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.

Posted by Paul Pfeifer on Nov 21 2011. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.