IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Armando Cuervo et al.,

:

Plaintiffs-Appellees,

:

Nos. 99AP-1

442,

v.

99AP-1443

:

and 99AP-1458

Stephen H.L. Snell et al.,

:

(ACCELERATED CALENDAR )

Defendants-Appellants.

:

O P I N I O N

Rendered on September 26, 2000

Vorys, Sater, Seymour & Pease, LLP ., Bruce L. Ingram and

Kevin R. Connors, for appellees.

Rendigs, Fry, Kiely & Dennis, Thomas S. Shore, Jr ., and

Lynne M. Longtin, for appellants Daniel F. Ryan, Alan K.

Veatch, and Campbell, Hornbeck, Chilcoat & Veatch.

Lane, Alton & Horst, Jeffrey J. Jurca and Elizabeth I. Cooke,

for appellants Simon & Oppenheimer.

Roetzel & Andress, and Kevin J. Osterkamp, for appellant

Nancy Kantrowitz.

APPEAL from the Franklin County Court of Common Ple as.

BROWN, J.

Defendants-appellants, Simon & Oppenheimer, Daniel F. Ryan, Alan K.

Veatch, Campbell, Hornbeck, Chilcoat & Veatch and N ancy Kantrowitz appeal a decision

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Nos. 99AP-1442, 99AP-1443 & 99AP-1458

2

of the Franklin County Court of Common Pleas granti ng a motion to compel discovery in

favor of plaintiffs-appellees, Armando, Andrew, Cri stina, and Cathy Cuervo. We reverse

and remand.

On June 7, 1991, the Franklin County Court of Comm on Pleas entered a

judgment in favor of appellees and jointly and seve rally against Stephen and Peter Snell

for $262,248.85. Unable to collect their judgment, on July 17, 1997, appellees filed a

complaint against Stephen H. L. Snell ("Snell"), Mo neymetrics Agency, Inc., Susan

Lynette Andersen, Kirk Andersen, Moneymetrics Insur ance Agency, Inc., C. Dewayne

Youts, Rock Financial, Inc., P. Nini Raabe Trust, a nd Commerce National Bank, alleging

that "Snell and others perpetrated a series of frau dulent transfers *** in order to evade the

consequences" of the lawsuit. Appellees also alleg ed that, because of added interest, the

judgment had grown to $423,190.69 as of June 30, 19 97. Appellees claimed that "[a]t the

same time the Cuervos were attempting to collect th e judgment, Defendant Snell, with the

knowledge and assistance of others, began a systema tic, calculated and fraudulent effort

to transfer or otherwise shield his assets from the

collection efforts of the Cuervos."

Appellees sought relief by requesting the court enj oin further transfers and permit

appellees to attach and levy those assets.

Appelle es also alleged that appellants

engaged in fraud and conspiracy.

On December 7, 1999, appellees filed a motion to c ompel discovery.

Appellees argued that Snell waived the attorney-cli ent privilege with respect to

communications with his former counsel regarding th e asset transfers. On December 10,

1999, the trial court granted appellees' motion, ho lding that Snell had waived attorney-

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Nos. 99AP-1442, 99AP-1443 & 99AP-1458

3

client privilege concerning the transfers. Followi ng the trial court's decision, three notices

of appeal were filed. Simon & Oppenheimer filed a

notice of appeal that was assigned

appellate number 99APE12-1442, and presents the fol lowing two assignments of error:

I.

THE TRIAL COURT ERRED AND ABUSED ITS

DISCRETION WHEN IT GRANTED THE MOTION TO

COMPEL DISCOVERY FILED BY PLAINTIFFS-APPELLEES

WITHOUT

ALLOWING

TIME

FOR

DEFENDANTS-

APPELLANTS AFFECTED BY THE RULING ON THE

MOTION TO RESPOND IN WRITING OR AT A HEARING

ON THE MOTION.

II. THE TRIAL COURT ERRED WHEN IT GRANTED THE

MOTION TO COMPEL DISCOVERY FILED BY PLAINTIFFS-

APPELLEES.

Daniel F. Ryan, Alan K. Veatch, and Campbell, Hornb eck, Chilcoat & Veatch filed a

notice of appeal that was assigned appellate number 99APE12-1443, and presents the

following two assignments of error:

I. THE TRIAL COURT ERRED AND ABUSED ITS

DISCRETION IN GRANTING PLAINTIFFS-APPELLEES'

MOTION

TO

COMPEL

BEFORE

ALLOWING

DEFENDANTS-APPELLANTS

AN

OPPORTUNITY

TO

RESPOND TO THE MOTION OR BEFORE CONDUCTING A

HEARING ON SUCH MOTION TO COMPEL.

II. THE TRIAL COURT ERRED AND ABUSED ITS

DISCRETION IN FINDING THAT SNELL HAS WAIVED THE

ATTORNEY-CLIENT PRIVILEGE IN THIS CASE , BASED

UPON THE LIMITED AND INCOMPLETE INFORMATION

BEFORE THE COURT.

Nancy Kantrowitz filed a notice of appeal that was

assigned appellate number 99APE12-

1458, and presents the following two assignments of error:

I. THE TRIAL COURT ERRED AND ABUSED ITS

DISCRETION BY ORDERING THE DISCLOSURE OF

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Nos. 99AP-1442, 99AP-1443 & 99AP-1458

4

PRIVILEGED INFORMATION IN CONTRAVENTION OF

CIVIL RULE 6(D) AND LOCAL RULE 21 OF THE COURT OF

COMMON PLEAS FRANKLIN COUNTY BY RULING

WITHOUT

GIVING

THE

OPPOSING

PARTY

AN

OPPORTUNITY TO BE HEARD.

II. THE TRIAL COURT ERRED IN FINDING A WAIVER OF

THE ATTORNEY-CLIENT PRIVILEGE BASED UPON A

COMPLETE ABSENCE OF EVIDENCE RELATING TO

COMMUNICATIONS

BETWEEN

MR.

SNELL

AND

ATTORNEY NANCY KANTROWITZ.

Because of the similarities between appellants' ass ignments of error, we will discuss them

together.

Before addressing appellants' assignments of error , it is necessary for us to

rule on appellees' motion to dismiss appellants' ap peal. Appellees argue in their motion

that we do not have jurisdiction over the present c ase because no judgment or final order

was entered by the trial court. Appellees contend

that the disclosure of previously

disclosed, privileged, confidential communications between an attorney and his or her

client is not appealable.

R.C. 2505.02(B) states in part:

An order is a final order that may be reviewed, aff irmed,

modified, or reversed, with or without retrial, whe n it is one of

the following:

***

(4) An order that grants or denies a provisional re medy 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 t he action

in favor of the appealing party with respect to the

provisional

remedy.

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Nos. 99AP-1442, 99AP-1443 & 99AP-1458

5

(b) The appealing party would not be afforded a mea ningful or

effective remedy by an appeal following final judgm ent as to

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

A provisional remedy means "a proceeding ancillary to an action, including, but not limited

to, a proceeding for a preliminary injunction, atta chment, discovery of privileged matter, or

suppression of evidence." R.C. 2505.02(A)(3).

In the present case, the trial court ruled that Sn ell had waived his attorney-

client privilege with respect to communications wit h his former counsel regarding the

asset transfers. The court thereafter ordered Ryan "and all of defendant Snell's former

counsel" to answer questions and provide discovery regarding those transfers. In a case

involving an appeal of a trial court ruling concern ing the discovery of trade secrets, an

appellate court has stated:

On its face, R.C. 2505.02(A)(3) is flexible and abl e to address

situations where a party has a protectable interest

at stake

and yet has no meaningful ability to appeal the dec ision which

discloses that interest to others. If a trial cour t orders the

discovery of trade secrets and such are disclosed,

the party

resisting discovery will have no adequate remedy on appeal.

The proverbial bell cannot be unrung and an appeal

after final

judgment on the merits will not rectify the damage.

Gibson-

Myers & Assoc. v. Pearce (Oct. 27, 1999), Summit App. No.

19358, unreported.

We find that this reasoning should be applied to t he present case.

Communications between an attorney and his or her c lient may be considered privileged

matter pursuant to R.C. 2505.02(A)(3). Therefore, a trial court's ruling concerning the

discovery of this information should be appealable

because once that information is

disclosed, the "proverbial bell cannot be unrung."

Accordingly, we overrule appellees'

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Nos. 99AP-1442, 99AP-1443 & 99AP-1458

6

motion to dismiss, finding that R.C. 2505.02(A)(3) grants this court jurisdiction to consider

appellants' appeal.

Appellants argue in their first assignments of err or that the trial court erred

when it granted appellees' motion to compel discove ry because it failed to give appellants

an opportunity to respond to the motion. We agree.

Civ.R. 7(B)(2) gives a trial court the authority t o enact a local rule of court

modifying the seven-day period between the filing a nd hearing of a motion under Civ.R.

6(D). Hillabrand v. Drypers Corp. (2000), 87 Ohio St.3d 517, 519. Loc.R. 21.01 state s in

part:

All motions shall be accompanied by a brief stating

the

grounds and citing the authorities relied upon. Th e opposing

counsel or a party shall serve any answer brief on

or before

the 14

th

day after the date of service as set forth on the

certificate of service attached to the served copy

of the

motion. The moving party shall serve any reply bri ef on or

before the 7

th

day after the date of service as set forth on the

certificate of service attached to the served copy

of the

answer brief. On the 28

th

day after the motion is filed, the

motion shall be deemed submitted to the Trial Judge .

"However hurried a court may be in its efforts to r each the merits of a controversy, the

integrity of procedural rules is dependent upon con sistent enforcement because the only

fair and reasonable alternative thereto is complete abandonment." Miller v. Lint (1980),

62 Ohio St.2d 209, 215. "[I]f a trial court disreg ards the response time created by the

Ohio Rules of Civil Procedure, that court has commi tted reversible error." Gibson-Myers,

supra, following In re Foreclosure of Liens for Delinquent Taxes (1992), 79 Ohio App.3d

766, 771-772.

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Nos. 99AP-1442, 99AP-1443 & 99AP-1458

7

In the present case, appellees filed a motion to c ompel discovery on

December 7, 1999. The trial court filed its decisio n on appellees' motion on December 10,

1999. At the time the trial court filed its decisi on, appellants had not filed a response.

The trial court's decision was filed eleven days be fore the time Loc.R. 21.01 allowed

appellants to respond to appellees' motion. The tr ial court's decision was also filed

twenty-five days before the time Loc.R. 21.01 state s that the motion "shall be deemed

submitted to the Trial Judge." Therefore, based up on these facts, we find that the trial

court committed reversible error by not allowing ap pellants an opportunity to respond to

appellees' motion before rendering its decision.

Thus, we sustain appellants' first assignments of

error. Because of our

disposition of appellants' first assignments of err or, we do not need to address their

second assignments as the issues raised in them are moot. App.R. 12(A)(1)(c).

Accordingly, appellants' first assignments of erro r are sustained, appellants'

second assignments of error are rendered moot, and the judgment of the Franklin County

Court of Common Pleas is reversed and this cause is

remanded to that court for further

proceedings that are consistent with this opinion.

Judgment reversed;

cause remanded.

LAZARUS & KENNEDY, JJ., concur.

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