Smalley v. Friedman, Domiano & Smith Co., L.P.A., 2004 Ohio 2351 (OH 5/6/2004)

• Decision Date: 06 May 2004
• Docket Number: Case No. 83636.
• Citation: 2004 Ohio 2351
• Court: Ohio Supreme Court
• Parties: Timothy Ray Smalley, Plaintiff-appellant, v. Friedman, Domiano & Smith Co., L.P.A., Defendant-appellee.

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2004 Ohio 2351

Timothy Ray Smalley, Plaintiff-appellant, v. Friedman, Domiano & Smith Co., L.P.A., Defendant-appellee.

Case No. 83636.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Date of Announcement of Decision: May 6, 2004.

Civil appeal from the Court of Common Pleas, Case No. CV-473498.

Affirmed.

Eric Thompson, Esq., William J. Novak, Esq., Thomas D. Robenalt, Esq., Denise J. Salerno, Esq., Novak, Robenalt, Pavlik, & Scharf, L.L.P., 270 Skylight Office Tower, 1660 West Second Street, Cleveland, Ohio 44113, for Plaintiff-Appellant.

Daniel R. Haude, Esq., Reminger & Reminger Co., 1400 Midland Building, 101 Prospect Ave., West, Cleveland, Ohio 44115-1093, for Defendant-Appellee.

Daniel R. Haude, Esq., Reminger & Reminger Co., 1400 Midland Building, 101 Prospect Ave. West, Clevel;and, Ohio 44115, Adam H. Gimbel, Esq., Timothy D. Johnson, Esq., Weston, Hurd, Fallon, Paisley & Howley, 2500 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113-2241, for Defendant-Appellee.

ACCELERATED JOURNAL ENTRY AND OPINION

ANN DYKE, Presiding Judge.

{¶1} This interlocutory appeal arises from plaintiff Timothy Ray Smalley's action against defendants Friedman, Domiano, & Smith L.P.A., Jeffrey H. Friedman, Perry R. Silverman Co., L.P.A., Perry R. Silverman, and two John Doe defendants (collectively referred to as "defendants") for legal malpractice. Plaintiff challenges the order of the trial court which denied his motion for a protective order, ordered him to comply with all outstanding discovery requests filed by defendants, and ordered him to produce the files of his former attorneys. For the reasons set forth below, we affirm.

{¶2} In 1996, plaintiff, a former carman for the Norfolk and Western Railway Company ("N & W"), filed a complaint against N & W in the Franklin County Court of Common Pleas under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. Sec. 51, alleging that he was injured in the course of his employment when a chemical solvent splashed on him, and that he was regularly and continuously exposed to a variety of toxic chemicals.

{¶3} In the course of that litigation, plaintiff and N & W stipulated as follows:

{¶4} "Plaintiff contends that he sustained a psychological injury as a result of his alleged exposure to Safety-Kleen during the course of his employment at Norfolk & Western Railway Company. All claims asserting that Plaintiff sustained actual physical injury as a result of exposure to Safety-Kleen or other chemicals during the course of his employment at Norfolk & Western Railway Company are hereby withdrawn."

{¶5} N & W moved for summary judgment and argued that it was not liable to plaintiff because he could not demonstrate he was placed within the "zone of danger" as required for FELA claims for negligent infliction of emotional distress. The trial court granted N & W's motion, but the Franklin County Court of Appeals reversed and remanded the matter concluding that plaintiff had raised a genuine issue of material fact as to whether or not he was within the zone of danger. See Smalley v. Norfolk & Western Ry. (Sep. 2, 1999) Franklin App. No. 99AP-147.

{¶6} Thereafter, on June 19, 2002, plaintiff filed the instant action for legal malpractice against defendants and alleged that "a law firm, Cole & Lewis, was asked by the plaintiff to take over representation in that suit and found defendants, Jeffrey H. Friedman, and defendant, Friedman, Domiano & Smith Co., L.P.A., and * * * advised plaintiff on or about November 13, 2000 they would review the facts and they would take the case granted they were provided more time by the trial judge in Case No. 96 CVC 096750, which was then set for trial on or about January 23, 2001. * * * [D]efendants jointly, independently and concurrently provided the plaintiff with a dismissal entry advising the plaintiff that plaintiff should dismiss the above-captioned case * * * , without prejudice, * * * and that plaintiff would have a right to refile that claim within one year, that is, by January 5, 2002, and thereafter, on or about June 21, 2001, defendants Jeffrey H. Friedman and Friedman Domiano & Smith Co., L.P.A, stated that on their behalf and on behalf of defendant Perry R. Silverman, that they were unwilling to refile or pursue the case * * *."

{¶7} Plaintiff further alleged that, after the FELA limitations period expired, he learned that such actions are not subject to the savings statute,¹ and that due to the negligence of defendants, he lost his right to seek redress for his FELA claim.

{¶8} Defendants denied liability. Thereafter, on August 14, 2003, defendants filed a subpoena seeking Cole & Lewis's "records of your firms's representation of Timothy R. Smalley." Defendants also sought plaintiff's medical records and planned to depose plaintiff's treating physicians. Plaintiff filed a motion for a protective order and asserted that Cole & Lewis's records were protected by the attorney-client privilege, and filed a separate motion for a protective order to bar discovery of all witnesses and documents pertaining to the underlying FELA case. In response, defendants filed a motion to compel discovery. On October 9, 2003, the trial court denied plaintiff's motions for protective orders, ordered plaintiff to comply with all outstanding discovery requests filed by defendants, granted defendants' motion to compel discovery, and ordered plaintiff to produce discovery of any and all witnesses and documents associated with the underlying FELA case. Plaintiff now appeals and assigns two errors for our review. Defendant contends that we are without jurisdiction over this matter because the trial court's order was not final and appealable.

{¶9} R.C. 2505.02, defines final appealable orders in pertinent part as follows:

{¶10} "An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment * * * is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial."

{¶11} In State v. Muncie, 91 Ohio St.3d 440, 446, 2001-Ohio-93, 746 N.E.2d 1092, the Supreme Court set forth the following test for determining when an order is final:

{¶12} "* * * an order is a 'final order' if it satisfies each part of a three-part test: (1) the order must either grant or deny relief sought in a certain type of proceeding — a proceeding that the General Assembly calls a 'provisional remedy,' (2) the order must both determine the action with respect to the provisional remedy and prevent a judgment in favor of the appealing party with respect to the provisional remedy, and (3) the reviewing court must decide that the party appealing from the order would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action. See, also, R.C. 2505.02(A)(3) (defining 'provisional remedy')."

{¶13} A provisional remedy is a remedy other than a claim for relief. State ex rel. Butler County Children Servs. Bd. v. Sage, 95 Ohio St.3d 23, 2002-Ohio-1494, 764 N.E.2d 1027. As used in R.C. 2505.02, a "provisional remedy" is defined as "a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, or suppression of evidence."

{¶14} In this instance, the challenged order grants a provisional remedy, as the discovery of privileged matter is expressly listed as a provisional remedy under R.C. 2505.02.

{¶15} In addition, the order determined the action with respect to the provisional remedy and prevented a judgment with respect to plaintiff as to that remedy. Moreover, we hold that if plaintiff were required to wait until there is a final judgment as to all proceedings, issues, claims and parties before obtaining review of the order, he would be denied a meaningful or effective remedy. As stated in Schottenstein, Zox & Dunn v. McKibben, Franklin App. No. 01AP-1384, 2002-Ohio-5075:

{¶16} "Once the client file is revealed, the bell will have rung, and, if in fact the file contains sensitive material, McKibben would have no adequate remedy on appeal."

{¶17} We therefore hold that the trial court's order which denied the protective orders and compelled discovery does in fact constitute a final appealable order. Accord State ex rel. Butler County Children Servs. Bd. v. Sage, supra (entry that granted the provisional remedy ordering the discovery of the allegedly privileged record was final and appealable order); Abbuhl v. Orange Village, Cuyahoga App. No. 82203, 2003-Ohio-4662 (the trial court's order requiring plaintiff to produce for defendants all of his "individualized billings" was a final appealable order.); Nester v. Lima Memorial Hosp., 139 Ohio App.3d 883, 885-886, 2000-Ohio-1916, 745 N.E.2d 1153 (trial court's order granting defendant's motion to compel and ordering disclosure of plaintiff's complete medical history was a final appealable order.).

{¶18} Plaintiff's first assignment of error states:

{¶19} "The trial court erred by denying Plaintiff's Appellant's (sic) Motion for a Protective Order and ordering that Plaintiff Appellant produce all outstanding discovery requests with regard to the files kept by Mr. Smalley's former Attorney, Richard Lewis."

{¶20} Within this assignment of error, plaintiff insists that the records of his previous counsel should not be disclosed because they are protected by the attorney-client privilege.

{¶21} We note that this court reviews an order granting or denying a motion for a protective order for an abuse of discretion, and such order will not be reversed absent an abuse of that discretion. Ruwe v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio St.3d 59, 61, 441, 505 N.E.2d 957; Cargotec, Inc. v. Westchester Fire Ins. Co., 155 Ohio...