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Inc. v. Braun

Court of Appeals of Ohio, Tenth District

January 18, 2018

Kenneth's Hair Salons & Day Spas, Inc., Petitioner-Appellee,
v.
Jane G. Braun, Respondent-Appellant.

         C.P.C. No. 17MS-634

          Taft Stettinius & Hollister LLP, James D. Abrams and David J. Butler, for appellee.

          Hrabcak & Company, L.PA., Michael Hrabcak and Benjamin B. Nelson, for appellant.

          DECISION

          KLATT, J.

         {¶ 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 ...

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