by
Braun on social media, and the current Civ.R. 27 petition
anticipates an eventual complaint in defamation.
Kenneth's filed on October 13, 2017 a notice of service
stating that the petition was served on Braun on October 10,
2017. The trial court granted the petition on October 24,
2017, without receiving a response from Braun or conducting a
hearing. The trial court's order requires Braun to submit
to a pre-complaint deposition.
3} Braun filed on October 27, 2017 a motion for
reconsideration in the trial court asserting that
Kenneth's Civ.R. 27 petition was defective because it did
not conform with Civ.R. 27(A)(1)(a) by asserting that the
petitioner "may be [a party] to an action or proceeding
cognizable in a court but is presently unable to bring or
defend it." Braun also argued that the trial court had
not complied with Civ.R. 27(A)(2), which prescribes at least
28 days notice of a hearing on the petition, absent a showing
of extraordinary circumstances. Kenneth's filed a
memorandum in opposition to the motion for reconsideration.
4} The trial court did not rule on Braun's
motion for reconsideration because Braun filed a timely
notice of appeal to this court on November 21, 2017, from the
original trial court order of October 24. Kenneth's moved
on November 30, 2017, to dismiss the appeal for lack of a
final appealable order. The matter is now before this court
solely on that issue.
5} Civ.R. 27, allowing for preservation of
deposition testimony, comprises one element of the triad of
pre-suit discovery mechanisms, along with Civ.R. 34(D)
(documents) and R.C. 2317.48 (interrogatories); the newer
civil rules supplement, but do not displace, the older
statute. See generally Williard v. E.W. Bliss Co.,
5th Dist. No. CA-6591 (July 1, 1985). Although there is a
marked split in Ohio case law regarding the appealability of
such orders when issued as pre-suit or preliminary discovery
proceedings, we hold that the present appeal is taken from a
final appealable order and deny the motion to dismiss.
6} Appellate courts in Ohio have jurisdiction only
to review final appealable orders of lower courts within
their districts. K.B. v. Columbus, 10th Dist. No.
14AP-315, 2014-Ohio-4027, ¶ 8; Ohio Constitution,
Article IV, Section 3(B)(2); R.C. 2501.02. If an appeal is
not taken from a final appealable order, this court lacks
jurisdiction and must dismiss the appeal. K.B. at
¶ 8. When determining whether a judgment or order is
final and appealable, the appellate court engages in a
two-step analysis. The court must first determine if the
order is final within the requirements of R.C. 2505.02.
Second, if the order satisfies R.C. 2505.02, the court must
determine whether Civ.R. 54(B) applies and, if so, whether
the order contains a certification that there is no just
reason for delay. Gen. Acc. Ins. Co. v. Ins. Co. of N.
Am., 44 Ohio St.3d 17, 21 (1989).
7} R.C. 2505.02(B) defines a final order as follows:
(B) 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:
(1) An order that affects a substantial right in an action
that in effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a
special proceeding or upon a summary application in an ...