Ohio Law: Final, appealable orders
By Justice Paul E. Pfeifer
Ohio Supreme Court
We do not often review divorce cases here at the Supreme Court of Ohio. When we do, it’s usually because some unique legal challenge has arisen during the divorce proceedings that call for a judicial review. Such was the case with the divorce of Jeffrey R. Kissinger from his wife, Beth A. Wilhelm-Kissinger.
During the proceedings, a dispute arose regarding allegedly illegally obtained and privileged e-mail messages between Jeffrey and his attorney. Apparently, Beth had taken the e-mails from Jeffrey’s computer and given them to her attorney.
When Jeffrey discovered what had happened, he filed a motion in the Summit County Court of Common Pleas Domestic Relations Division to disqualify Beth’s attorney. After a hearing in which Beth’s attorney reported that he never sought or reviewed any of the e-mail messages in question, the trial court denied the disqualification motion. In response, Jeffrey filed an appeal.
But the Ninth District Court of Appeals dismissed Jeffrey’s appeal. The court determined that it had no jurisdiction because the trial court’s decision to deny Jeffrey’s motion to disqualify Beth’s attorney was not a final, appealable order according to the law.
What does that mean, that it was not a “final, appealable order?” The term refers to a court order and whether it is considered “final” and thus eligible to be appealed and reviewed by a higher court. Ohio’s courts of appeal have jurisdiction “to review and affirm, modify, or reverse final orders.”
One of the sections of Ohio law that governs appellate courts states: “An order is a final order that may be reviewed…if it grants or denies a provisional remedy.” That section of the law, which we’ll refer to as B4, is the section that the court of appeals relied on to dismiss Jeffrey’s appeal.
After the court of appeals dismissed his appeal, Jeffrey filed a motion for reconsideration. He argued that the trial court’s denial of disqualification did constitute a final, appealable order, but he cited a different section of the law governing appellate courts. The section Jeffrey cited, which we’ll refer to as B2, states: “An order is a final order that may be reviewed… if it affects a substantial right made in a special proceeding….” But again the Ninth District upheld its decision to dismiss Jeffrey’s appeal.
Next, Jeffrey filed a motion to have the Ninth District certify a conflict between its reconsidered decision in his case and a decision by the Tenth District Court of Appeals in a divorce case—Crockett v. Crockett—that presented a similar issue. In Crockett, the Tenth District concluded that in light of the “well-established principle” that the denial of a motion to disqualify an attorney in a divorce proceeding affects a substantial right, the denial is final and appealable under section B2.
The Ninth District certified that a conflict existed between it and the Tenth District. When that happens, the conflict comes before us—the Supreme Court of Ohio—for a final resolution. In this case, the certified question put to us was this: Does the denial of a motion to disqualify an attorney in a divorce proceeding affect a substantial right, and is it a final and appealable order?
As previously mentioned, Ohio’s courts of appeals have jurisdiction “to review and affirm, modify, or reverse final orders.” That jurisdiction is established by the Ohio Constitution. Ohio law sets forth several types of orders that are final and appealable. The Kissinger divorce case involved the type defined by the section that we referred to as B2, which makes an “order that affects a substantial right made in a special proceeding” a final, appealable order.
According to the legal definition, a divorce is considered a “special proceeding,” so we turned to the issue of whether the order by the trial court denying Jeffrey’s motion to disqualify Beth’s attorney “affects a substantial right.”
An order is considered to affect a substantial right only if an immediate appeal is necessary to protect the right effectively. To put it another way, to prevail in contending that an order affects a substantial right, the people filing the appeal “must demonstrate that in the absence of immediate review of the order they will be denied effective relief in the future.”
In several previous cases over the years our court has held that a decision granting a motion to disqualify opposing counsel is a final, appealable order that the person deprived of counsel can appeal immediately. But in this case we had to address whether in a divorce proceeding an order denying a motion to disqualify opposing counsel also qualifies as a final, appealable order.
As Justice Yvette McGee Brown wrote in our majority opinion, “Orders granting and denying disqualification of counsel differ in two key respects. First, an order granting disqualification immediately and definitely affects the party it deprives of chosen counsel; the purpose of appealing such an order is to prevent the removal itself.
“By contrast, an order denying disqualification, standing alone, affects no right held by” the person who unsuccessfully filed the motion, “because there is no substantial right to disqualify opposing counsel.
“Second, an order granting disqualification typically imposes a permanent effect because it is unlikely to be reconsidered as a trial progresses. Therefore, a grant of a motion to disqualify counsel must be appealed immediately or its effect will be irreversible. An order denying disqualification, however, lacks a similarly permanent effect.”
An order that denies disqualifying opposing counsel may be revisited throughout the trial, and the person seeking disqualification—Jeffrey Kissinger, in this case—may pursue other avenues, such as disciplinary proceedings, to address any improprieties that occur.
“With these differences in mind,” Justice McGee Brown wrote, “we cannot conclude that an order denying disqualification in the divorce context requires immediate appeal to ensure the protection of a substantial right.”
We thus concluded—by a six-to-zero vote—that in the context of divorce proceedings, the denial of a motion to disqualify counsel is not a final, appealable order.
EDITOR’S NOTE: The case referred to is: Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317. Case No. 2010–0992. Decided May 19, 2011. Majority opinion written by Justice Yvette McGee Brown.