Walters v. Enrichment Center of Wishing Well, Inc.

• Decision Date: 02 April 1997
• Docket Number: No. 96-1429,96-1429
• Citation: 78 Ohio St.3d 118,676 N.E.2d 890
• Parties: WALTERS et al., Appellants, v. THE ENRICHMENT CENTER OF WISHING WELL, INC. et al., Appellees.
• Court: Ohio Supreme Court

Page 118

78 Ohio St.3d 118

676 N.E.2d 890

WALTERS et al., Appellants, v. THE ENRICHMENT CENTER OF WISHING WELL, INC. et al., Appellees.

No. 96-1429.

Supreme Court of Ohio.

Submitted Jan. 8, 1997.

Decided April 2, 1997.

The denial of an asserted statutory privilege of confidentiality is not a special proceeding for purposes of R.C. 2505.02, but is an interlocutory discovery order and is neither final nor appealable. (Polikoff v. Adam [1993], 67 Ohio St.3d 100, 616 N.E.2d 213, syllabus, and State ex rel. Steckman v. Jackson [1994], 70 Ohio St.3d 420, 639 N.E.2d 83, paragraph seven of the syllabus, applied and followed.)

This case commenced when plaintiffs-appellants, Robert L. Walters, Jr., and Dawn A. Walters, filed a complaint in Cuyahoga County Common Pleas Court alleging, inter alia, that defendants-appellees, The Enrichment Center of Wishing Well, Inc. (a day-care center) and its owner/director, Janice A. Carlisle, had made a bad faith report of child abuse, involving the suspected abuse by Robert L. Walters, Jr. of the couple's minor son. Appellants asserted in their complaint that on August 19, 1994, Carlisle and perhaps others filed a report of suspected child abuse with the Medina County Department of Human Services, Social Services Section. Appellants claimed appellees filed the child-abuse report in retaliation for appellants' act of filing a complaint with the North Royalton Police Department accusing the day-care center of leaving the children in its care unattended. Appellants asserted that, after an investigation, the Department of Human Services found the filed report of suspected child abuse to be unsubstantiated. In their complaint, appellants sought compensatory and punitive damages.

Appellants served appellees with discovery requests, including requests seeking documents. Appellees moved for a protective order as to some of the documents, citing several reasons why the various documents should not be discoverable. Specifically relevant to our consideration are the following two of appellants' requests:

"[4.] Copies of any correspondence between The Enrichment Center and any social service agency or other investigatory agency, including police departments, which pertain to any allegation of abuse by plaintiff Robert L. Walters, Jr.

"[5.] Copies of any document which pertains to any allegation of abuse by plaintiff Robert L. Walters, Jr."

Appellees argued that these two requests pertained to reports of child abuse made pursuant to R.C. 2151.421, and that the statute makes the contents of any documents confidential and not subject to discovery. The trial court conducted an in camera review of some of the requested documents, and granted the motion for protective order in part and denied it in part. In particular, the trial court denied the motion for protective order as to the documents covered by appellants' requests four and five, and ordered appellees to produce those documents.

Appellees appealed the trial court's denial of their motion for protective order as to requests four and five to the Court of Appeals for Cuyahoga County. Appellants moved to dismiss the appeal, arguing that it was interlocutory and was not taken from a final appealable order. The court of appeals determined that the trial court's order was a final appealable order and therefore determined that it had jurisdiction to review the appeal on the merits. The court of appeals determined further that the trial court should have granted the motion for protective order as to document requests four and five, and reversed the ruling of the trial court.

Appellants moved the court of appeals to certify a conflict to this court on the issue of whether the order appealed from was a final appealable order, urging that the judgment of the court of appeals on that issue was in conflict with the judgment of the Court of Appeals for Franklin County in Turner v. Romans (June 30, 1995), Franklin App. No. 95APE05-528, unreported, 1995 WL 390933, and the judgment of the Court of Appeals for Montgomery County in Kelly v. Daly (1995), 99 Ohio App.3d 670, 651 N.E.2d 513.

The court of appeals granted appellants' motion to certify a conflict on the issue of the appealability of the trial court order. This cause is now before this court upon our determination that a conflict exists. ¹

Barbara Quinn Smith, Willowick, for appellants.

Gallagher, Sharp, Fulton & Norman, Thomas E. Dover and Donald M. Desseyn, Cleveland; Ulmer & Berne and Craig A. Marvinney, Cleveland, for appellees.

ALICE ROBIE RESNICK, Justice.

The question certified for our review is "whether the denial of an asserted statutory privilege of confidentiality is a special proceeding for purposes of R.C. 2505.02 and therefore a final appealable order." For the reasons which follow, we answer the certified question in the negative. Since we find that the court of appeals was without jurisdiction to entertain the appeal, we vacate the judgment of the court of appeals and dismiss the appeal.

Section 3(B)(2), Article IV of the Ohio Constitution limits appellate jurisdiction to review of judgments and final orders by providing:

"Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district and shall have such appellate jurisdiction as may be provided by law to review and affirm, modify, or reverse final orders or actions of administrative officers or agencies."

R.C. 2505.02, as relevant to this case, provides that "an order that affects a substantial right made in a special proceeding * * * is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial."

The parties appear to agree that the trial court order appealed from in this case affects a substantial right. However, to be a final appealable order, the order appealed from must first be made in a special proceeding. See Polikoff v. Adam (1993), 67 Ohio St.3d 100, 108, 616 N.E.2d 213, 218, fn. 8. Thus, as to the certified issue, resolution of this case turns on the special-proceeding prong of R.C. 2505.02.

In Polikoff, we held at the syllabus that "[o]rders that are entered in actions that were recognized at common law or in equity and were not specially created by statute are not orders entered in special proceedings pursuant to R.C. 2505.02. (Amato v. Gen. Motors Corp. [1981], 67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452, overruled.)"

In State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 438, 639 N.E.2d 83, 96, this court conducted the following analysis:

"Rulings by a trial court on demands for discovery (whether granting or denying the demand) are not orders which are final and appealable. See State v Lambert [(1994)], supra, 69 Ohio St.3d 356, 632 N.E.2d 511, and Horton v. Addy (1994), 69 Ohio St.3d 181, 631 N.E.2d 123.

"Discovery orders have long been considered interlocutory. In Klein v. Bendix-Westinghouse [Automotive Air Brake] Co. (1968), 13 Ohio St.2d 85, 86, 42 O.O.2d 283, 284, 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.' (Emphasis added.) In Kennedy v. Chalfin (1974), 38 Ohio St.2d 85, 89, 67 O.O.2d 90, 92, 310 N.E.2d 233, 235, we stated: 'discovery techniques are pretrial procedures used as an adjunct to * * * a pending lawsuit. They are designed to aid in the final disposition of the litigation, and are, therefore, to be considered as an integral part of the action in which they are utilized. They are not "special proceedings," as that phrase is used in R.C. 2505.02.' See, also, In re Coastal States Petroleum (1972), 32 Ohio St.2d 81, 61 O.O.2d 333, 290 N.E.2d 844; Collins v. Yellow Cab Co. (1952), 157 Ohio St. 311, 47 O.O. 186, 105 N.E.2d 395; and State v. Smith (1939), 135 Ohio St. 292, 14 O.O. 149, 20 N.E.2d 718.

"We deviated from this well-established and workable rule in Humphry v. Riverside Methodist Hosp. (1986), 22 Ohio St.3d 94, 22 OBR 129, 488 N.E.2d 877, and State v. Port Clinton Fisheries, Inc. (1984), 12 Ohio St.3d 114, 12 OBR 157, 465 N.E.2d 865. This deviation has caused this court and courts of appeals * * * much difficulty. By overruling Amato v. Gen. Motors Corp. (1981), 67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452, in Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213, we implicitly overruled Humphry and Port Clinton Fisheries. We now do so explicitly."

The Steckman analysis culminated in paragraph seven of the syllabus:

"Discovery orders are interlocutory and, as such, are neither final nor appealable."

The court of appeals below relied on two appellate decisions, Niemann v. Cooley (1994), 93 Ohio App.3d 81, 637 N.E.2d 943, and Arnold v. Am. Natl. Red Cross (1994), 93 Ohio App.3d 564, 639 N.E.2d 484, both of which have misinterpreted this court's decision in Polikoff. Since there appears to be much confusion among appellate courts as to precisely what was meant in the Polikoff syllabus, we will proceed to clarify that syllabus paragraph. The determining factor of Polikoff is whether the "action" was recognized at common law or in equity and not whether the "order" was so recognized. In making the determination courts need look only at the underlying action. The type of order being considered is immaterial. To focus on the nature of the order itself is to return to the balancing test of Amato. Such an approach is irreconcilable with Polikoff and more precisely with the above-quoted excerpt from Steckman. Under Polikoff, it is the underlying action that must be examined to determine whether an order was entered in a special proceeding. In the case sub judice, the...