In re: Special Grand Jury Investigation of Medicaid Fraud and Nursing Homes,
Yost, Attorney General, and Anthony J. Molnar, for appellee.
Webster & Associates Co., LPA, Geoffrey E. Webster, and
Conrad Dillon, for appellants.
1} This appeal arises from grand jury proceedings
before the Franklin County Court of Common Pleas. The
appellants are a rehabilitation and nursing center and its
parent organization. The appellee is the state of Ohio,
represented by the state attorney general. Appellants seek
relief from an order of the trial court compelling production
of documents and rejecting appellants' contention that
the subpoenaed materials are protected from discovery under
the attorney work-product doctrine.
2} The controversy began when appellee issued a
subpoena requesting certain internal investigation documents
related to a self-reported incident report submitted to the
Ohio Department of Health by appellants' nursing
facility. Appellants refused to produce certain documents
that they considered to be attorney work-product. On May 12,
2017, the trial court determined that the documents did not
qualify for the work-product privilege, and ordered
production to appellee under penalty of contempt. An initial
appeal to this court ensued. In In re Special Grand Jury
Investigation, 10th Dist. No. 17AP-446, 2018-Ohio-760,
hereinafter "Grand Jury I, " this court
sua sponte raised the issue of jurisdiction and dismissed the
appeal. We held that while an order compelling discovery of
allegedly privileged or protected information may constitute
a final appealable order under R.C. 2505.02, appellants had
not affirmatively established that an immediate appeal was
necessary to afford a meaningful and effective remedy.
Id. at ¶ 11, citing Nami v. Nami, 10th
Dist. No. 17AP-265, 2017-Ohio-8330, ¶ 19.
3} After remand from our March 1, 2018 decision in
Grand Jury I, the court of common pleas, on August
2, 2018, entered an order lifting the stay imposed pending
appeal and ordered appellants to produce all responsive
information for the subpoenas at issue. This order also
scheduled a show-cause hearing for August 27, 2018, to
determine whether to hold appellants in contempt and impose
sanctions for failure to comply with the state's
subpoena. After the show-cause hearing, the court of common
pleas entered an order on August 29, 2018 ordering appellants
to provide certain documents directly to the state, and other
documents for submission to the court for in camera
4} The court then conducted its in camera inspection
and on September 21, 2018 ordered all the documents to be
produced in their entirety on or before October 1, 2018. On
September 25, 2018, appellants filed their appeal with this
court. On the same date, appellants filed a motion in the
court of common pleas to stay the court's September 21,
2018 entry pending appeal. On October 16, 2018, the trial
court entered an order denying the stay pending appeal based
on the outcome of the prior appeal. The court formally found
appellants in contempt for failure to produce the subpoenaed
documents as described in prior orders of the court and
deferred sanctions or purge of the contempt finding pending
the outcome of the present appeal.
5} On November 1, 2018, this court by journal entry
granted the parties' joint motion to limit transmission
of the record in this appeal to documents relevant to the
appeal and to supplement the record with additional
6} The state filed its motion to dismiss this appeal
for lack of a final appealable order on December 31, 2018.
Appellants filed their memorandum in opposition to dismissal
on January 10, 2019, further seeking an award of attorney
fees on the basis that the motion to dismiss is frivolous.
The state filed its reply memorandum on January 16, 2019.
7} The state argues that the current appeal is
repetitive and should be dismissed for the same reasons given
in our dismissal of the first appeal. Appellants argue to the
contrary that the appeal is not duplicative because, unlike
the first appeal, appellants have now raised the argument
that an immediate appeal satisfies R.C. 2505.02(B) because
appellants would not be afforded a meaningful and effective
remedy by an appeal after conclusion of litigation before the
court of common pleas, including potential criminal
proceedings. Once appellants are forced to disclose the
documents allegedly subject to attorney-work product
protection, there would be no way to "unring the
bell" and preclude use of that information by the state
in subsequent trial court proceedings; moreover, although no
sanction has yet been imposed by the trial court for
contempt, the remedy for the contempt sanctions might not be
available in a subsequent appeal after final judgment.
8} Our jurisdiction on appeal is limited to the
review of final appealable orders, judgments, or decrees, and
if an appeal is not taken from a final appealable order, we
have no jurisdiction to review the matter and must dismiss
it. State ex rel. Ohio Academy of Nursing Homes, Inc. v.
Ohio Dept. of Medicaid, 1oth Dist. No. 16AP-102,
2016-Ohio-1516, ¶ 4-5, citing State ex rel. Bd. of
State Teachers Retirement Sys. of Ohio v. Davis, 113
Ohio St.3d 410, 2007-Ohio-2205, ¶ 44.
9} The pertinent provisions of R.C. 2505.02provide
that an order is final and appealable where it grants or
denies a provisional remedy, in effect determines the action
with respect to that remedy and prevents a judgment in the
action in favor of the appealing party, and the appealing
party would not be afforded a meaningful or effective remedy
by appeal following final judgment. R.C. 2505.02(B)(4)(a) and
10} We first address appellants' argument that
the trial court's order is final and appealable because
it found appellants in contempt for failure to furnish the
subpoenaed documents. We note that the trial court has
deferred imposition of any sanction arising from the contempt
finding. The contempt issue is therefore not ripe for appeal.
"In Ohio, the general rule for contempt proceedings is
that a judgment of contempt becomes a final appealable order
only when there is both a finding of ...