Court of Appeals of Ohio, First District, Hamilton
TERRY A. HARRELL, Plaintiff-Appellee,
MANAGEMENT AND TRAINING CORP., MTC JOB CORPS, and SARAH D. MORRISON, ADMINISTRATOR, OHIO BUREAU OF WORKERS' COMPENSATION, Defendants-Appellants.
From: Hamilton County, TRIAL NO. A-1606862, Court of Common
M. Clark, for Plaintiff-Appellee.
Yost, Ohio Attorney General, and Barbara L. Barber, Principal
Assistant Attorney General, for Defendants-Appellants.
Most discovery orders fail to satisfy the standard for a
final appealable order that would punch the aggrieved
party's ticket for an immediate appeal. And this makes
sense-if every twist and turn during the course of discovery
could trigger immediate appellate review, litigation would
never come to an end. The case before us concerns an award of
costs issued in connection with a motion to compel discovery,
and defendant the Administrator of the Ohio Bureau of
Workers' Compensation ("the Administrator")
insists that she has found the path that leads to
interlocutory review. We, however, are unpersuaded, and we
dismiss this appeal for lack of appellate jurisdiction.
The instant case involves a workers' compensation appeal
filed (pursuant to R.C. 4123.512) in the court of common
pleas after the Industrial Commission of Ohio denied
plaintiff Terry Harrell's application to include an
additional condition of cervical disc bulge to her
already-existing workers' compensation claim. This appeal
does not concern the merits of Ms. Harrell's denied
application (which remains pending before the trial court),
but instead implicates the trial court's order granting
Ms. Harrell's motion to assess costs against the
Administrator. Earlier in the litigation, the trial court
granted in part and denied in part a motion to compel
discovery of Ms. Harrell's medical history. About a year
later, consistent with Civ.R. 37, Ms. Harrell sought the
reasonable expenses stemming from this partially granted
motion to compel, asking the court to assess costs to the
Administrator. In support of the motion, Ms. Harrell alleged
that the Administrator's litigation conduct (including
various unnecessary filings) drove the discovery expenses up.
In response to Ms. Harrell's motion, and pursuant to
Civ.R. 37(A)(5)(c), the trial court assessed costs to the
Administrator in the amount of $504. On appeal, the
Administrator exclusively challenges the trial court's
entry granting Ms. Harrell's motion to assess costs. But
before we delve into the merits of that argument, we must
start with our jurisdiction.
Appellate courts do not typically have jurisdiction over
interlocutory orders, but only "final orders," and
R.C. 2505.02(B) serves as our guide in this inquiry. With
limited exceptions (such as privilege-related issues), orders
addressing ordinary discovery disputes tend to be merely
interlocutory and not immediately appealable. Walters v.
Enrichment Ctr. of Wishing Well Inc., 78 Ohio St.3d 118,
123, 676 N.E.2d 890 (1997) (holding the denial of an asserted
statutory privilege of confidentiality was not entered in a
special proceeding, and thus was "an interlocutory
discovery order and is neither final nor appealable.");
Summitbridge Natl. Invests., L.L.C. v. Ameritek Custom
Homes, Inc., 1st Dist. Hamilton No. C-120476,
2013-Ohio-760, ¶ 6 ("Generally, discovery orders
are neither final nor appealable. But a proceeding concerning
the discovery of privileged material is one type of
provisional remedy contemplated by R.C.
2505.02(A)(3)."). To determine whether an order is
sufficiently final to warrant immediate review, R.C.
2505.02(B) requires that the order fit into one of the
categories outlined in (B)(1) through (7). Duly cognizant of
the jurisdictional obstacles, the Administrator seeks to
fashion a final order here by pointing to R.C. 2505.02(B)(1),
(2) and (4). We address these in turn.
To fall within the first option, R.C. 2505.02(B)(1), the
order must "affect a substantial right in an action
that in effect determines the action and prevents a
judgment[.]" The statute then defines "substantial
right" as "a right that the United States
Constitution, the Ohio Constitution, a statute, the common
law, or a rule of procedure entitles a person to enforce or
protect." R.C. 2505.02(A)(1). In an overbroad attempt to
fit the trial court's entry within this first option, the
Administrator argues that R.C. 4123.512 (which grants a right
to appeal for claimants and employers to the common pleas
court) provides her with a right and duty to protect the
workers' compensation fund, and the trial court's
entry affected this substantial right by requiring the
Administrator to pay Ms. Harrell's court costs.
Yet, if we were to accept this argument it would surely
swallow the rule, resulting in nearly every order granted or
denied by a trial court during the journey of a R.C. 4123.512
appeal to automatically constitute a final appealable order.
We have never endorsed such a notion. In Brown v.
Mabe, 170 Ohio App.3d 13, 2007-Ohio-90, 865 N.E.2d 934,
¶ 6 (1st Dist.), subsequent to an administrative finding
and an appeal to the common pleas court, we held that the
trial court's decision to grant the employer's motion
in limine in a workers' compensation case was not,
standing alone, a final appealable order. The Fifth District
similarly held that, despite four workers' compensation
claimants exercising their right to appeal to the common
pleas court under R.C. 4123.512, the trial court's entry
denying the employer's motion to dismiss did not
constitute a final appealable order because it "[did]
not prevent a judgment or otherwise determine the
action." Patterson v. The Ford Motor Co., 5th
Dist. Stark No. 2002CA00345, 2003-Ohio-645, ¶ 13. In
other words, workers' compensation proceedings do not
benefit from special rules of finality under R.C.
Likewise, the court's decision to grant costs in the
amount of roughly $500 does not prevent a judgment in favor
of the Administrator or otherwise determine the underlying
action filed pursuant to R.C. 4123.512. While the
Administrator believes that R.C. 4123.512(F) precludes the
award of costs here, that reflects a misunderstanding of that
statute, which simply directs an award of costs against the
commission "in the event the claimant's right to
participate or to continue to participate in the fund is
established * * * ." It does not purport to invalidate
the applicable provisions of the Civil Rules. The trial court
did not award costs under R.C. 4123.512(F) but rather under
Civ.R. 37. When the trial court proceeding draws to a close,
if the Administrator remains aggrieved by this discovery
order and final judgment has been entered, then she can
appeal. See Stratman v. Sutantio, 10th Dist.
Franklin No. 05AP-1260, 2006-Ohio-4712, ¶ 32 (reversing
the trial court's order granting costs associated with a
motion to compel because "the trial court was without
authority to award appellee the costs of preparing the motion
to compel."); Early v. The Toledo Blade, 130
Ohio App.3d 302, 313, 720 N.E.2d 107 (6th Dist.1998), citing
Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254,
662 N.E.2d 1 (1996), paragraph one of the syllabus ("The
Supreme Court of Ohio has ruled that an appellate court can
reverse a discovery sanction only if the trial court abused
its discretion when it imposed the sanction.").
Therefore, the relevant order does not satisfy the
requirements for R.C. 2505.02(B)(1).
Turning to R.C. 2505.02(B)(2), to satisfy this category of
final appealable orders, the order must "affect a
substantial right made in a special proceeding * * *
[.]" This requires us to undertake a two-step analysis:
"(1) [w]as the trial court's order entered in a
special proceeding, and if so, (2) did it affect a
substantial right." Konold v. R.W. Sturge,
Ltd., 108 Ohio App.3d 309, 311, 670 N.E.2d 574 (1st
Dist.1996). The first step in this inquiry is met because
workers' compensation appeals qualify as a "special
proceeding." See Anderson v. Sonoco Prod. Co.,
112 Ohio App.3d 305, 308, 678 N.E.2d 631 (2d Dist.1996)
(finding that because workers' compensation appeals were
not known to the common law or in equity, a workers'
compensation appeal is a "special proceeding"). But
the Administrator's claim falters on the second step,
largely for the reasons set forth above. To reiterate, a
"substantial right" is a right that the federal or
Ohio Constitution, a statute, the common law, or a rule of
procedure entitles a person to enforce or protect. R.C.
2505.02(A)(1). And an "order affects a substantial right
if, in the absence of an immediate appeal, it forecloses
appropriate relief in the future." William Powell
Co. v. OneBeacon Ins. Co., 1st Dist. Hamilton No.
C-130681, 2014-Ohio-3528, ¶ 9, citing Bell v. Mt.
Sinai Med. Ctr., 67 Ohio St.3d 60, 616 N.E.2d 181
(1993); Konold at 311.
Yet again, we must reject the Administrator's expansive
argument that R.C. 4123.512 provides her with a
"substantial right" to protect the workers'
compensation fund. Moreover, the Administrator's
opportunity to seek appropriate relief is far from
foreclosed, since the Administrator may always appeal the
issue of costs after the final judgment is entered concerning
Ms. Harrell's underlying claim.
And similarly, the court's entry does not fall within
R.C. 2505.02(B)(4) because the entry did not deny a
provisional remedy (Civ.R. 37(A)(5)(c) payment of expenses)
that in effect determined the action and prevented a judgment
in favor of the Administrator with respect to the provisional
remedy. R.C. 2505.02(B)(4)(a). If we start denominating
discovery orders as "provisional remedies," then