Appellate Practice Pointers: Do You Have a Final Appealable Order?

Was it over when the Germans bombed Pearl Harbor? Has the fat lady sung? A landmine that ruins a surprising number of appeals is the final order doctrine. Whether an order is final and appealable is governed by R.C. 2505.02, and most of the time, it is pretty easy to determine whether a trial court's order is a final appealable order. But here are some recent cases that show that there can be surprises lurking in every appeal.

1. Wiggins v. Safeco Ins. -- 2021-Ohio-3526 (2nd Dist.)

(a) Trial court granted summary judgment on some but not all of the claims. It did not include Rule 54(B) language

(b) The court of appeals held that there was no appellate jurisdiction: "Rule 54(B) makes mandatory the use of the language, 'there is no just reason for delay.' Unless those words appear where multiple claims and/ or multiple parties exist, the order is subject to modification and it cannot be either final or appealable."

(c) The most interesting aspect of the case is its discussion of mootness, which is a little-know exception to the requirement that an order is not appealable unless it resolves all the claims in a case. As an example, claims for breach of contract and for unjust enrichment are usually mutually exclusive. A trial court order that granted judgment for the plaintiff on a breach of contract action, but did not address the plaintiff's unjust enrichment claim, would be final and appealable since granting judgment on the breach of contract claim to the plaintiff rendered the unjust enrichment claim moot. The court mentioned that the same could be true for claims for subrogation, indemnification, or contribution.

2. Tassone v. Tassone -- 2021-Ohio-4063 (10th Dist.)

(a) In divorce proceeding where both parents sought child custody, the trial court ordered both parties to undergo psychological testing

(b) One of the parties appealed. The issue was whether the trial court's order affected a substantial right under R.C. 2505.02(B)(2). The court of appeals held that the trial court's order arguably invades a right to privacy. However, the court concluded that any such right was abrogated by the statute in child custody cases that authorizes psychological testing, so the testing did not affect a substantial right and was not appealable. The court thus decided the merits of the case – whether the parent had a right to be free of psychological testing – in deciding that there was not a final appealable order.

(c) The parent also argued that the trial court's order was a provisional remedy under R.C. 2505.02(B)(4). The court held that it was bound by a decision of the Supreme Court in Myers v. Toledo, 110 Ohio St.3d 218, which held that an order requiring a psychological test is not a provisional remedy. The Myers Court reasoned that a psychological test was a discovery tool and the statute defines "discovery of privileged matter" as a provisional remedy. Since psychological testing was not defined as a provisional remedy, it did not qualify.

3. USSSA v. Majni -- 2022-Ohio-3035 (8th Dist.)

(a) Plaintiff sued seeking to enforce a non-compete agreement. The trial court ordered a party to produce trade-secret information, subject to protective order.

(b)The issue again was whether an order that a party produce trade secret information was a provisional remedy under R.C. 2505.02(B)(4). The court held that an order requiring production of trade-secret information grants a provisional remedy, and the appeal was valid.

(c) Contrast with Myers – both Myers and USSSA addressed whether discovery orders were provisional remedies. In USSSA, as in Myers, an order requiring the production of trade secret information is not defined as a provisional remedy. However, in Myers, the Court held that the trial court's order did not grant a provisional remedy since psychological testing was not defined by statute to be a provisional remedy. There is thus some inconsistency in the courts' holdings on whether discovery orders are a provisional remedy.

4. RM Riggle Enters. V. Commerce Park Holdings, LLC -- 2021Ohio-4215 (8th Dist.)

(a) The substantive issue in the case is whether Riggle was required to arbitrate a dispute. Riggle argued in the trial court:

(i) A motion to stay the trial court proceeding should be denied; and

(ii) Its motion to stay the arbitration should be granted

(b) The trial court rejected both arguments by Riggle, and he appealed.

(i) As to the order refusing to stay the arbitration, 2711.02(c) provides that "an order . . . that grants or denies a stay of a trial of any action pending arbitration . . . is a final order and may be reviewed, affirmed, modified, or reversed on appeal." The order granting the motion to stay court proceedings was thus immediately appealable

(ii) The arbitration statute did not address motions to stay arbitration. The court thus addressed that motion under R.C. 2505.02(B)(1), and held that the order was not a final and appealable order because it did not prevent a judgment, since the arbitration statute allows Riggle to challenge the arbitrator's ruling in court.

5. DMS Constr. Enter. v. Homick -- 2020-Ohio-4919 (8th Dist.)

(a) The defendant moved for protective order to prevent plaintiff from deposing defendant's non-testifying expert, on the ground that his opinions were work product. The trial court denied the motion but said that defendant could object at the deposition "on the grounds of attorney-client privilege." The trial court stated that, "[i]n the event of such questions," the expert would be "required to answer the questions and the specific questions and answers shall be excluded from the remainder of the deposition and submitted to the court under seal for an in camera inspection and hearing."

(b) The court of appeals held that a party need only make a "colorable claim" of privilege for an order compelling discovery to be an appealable order. The court held that "to the extent that the trial court's order addressed discovery of allegedly privileged attorney-client communications," it was not a final appealable order since it "did not 'compel' production" of protected materials since the trial court would review the deposition answers in camera.

(c) Critique: the purpose of the attorney-client privilege is to protect the communications from everyone, and requiring the witness to answer questions at a deposition that would be reviewed later by the trial court would allow your adversary to learn the legal advice provided. (In any event, the witness in the case was a non-testifying expert, so any information that witness knew should not be privileged. It is not clear why the courts were concerned that the expert would have privileged information.)

The key takeaway here is that you need to be careful regarding whether a particular order is final and appealable. When you are not certain whether a particular order is final and appealable, it is usually best to file a notice of appeal to preserve the issue; and after you have done so, you should consider immediately filing a motion to dismiss your appeal as addressing an order that is not final and appealable. That way, you have preserved the issue and the court of appeals will decide whether there is a final, appealable order.

One final point: we at the DBA Appellate Practice Section offer a moot court service to DBA members. It is a good opportunity for you to practice arguing before attorneys who are likely to be much like your panel, i.e., have read the briefs but otherwise are not familiar with the facts or the law. If you have an upcoming appellate argument and would like a moot court session, please reach out to me.