Kennedy v. Chalfin

• Decision Date: 24 April 1974
• Docket Number: No. 73-775,73-775
• Citation: Kennedy v. Chalfin, 38 Ohio St.2d 85, 310 N.E.2d 233, 67 O.O.2d 90 (Ohio 1974)
• Parties: , 67 O.O.2d 90 KENNEDY, Appellee, v. CHALFIN, Appellant.
• Court: Ohio Supreme Court

Page 85

38 Ohio St.2d 85

310 N.E.2d 233, 67 O.O.2d 90

KENNEDY, Appellee, v.CHALFIN, Appellant.

No. 73-775.

Supreme Court of Ohio.

April 24, 1974.

Syllabus by the Court

A trial court's denial of a motion for an order awardinga party reasonable expenses incurred as a result of the other party's failure to attend a depotition is an interlocutory order which is not subject to immediate appellate review but is properly reviewable upon an appeal from the final judgment.

On February 18, 1970, the plaintiff-appellee filed a negligence action against defendant-appellant in the Cleveland Municipal Court.Defendant's answer denied the allegations of negligence.

Shortly after July 1, 1970, the effective date of the Rules of Civil Procedure, plaintiff's attorney commenced to utilize several of the techniques provided therein for securing discovery.For reasons not explained in the record, defendant ignored substantially all of the requests.On August 6, 1971, the trial court ordered defendant to obtain counsel by August 16, or judgment would be rendered for plaintiff.Defedant failed to comply, and on August 24, 1971, the trial court journalized a default

By early 1972defendant had secured

By early 1972defendant had secureed counsel, and on March 7, 1972, the trial court suspended the default judgment and granted plaintiff's motion to compeldefendant to appear for a deposition.Plaintiff, by letter, scheduled a deposition hearing for July 13, 1972, but defendant failed to appear.On August 3, 1972, the trial court vacated its March 7, 1972 order, and thereby reinstated the default judgment against defendant.

On September 29, 1972, defendant filed a motion to vacate the August 3 order.On October 6, 1972, plaintiff moved for an order awarding him reasonable expenses incurred as a result of defendant's failure to appear for her deposition.On November 6, 1972, the trial court granted defendant's motion to vacate the August 3 judgment entry and ordered that the case be scheduled for trial.Plaintiff's motion for expenses was overruled.

Thereafter, plaintiff appealed both aspects of the November 6, 1972, judgment to the Court of Appeals.Defendant's motion to dismiss the appeal, based upon her contentions that neither part of the judgment was a final order, was overruled.The Court of Appeals subsequently affirmed the trial court's vacation of the default judgment, but reversed the trial court's denial of plaintiff's motion for expenses.The trial court was instructed to determine and allow plaintiff to recover from defendant the reasonable expenses, including attorney fees, incurred by plaintiff as a result of defendant's failure to appear for her deposition.

The cause is now before this court pursuant to the allowance of defendant's motion to certify the record.

Spieth, Bell, McCurdy & Newell and Phillip J. Campanello, Cleveland, for appellee.

Mancino, Mancino & Mancino and Paul A. Mancino, Jr., Cleveland, for appellant.

C.WILLIAM O'NEILL, Chief Justice.

Although the record in this case contains a plethora of pleadings, motions, cross-motions and orders, the only aspect of the litigation presently before this court is the reversal by the Court of Appeals of the trial court's denial of plaintiff-appellee's October 6, 1972, motion for expenses.¹The dispositive issue is whether the trial court's order overruling the motion is a final and hence appealable order.This court holds that it is not.²

The definition of a 'final order' is set forth in the first paragraph of R.C. 2505.02:

'An order affecting a substantial right in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial.'

Appellee, urging that this court affirm the judgment of the Court of Appeals, contends that a motion for an order awarding reasonable expenses, under Civ.R. 37(D), which allows a party to recover reasonable expenses incurred as a result of the other party's failure to attend a deposition, is a 'special proceeding' within the meaning of R.C. 2505.02, and that the trial court's granting or denial of a motion to recover such expenses not only affects a substantial right therein but also terminates the proceeding.

Neither the General Assembly nor this court has attempted to define with specificity the identifying characteristics of a 'special proceeding' under R.C. 2505.02.Instead, each case has been decided by reviewing the specific proceeding in question.

In Klein v. Bendix-Westinghouse Co.(1968), 13 Ohio St.2d 85, 86, 234 N.E.2d 587, 589, this court stated:

'The sole question for determination is whether a discovery order of a trial court is subject to immediate appellate review.We hold that it is not.'

Discovery orders have long been considered interlocutory.In re Coastal States Petroleum(1972), 32 Ohio St.2d 81, 290 N.E.2d 844;Klein v. Bendix-Westinghouse Co., supra;Collins v. Yellow Cab Co.(1952), 157 Ohio St. 311, 105 N.E.2d 395.Although none of those cases involved a trial courths granting or denying of a motion for sanctions for a party's failure to comply with discovery requirments, they do stand for the proposition that discovery procedures are not to be considered special proceedings.

In Snell v. Cincinnati Street Ry. Co.(1899), 60 Ohio St. 256, 54 N.E. 270, this court held that an order overruling an application for a change of venue was not an order made in a special proceeding, and, therefore was not immediately appealable.In discussing this issue, at page 272 in the...