[Cite as Summitbridge Natl. Invests., L.L.C. v. Ameritek Custom Homes, Inc.,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

SUMMITBRIDGE NATIONAL : APPEAL NO. C-120476 INVESTMENTS, LLC, TRIAL NO. A-0804913 : Plaintiff-Appellant, O P I N I O N. : vs. : AMERITEK CUSTOM HOMES, INC., et al, :

Defendants, :

and :

TIMOTHY P. OLIVERIO, :

KELLY LOUIS OLIVERIO, :

LYNNE BAYER, :

AMBER N. MANGOLD, :

LORAINE A. DAHLHEIMER, :

PATRICE DAHLHEIMER, :

ADAM JANSZEN, :

MICHAEL S. ROSING, :

DONALD G. SEYFERTH, :

JACQUELINE M. SEYFERTH, :

DANIEL G. LEE, :

DAVID J. DIXON, :

and : OHIO FIRST DISTRICT COURT OF APPEALS

CARRIE M. MEYER :

Defendants-Appellees. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Appeal Dismissed

Date of Judgment Entry on Appeal: March 6, 2013

Graydon Head & Ritchey LLP, Scott K. Jones and Robin D. Miller, for Plaintiff- Appellant,

Adams, Stepner, Woltermann & Dusing, PLLC, Glenn E. Algie and Andrew J. Vandiver, for Defendants-Appellees.

Please note: this case has been removed from the accelerated calendar.

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SYLVIA S. HENDON, Presiding Judge.

{¶1} Plaintiff-appellant SummitBridge National Investments, LLC

(“SummitBridge”), has appealed from the trial court’s ruling on a motion to compel

discovery filed by defendants-appellees Timothy and Kelly Oliverio, Lynn Bayer,

Amber Mangold, Loraine and Patrice Dahlheimer, Adam Janszen, Michael Rosing,

Donald and Jacqueline Seyferth, Daniel Lee, David Dixon, and Carrie Meyer (“the

defendants”).

{¶2} In August of 2009, SummitBridge joined the defendants in an ongoing

foreclosure action that it had initiated in 2008. SummitBridge later dismissed the

defendants from the lawsuit just prior to trial. Following their dismissal, the

defendants filed a motion for sanctions against SummitBridge, alleging that

SummitBridge had frivolously joined them in the lawsuit despite knowledge that it

had no valid claim to the defendants’ properties.

{¶3} The defendants served SummitBridge with various discovery requests,

including interrogatories, requests for admissions, and requests for production of

documents. SummitBridge objected to many of the discovery requests on the ground

that the defendants had sought information protected by the attorney-client

privilege. After the parties were unable to resolve their discovery disputes, the

defendants filed a motion to compel seeking disclosure of two particular items:

SummitBridge’s attorney fees, and all documents evidencing the decision to dismiss

the defendants from the foreclosure action. In an entry granting the motion to

compel, the trial court found that SummitBridge was required to produce the

requested information regarding attorney fees. With respect to the documents

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evidencing the decision to dismiss the defendants from the lawsuit, the trial court

held that

[T]he Court hereby orders that unless Plaintiff is waiving any “advice of

counsel” defense to the motion for sanctions for frivolous litigation,

Plaintiff shall produce the requested communications. And, if Plaintiff’s

counsel will testify at all in connection with the sanctions proceeding, then

Plaintiff shall produce the requested communications.

{¶4} SummitBridge has appealed from this latter portion of the trial court’s

entry. In its sole assignment of error, it challenges the trial court’s entry on the

ground that the court had ordered the production of documents containing

information covered by the attorney-client privilege. But because the entry appealed

from was not a final order, we must dismiss SummitBridge’s appeal.

{¶5} This court’s appellate jurisdiction is limited to the review of final

judgments of lower courts. Ohio Constitution, Article IV, Section 3(B)(2). Before we

may exercise our jurisdiction over any given case, the order appealed from must be

final and meet the requirements of R.C. 2505.02. See Hadassah v. Schwartz, 1st

Dist. No. C-110699,

. R.C. 2505.02(B)(4) provides that an order

is final when it

Grants or denies a provisional remedy and to which both of the

following apply: (a) The order in effect determines the action with

respect to the provisional remedy and prevents a judgment in the

action in favor of the appealing party with respect to the provisional

remedy [and;] (b) The appealing party would not be afforded a

4 OHIO FIRST DISTRICT COURT OF APPEALS

meaningful or effective remedy by an appeal following final judgment

as to all proceedings, issues, claims, and parties in the action.

{¶6} Generally, discovery orders are neither final nor appealable. Grace v.

Mastruserio,

,

,

(1st

Dist.). But a proceeding concerning the discovery of privileged material is one type

of provisional remedy contemplated by R.C. 2505.02(A)(3). For an order concerning

the discovery of privileged material to be final and appealable, it must meet the

requirements contained in R.C. 2505.02(B)(4). Here, the trial court’s order did not

meet those necessary requirements.

{¶7} The court’s order did not determine the action with respect to the

provisional remedy, namely the compelled production of allegedly privileged

material. In its entry, the trial court never formally ordered the production of

privileged material. Rather, the court’s entry was conditional in nature and advised

the parties as to how discovery would proceed going forward based on particular

actions taken by SummitBridge. The trial court held that “unless Plaintiff is waiving

any ‘advice of counsel’ defense * * *, Plaintiff shall produce the requested

communications.” The entry further held that “if Plaintiff’s counsel will testify at all

in connection with the sanctions proceeding, then Plaintiff shall produce the

requested communications.” The trial court’s entry left SummitBridge with several

possible courses of action which would determine whether the items would be

subject to compelled discovery.

{¶8} The rationale for finding that an order compelling the discovery of

privileged material is final and appealable is to “prevent the dissemination of

protected materials, and to avoid the quagmire of being unable to unring the

5 OHIO FIRST DISTRICT COURT OF APPEALS

proverbial bell.” Dispatch Printing Co. v. Recovery Ltd. Partnership,

,

,

(10th Dist). Here, neither

concern is present. No protected materials have been ordered to be produced, and

no irreversible action has been taken.

{¶9} SummitBridge has not appealed from a final and appealable order.

Consequently, the appeal is dismissed.

Appeal dismissed.

HILDEBRANDT and DEWINE, JJ., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.

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