[Cite as Pietrangelo v. Avon Lake, 2016-Ohio-8201.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

JAMES E. PIETRANGELO, II                                   C.A. Nos.   15CA010804
                                                                       15CA010873
        Appellant

        v.
                                                           APPEAL FROM JUDGMENT
CITY OF AVON LAKE, OHIO                                    ENTERED IN THE
                                                           COURT OF COMMON PLEAS
        Appellee                                           COUNTY OF LORAIN, OHIO
                                                           CASE No.   13CV181561

                                DECISION AND JOURNAL ENTRY

Dated: December 19, 2016



        MOORE, Presiding Judge.

        {¶1}    Plaintiff-Appellant James E. Pietrangelo, II appeals from judgments of the Lorain

County Court of Common Pleas. We affirm in part, reverse in part, vacate in part, and dismiss in

part.

                                                      I.

        {¶2}    In September 2013, Mr. Pietrangelo, appearing pro se,1 filed a complaint against

Defendant-Appellee the City of Avon Lake, Ohio (“Avon Lake”) asserting that the skate park

owned and operated by Avon Lake as part of Weiss Field created a nuisance. The skate park is

located in the vicinity of where Mr. Pietrangelo lives. The skate park has been open since 2004,

and Mr. Pietrangelo began living near the park in 2011. Mr. Pietrangelo asserted, inter alia, that




        1
        Mr. Pietrangelo, a licensed attorney, represented himself below and has chosen to do so
again on appeal. In addition, he represented his brother below to the extent his brother became
involved in the proceedings.
                                                 2


the skate park was excessively noisy, posed a danger to children, and that the individuals using

the skate park vandalized it, used excessive profanity, visited the park after hours, and littered in

the park. He alleged causes of action for common law private nuisance and common law public

nuisance. Mr. Pietrangelo sought a temporary restraining order and/or preliminary injunction

requiring Avon Lake to temporarily close the skate park, a permanent injunction requiring Avon

Lake to permanently close the skate park, and attorney fees and costs.

       {¶3}    Thereafter, Mr. Pietrangelo filed a motion for a temporary restraining order and/or

preliminary injunction. Prior to the trial court ruling on the motion, Mr. Pietrangelo attempted to

appeal, but this Court dismissed the attempted appeal noting there had not been a ruling from

which to appeal. See Pietrangelo v. Avon Lake, 9th Dist. Lorain No. 14CA010584 (June 26,

2014). Mr. Pietrangelo’s motion was subsequently denied following significant briefing and

hearings. Mr. Pietrangelo appealed the trial court’s ruling and this Court dismissed the appeal

concluding that the order was not final and appealable. See Pietrangelo v. Avon Lake, 9th Dist.

Lorain No. 14CA010644 (Oct. 23, 2014).

       {¶4}    After Mr. Pietrangelo filed two motions seeking to have the trial judge

disqualified, the trial judge voluntarily recused himself and a visiting judge was assigned to the

matter. Following the reassignment, Mr. Pietrangelo sought reconsideration and/or renewal of

various motions he had filed in the past that were denied. The motions were ultimately denied.

       {¶5}    Thereafter discovery issues began to arise. In June 2015, the trial court issued an

order requiring Avon Lake to forward to the trial court a copy of the medical authorization form

it wanted Mr. Pietrangelo to complete, detailing the authorization’s “scope, cost assessment, and

authority for same on or before June 24, 2015.” The trial court indicated that “[t]he response

[wa]s due on or before July 2, 2015.” On June 15, 2015, Avon Lake filed a response to Mr.
                                                 3


Pietrangelo’s request for an extension of time to reply to certain discovery requests. Attached to

that response was a copy of the medical authorization form. However, that response did not

discuss the points mentioned in the trial court’s order. On June 26, 2015, Avon Lake filed its

“statement on proposed medical authorization for [Mr. Pietrangelo’s] medical records[.]” Less

than three hours later, the trial court issued an order finding the medical authorization to be

“reasonable” as it contained “multiple safeguards and protect[ed] [Mr. Pietrangelo].” The trial

court ordered Mr. Pietrangelo “to execute the authorization and respond to discovery requests.”

The trial court required the authorization to be completed by July 8, 2015, and indicated that

failure to do so would result in sanctions. On June 30, 2015, Mr. Pietrangelo responded in

opposition.

       {¶6}    Thereafter, Mr. Pietrangelo filed a notice of appeal from the trial court’s June 26,

2015 order requiring him to execute the medical authorization form. Mr. Pietrangelo filed a

motion to stay the ruling; however, it does not appear that the trial court ruled on that motion.

While Mr. Pietrangelo filed a document indicating that he served Avon Lake with all of his

medical records that he deemed relevant, nothing in the record suggests that Mr. Pietrangelo ever

executed the medical authorization form or that the trial court’s order requiring Mr. Pietrangelo

to execute the authorization was ever vacated.

       {¶7}    Discovery disputes continued nonetheless. On July 22, 2015, Mr. Pietrangelo

filed a motion for a protective order and a motion to quash on behalf of himself and his brother

to prevent their depositions. Mr. Pietrangelo maintained that the relief was necessary due to

Avon Lake’s counsels’ history of “animosity and acting out[.]” The trial court summarily denied

the motion. On July 23, 2015, the trial court issued an order stating a pretrial hearing was held

and that Mr. Pietrangelo failed to appear, and that, when he was contacted, he indicated that he
                                                 4


would not appear. The trial court indicated that a member of the court staff was instructed to

contact Mr. Pietrangelo and inform him that the deposition of his brother would proceed on July

23, 2015, as scheduled, and Mr. Pietrangelo’s deposition would take place on July 27, 2015, as

scheduled. Those depositions were ultimately rescheduled.

       {¶8}    On July 29, 2015, Avon Lake filed a motion to compel the production of video,

audio, and photographs of the skate park created by Mr. Pietrangelo. That motion was granted

the next day. In that order, the trial court indicated that “[n]on-compliance [would] result in

sanctions including but not limited to an award of attorney fees and costs and or dismissal of this

lawsuit.”     Nonetheless, the parties entered into a stipulated protection order concerning

confidential information, which appears to be related in part to the recordings.

       {¶9}    On September 3, 2015, Avon Lake filed a motion to compel the deposition

testimony of Mr. Pietrangelo and his brother. Avon Lake asserted that both deponents “refused

to answer legitimate questions seeking relevant information regarding the claims and defenses at

issue.” Avon Lake further maintained that the deponents refused to respond “even after the

Court instructed the parties on how to handle disputes regarding the appropriateness of particular

questions. Specifically, the Court directed the parties to object, then answer the question and

raise any objection with the Court later.”

       {¶10} At a pretrial on September 10, 2015, the trial court addressed the issue. The trial

court confirmed that it told the parties that “the format is that if there is an objection, you pose

the objection but answer the question and the Court will address the objection as it relates to the

various questions.” The trial court noted that, “the fact of the matter is, and I warned you at that

time and I don’t want to do this, I have not granted sanctions against you, but I have indicated to

you that we are at a point because the trial is approaching that I am going to have to impose
                                                 5


sanctions. Those sanctions could include a[] dismissal of your action.” Ultimately, Avon Lake

agreed to submit interrogatories to Mr. Pietrangelo and his brother instead of attempting another

deposition. The trial court indicated that objections to the interrogatories could be made, but the

questions still must be answered. At the end of the pretrial, the trial court declined to impose

sanctions on either side, but nonetheless admonished that, “[i]f there are any further problems * *

* I will impose sanctions. And sanctions may include either granting judgment in one instance

or in dismissing the lawsuit.” On September 17, 2015, the trial court issued an order reciting the

events of the pretrial,2 which included the warning that “[f]ailure to comply with these orders

will result in sanctions which may include dismissal with prejudice or entry of judgment.”

       {¶11} On September 18, 2015, Avon Lake filed a motion to hold Mr. Pietrangelo in

contempt and to dismiss his case with prejudice. Avon Lake asserted that Mr. Pietrangelo

refused to answer four of the interrogatories claiming that the questions were not within the

scope of the trial court’s order. On the day of the scheduled trial, September 21, 2015, the trial

court heard the parties on Avon Lake’s motion. That day, the trial court issued a judgment entry

stating that Mr. Pietrangelo “ha[d] been repeatedly put on notice that continued non compliance

with legitimate discovery requests would result in sanctions including a dismissal with prejudice

of this case.” The trial court then concluded that, “[t]he Court must enforce its orders and has

inherent authority to do so. Due to [Mr. Pietrangelo’s] disobedience, resistan[ce] to and refusal

to comply with lawful orders of this Court, this case is dismissed with prejudice.” The trial court




       2
          The order indicates that “Defendant” is to answer interrogatories; however, that
reference, in light of the transcript of the hearing, appears to be a typographical error. Moreover,
the next sentence of the order notes that “[i]nterrogatories [are] to be used in lieu of depositions
for both [Mr. Pietrangelo and his brother].”
                                                   6


went on to find that Mr. Pietrangelo “acted in bad faith and vexatiously[]” and held him in

“direct contempt of court and fined [him] $500.00.” The trial court, however, suspended the fine

and determined that “dismissal w[ould] serve as sufficient punishment for [Mr. Pietrangelo’s]

contempt.”

       {¶12} Thereafter, Mr. Pietrangelo and his brother filed a joint notice of appeal,

appealing the final judgment as well as various other orders of the trial court.3 Ultimately, this

Court consolidated the appeal from the trial court’s ruling on the medical authorization form with

the appeal from the final judgment. The assignments of error will be addressed out of sequence

in order to facilitate our review of the issues before us.

                                                  II.

Appeal No. 15CA010873 – Appeal of the Final Judgment

                                 ASSIGNMENT OF ERROR XI

       [THE TRIAL COURT] ERRED IN ISSUING [ITS] JUNE 26, 2015 ORDER
       FOR [MR.] PIETRANGELO TO EXECUTE AVON LAKE’S MEDICAL
       AUTHORIZATION AND TO COOPERATE IN DISCOVERY RELATIVE TO
       THE MEDICAL RECORDS SOUGHT BY THE AUTHORIZATION.

       {¶13} Mr. Pietrangelo has listed this assignment of error in his brief addressing appeal

no. 15CA010873 but has failed to develop any argument in that brief with respect to this

assignment of error.

       {¶14} Further, while this assignment of error on its face appears to be a challenge to the

trial court’s order that Mr. Pietrangelo execute the medical authorization form, that order was a

final, appealable order when it was issued. Miller v. State Farm Mut., Auto. Ins. Co., 9th Dist.




       3
          The notice of appeal indicates that Mr. Pietrangelo’s brother’s appeal is limited to the
trial court’s orders over the brother as a witness. However, Mr. Pietrangelo’s brother did not
submit a brief in this matter.
                                                  7


Summit No. 27236, 2015-Ohio-280, ¶ 13. Thus, Mr. Pietrangelo’s appeal of that order as part

of this appeal is untimely. See In re Estate of Keegan, 6th Dist. Sandusky No. S-88-17, 1989

WL 35497, *1 (Apr. 14, 1989), citing Oberlin Savings Bank Co. v. Fairchild, 175 Ohio St. 311,

312 (1963) (“Where a trial court judgment, although interlocutory in character, constitutes a final

appealable order, an appeal from the date of such judgment must be timely perfected. The time

for appealing a final appealable order, interlocutory in character, is not tolled until final judgment

as to all causes and parties is rendered.”).

       {¶15} Accordingly, this Court lacks jurisdiction to consider Mr. Pietrangelo’s eleventh

assignment of error in this appeal.

                                 ASSIGNMENT OF ERROR III

       [THE TRIAL COURT] DID NOT HAVE JURISDICTION TO MAKE [ITS]
       SEPTEMBER 21, 2015 RULINGS.

       {¶16} Mr. Pietrangelo asserts in his third assignment of error that the trial court lacked

jurisdiction to issue its September 21, 2015 rulings because the rulings disposed of the case while

another appeal was pending in this Court.

       {¶17} “‘An appeal is perfected upon the filing of a written notice of appeal. R.C.

2505.04. Once a case has been appealed, the trial court loses jurisdiction except to take action in

aid of the appeal.’ In re S.J., 106 Ohio St.3d 11, * * * 2005-Ohio-3215, * * * ¶ 9.” Ormandy v.

Dudzinski, 9th Dist. Lorain No. 09CA009713, 2010-Ohio-2017, ¶ 11. “The trial court retains

jurisdiction over issues not inconsistent with the appellate court’s jurisdiction to reverse, modify,

or affirm the judgment appealed from.” In re S.J. at ¶ 9. Accordingly, collateral issues such as

“contempt, appointment of a receiver and injunction[]” generally remain within the jurisdiction

of a trial court while another matter is on appeal. See State ex rel. Special Prosecutors v. Judges,

Courts of Common Pleas, 55 Ohio St.2d 94, 97 (1978); see also Pine v. Haddox Installation
                                                  8


Servs., LLC, 9th Dist. Summit No. 22391, 2005-Ohio-3635, ¶ 10. Courts have concluded that

such collateral issues can also include the imposition of sanctions. See Webb v. Pewano, Ltd.,

12th Dist. Fayette Nos. CA2008-10-036, CA2008-12-042, 2009-Ohio-2629, ¶ 30 (Civ.R. 11

sanctions); Middleton v. Luna’s Restaurant & Deli, L.L.C., 5th Dist. Stark No. 2011-CA-00181,

2012-Ohio-348, ¶ 11. The important consideration, however, remains whether the trial court’s

action is inconsistent with the appellate court’s ability to review, affirm, modify, or reverse the

appealed judgment. See State ex rel. Special Prosecutors at 97; see also Middleton at ¶ 11 (“A

trial court may not assume jurisdiction over matters inconsistent with the appellate court’s

jurisdiction to review, reverse, modify, or affirm the judgment.”).

       {¶18} This Court does not dispute that the trial court had jurisdiction to enforce its

orders via contempt or sanctions proceedings even while the medical authorization form appeal

was pending in this Court. See State ex rel. Special Prosecutors at 97. However, the problem

with the trial court’s actions lies in the nature of its sanction. Here, the trial court dismissed Mr.

Pietrangelo’s case with prejudice for his failure to comply with court orders. That dismissal

clearly interfered with our ability to review Mr. Pietrangelo’s appeal concerning the medical

authorization form as the dismissal rendered the medical authorization appeal moot. Thus, under

the particular circumstances of this case, we conclude that the trial court lacked jurisdiction to

dismiss the case with prejudice. See Fifth Third Mtge., Co. v. Rankin, 4th Dist. Pickaway No.

11CA18, 2012-Ohio-2804, ¶ 14 (noting that the trial court retained jurisdiction to conduct

contempt proceedings but its sanction was inconsistent with pending appeal); Labate Chrysler,

Jeep, Dodge, Inc. v. Fifth Third Bank, 7th Dist. Columbiana No. 05 CO 57, 2006-Ohio-3480, ¶

14-15 (concluding that trial court lacked jurisdiction to rule on motion to dismiss while appeal of

denial of motion for preliminary injunction was pending).
                                                 9


       {¶19} As the trial court lacked jurisdiction to dismiss the case with prejudice, that

portion of the judgment is void and is a nullity. See Hairline Clinic, Inc. v. Riggs-Fejes, 9th Dist.

Summit No. 25171, 2011-Ohio-5894, ¶ 12. Thus, we exercise our inherent authority to vacate

that portion of the judgment. See id. Therefore, to the extent Mr. Pietrangelo has argued that the

trial court lacked jurisdiction to dismiss the action with prejudice his third assignment of error is

sustained. Upon remand, the trial court can consider which sanction to impose. This Court takes

no position at this time on whether dismissal in the absence of a pending appeal would be an

appropriate sanction.

                                  ASSIGNMENT OF ERROR I

       [THE TRIAL COURT’S] SEPTEMBER 21, 2015 ORAL AND WRITTEN
       FINDINGS/HOLDINGS FINDING/HOLDING [MR.] PIETRANGELO IN
       CONTEMPT, FINING HIM $500 (SUSPENDED), AND DISMISSING HIS
       CASE WITH PREJUDICE, AND THE ORDER(S)/JUDGMENT OF THE
       SAME (COLLECTIVELY “THE SEPTEMBER 21, 2015 RULINGS”), WERE
       PLAIN ERROR, PREJUDICIAL ERROR, AND/OR AN ABUSE OF
       DISCRETION, INCLUDING DUE TO EACH OF THE FOLLOWING
       SEPARATE ERRORS WHICH ARE FULLY INCORPORATED HEREIN AS
       THE DISCUSSION FOR THIS ASSIGNMENT OF ERROR.

                                ASSIGNMENT OF ERROR IV

       [THE TRIAL COURT] DENIED [MR.] PIETRANGELO NOTICE OF, AND A
       MEANINGFUL OPPORTUNITY TO RESPOND TO/IN, AVON LAKE’S
       CONTEMPT MOTION (“THE MOTION”) AND THE RESULTING
       IMPROMPTU HEARING DURING THE TRIAL[.]

                                 ASSIGNMENT OF ERROR V

       THE TRIAL COURT * * * PREJUDICIALLY ORDERED [MR.]
       PIETRANGELO TO PROVIDE AN EMAIL ACCOUNT FOR SERVICE[.]

                                ASSIGNMENT OF ERROR VI

       [THE TRIAL COURT] PREJUDICIALLY REFUSED TO CONTINUE THE
       IMPROMPTU HEARING.
                                                10


                                  ASSIGNMENT OF ERROR VII

       [THE TRIAL COURT] CLASSIFIED [MR.] PIETRANGELO’S ALLEGED
       CONTEMPT AS DIRECT INSTEAD OF INDIRECT AND THEREBY DENIED
       [MR.] PIETRANGELO A FORMAL CONTEMPT TRIAL (AND ATTENDANT
       CONSTITUTIONAL SAFEGUARDS) TO WHICH [MR.] PIETRANGELO
       WAS ENTITLED[.]

                               ASSIGNMENT OF ERROR VIII

       [THE TRIAL COURT] DID NOT CLEARLY SPECIFY ALL OF THE BASES
       UPON WHICH HE FOUND/HELD [MR.] PIETRANGELO IN CONTEMPT.

                                  ASSIGNMENT OF ERROR IX

       [THE TRIAL COURT] ACTUALLY FOUND [MR.] PIETRANGELO GUILTY
       OF CRIMINAL CONTEMPT, BUT DID NOT PROVIDE HIM WITH THE
       REQUISITE CONSTITUTIONAL DUE-PROCESS PROTECTIONS.

                                  ASSIGNMENT OF ERROR X

       [THE TRIAL COURT’S] CONTEMPT FINDINGS/HOLDINGS WERE
       ARBITRARY/UNREASONABLE, AND WERE NOT SUPPORTED BY THE
       EVIDENCE BEYOND A REASONABLE DOUBT (THE APPLICABLE
       STANDARD, SEE SUPRA) OR EVEN CLEARLY AND CONVINCINGLY
       (THE STANDARD FOR CIVIL CONTEMPT * * *)[.]

                                  ASSIGNMENT OF ERROR XII

       [THE TRIAL COURT’S] CONTEMPT FINDINGS/HOLDINGS AND
       SANCTIONS WERE EXCESSIVE/UNFAIR, INCLUDING AS A MATTER OF
       EQUITY[.]

       {¶20} Mr. Pietrangelo’s first, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and

twelfth assignments of error all raise issues concerning the contempt hearing, findings, and

sanctions. To the extent that Mr. Pietrangelo challenges the dismissal of the action as a sanction,

that sanction has been vacated.

       {¶21} Nonetheless, challenges to the finding of contempt and the process that led to that

finding are properly before us. However, because a transcript of the contempt hearing is not part

of the record on appeal, see Loc.R. 6(C); App.R. 9(A), we determine we are required to presume
                                                11


regularity in the trial court’s proceedings and affirm the trial court’s judgment. See Zaryki v.

Breen, 9th Dist. Summit No. 27968, 2016-Ohio-7086, ¶ 15.

       {¶22} Loc.R. 6(C) states:

       Transcript Made Record. No transcript of proceedings shall be considered as a
       part of the record on appeal unless one of the following applies:

       (1)      The court reporter has certified the transcript as provided in subsection (B)
       of this rule;

       (2)   The record contains an entry of the trial court appointing the court reporter
       who has certified the transcript;

       (3)    The transcript is a part of the original papers and exhibits filed in the trial
       court;

       (4)    The transcript has been incorporated into an App.R. 9(C) statement that
       has been approved by the trial court; or,

       (5)     The court of appeals has granted a motion to supplement the record with a
       transcript that was filed in a prior appeal.

Loc.R. 6(B) provides in part that, “[t]he certificate of the court reporter selected by the trial

court, pursuant to App.R. 9, must be signed by the court reporter and must reflect the court

reporter’s appointment by the trial court.”

       {¶23} While there is a transcript of the September 21, 2015 contempt hearing in the

appellate file, we conclude that it fails to satisfy Loc.R. 6(C) and accordingly cannot be

considered part of the record. The certification of the notary who transcribed the hearing does

not indicate in any manner that she was appointed by the trial court. See Loc.R. 6(B), (C)(1);

App.R. 9(B)(2); see also Shumate v. Shumate, 9th Dist. Lorain No. 09CA009707, 2010-Ohio-

5062, ¶ 6-9; Salas v. Velez, 9th Dist. Lorain No. 09CA009627, 2010-Ohio-702, ¶ 7-10; In re

T.C., 9th Dist. Lorain Nos. 07CA009248, 07CA009253, 2008-Ohio-2249, ¶ 18-21. Nor does the

record contain an entry appointing the notary as the court reporter for purposes of the appeal.
                                                 12


See Loc.R. 6(C)(2). Further, none of the other provisions of Loc.R. 6(C) have been satisfied

here.

        {¶24} Because the transcript of the September 21, 2015 contempt hearing is necessary to

resolve the merits of these assignments of error, and none is properly in the record before us, we

are required to presume regularity in the trial court’s proceedings. See Zaryki, 2016-Ohio-7086,

at ¶ 15. Therefore, we overrule Mr. Pietrangelo’s first, fourth, fifth, sixth, seventh, eighth, ninth,

tenth, and twelfth assignments of error on that basis.

                                 ASSIGNMENT OF ERROR II

        [THE TRIAL COURT] NON-RANDOMLY PRESIDED OVER SEVEN
        CONTEMPORANEOUS BUT SEPARATE LORAIN COUNTY COURT OF
        COMMON PLEAS CASES INVOLVING [MR.] PIETRANGELO,
        INCLUDING THE INSTANT CASE.

                                ASSIGNMENT OF ERROR XIII

        [THE TRIAL COURT] HELD A HEARING IN ABSENTIA OF [MR.]
        PIETRANGELO AND WITHOUT NOTICE TO HIM[.]

                                ASSIGNMENT OF ERROR XIV

        [THE TRIAL COURT] WRONGLY FOUND THAT [MR.] PIETRANGELO
        HAS BEEN TELEPHONICALLY NOTIFIED/DULY NOTIFIED OF THE
        HEARING, THAT [MR.] PIETRANGELO TOLD COURT STAFF HE WOULD
        NOT BE APPEARING FOR THE HEARING, AND THAT [MR.]
        PIETRANGELO HAD NOT COMPLIED WITH LEGITIMATE DISCOVERY
        REQUESTS[.]

                                ASSIGNMENT OF ERROR XV

        [THE TRIAL COURT] SCHEDULED DEPOSITIONS FOR [MR.]
        PIETRANGELO AND HIS BROTHER WITHOUT REASONABLE NOTICE
        AND WITHOUT A SUBPOENA FOR THE LATTER[.]

                                ASSIGNMENT OF ERROR XVI

        [THE TRIAL COURT] DENIED THE PIETRANGELOS’ EMERGENCY
        MOTION FOR A PROTECTIVE ORDER AND TO QUASH THE
        DEPOSITIONS, AND THEN LATER IMPLICITLY SUMMARILY
        OVERRULED THEIR DEPOSITION OBJECTIONS[.]
                                              13


                             ASSIGNMENT OF ERROR XVII

       [THE TRIAL COURT] HEARD AND GRANTED AVON LAKE’S
       SEPTEMBER 3, 2015 MOTION TO COMPEL, INCLUDING IN VIOLATION
       OF THE PIETRANGELOS’ RIGHT TO RESPOND AND RIGHT TO REVIEW
       THEIR DEPOSITION TRANSCRIPTS.

       {¶25} Mr. Pietrangelo challenges various interlocutory orders in his second, thirteenth,

fourteenth, fifteenth, sixteenth, and seventeenth assignments of error. However, in light of our

determination that dismissal of the case was void in light of the pending appeal in case no.

15CA010804, review of these interlocutory orders is premature and we decline to address them.4

Appeal No. 15CA010804 – Medical Authorization Form Appeal

                                ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN
       ISSUING THE FOLLOWING ORDER/JUDGMENT ENTRY:

       THE   COURT    HAS  THOROUGHLY     REVIEWED  THE  “THE
       AUTHORIZATION FOR DISCLOSURE OF PROTECTED HEALTH
       INFORMATION[.”] THE COURT FINDS THAT IT IS REASONABLE,
       CONTAINS MULTIPLE SAFEGUARDS, AND PROTECTS [MR.
       PIETRANGELO].   ALLOCATION OF ULTIMATE COSTS WILL BE
       ADDRESSED AT CONCLUSION OF THIS CASE.

       CONSISTENT WITH R.C. 2317.02 [MR. PIETRANGELO] IS ORDERED TO
       EXECUTE THE AUTHORIZATION AND RESPOND TO DISCOVERY
       REQUESTS. BY FILING THIS ACTION, [MR. PIETRANGELO] HAS
       WAIVED PHYSICIAN-PATIENT PRIVILEGE. FAILURE TO EXECUTE
       THE AUTHORIZATION FORM AND CO-OPERATE IN DISCOVERY
       RELATIVE TO THE MEDICAL RECORDS WILL RESULT IN SANCTIONS



       4
          We acknowledge that under Smith v. Chester Twp. Bd. of Trustees, 60 Ohio St.2d 13
(1979), syllabus (“Where a non-appealable interlocutory order results in a judgment of contempt,
including fine or imprisonment, such a judgment is a final and appealable order and presents to
the appellate court for review the propriety of the interlocutory order which is the underlying
basis for the contempt adjudication.”), Mr. Pietrangelo’s seventeenth assignment of error might
be reviewable. However, in light of the absence of a transcript of the contempt hearing in this
Court’s record, we cannot conclusively conclude that the trial court’s ruling on the motion to
compel resulted in the judgment of contempt. Thus, we decline to address the merits of that
argument.
                                                14


       TO INCLUDE, BUT NOT LIMITED TO, STRIKING CLAIMS AND
       EVIDENCE RELATIVE TO “MEDICAL CONDITIONS[.”]

       [MR. PIETRANGELO] TO RETURN THE EXECUTED AUTHORIZATION
       FORM TO DEFENSE COUNSEL ON OR BEFORE JULY 8, 2015.

       {¶26} In Mr. Pietrangelo’s sole assignment of error in the appeal in case no.

15CA010804, Mr. Pietrangelo challenges the trial court’s judgment ordering him to execute a

medical authorization form.

       {¶27} While generally discovery orders are not immediately appealable, orders for the

disclosure of privileged matters can fall within an exception to the general rule. Miller, 2015-

Ohio-280, at ¶ 10. This Court has previously concluded that an order requiring a party to

authorize access to his medical records constitutes a final, appealable order. See id. at ¶ 13.

Thus, we conclude we have jurisdiction over this appeal.

       {¶28} Avon Lake has argued that this issue is waived or moot because Avon Lake

agreed to proceed to trial without having the records. However, Avon Lake’s willingness to

proceed to trial without the records does not alter the fact that there is still a trial court order

requiring Mr. Pietrangelo to sign the medical authorization form. Avon Lake has not sought to

vacate that order. Thus, Avon Lake has not convinced us that this issue is moot.

       {¶29} Mr. Pietrangelo essentially makes three arguments under this assignment of error:

(1) the trial court failed to comply with due process requirements in issuing its order; (2)

requiring Mr. Pietrangelo to execute the medical authorization violated the civil rules; and (3) the

medical authorization form was too broad in scope.

       {¶30} Because we determine the first argument is dispositive, we decline to address the

remaining arguments. “The right to procedural due process is guaranteed by the Fourteenth

Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution.
                                                 15


This Court has previously stated that [a]t a minimum, the constitutional guarantee of due process

requires that deprivation of life, liberty or property by adjudication be preceded by notice and

opportunity for hearing appropriate to the nature of the case.” (Internal quotations and citations

omitted.) Sigler v. Arvay, 9th Dist. Summit No. 21099, 2002-Ohio-6762, ¶ 10.

       {¶31} In June 2015, the trial court issued an order requiring Avon Lake to forward to the

trial court a copy of the medical authorization it sought from Mr. Pietrangelo, detailing the

authorization’s “scope, cost assessment, and authority for same on or before June 24, 2015.”

The trial court indicated that “[t]he response [wa]s due on or before July 2, 2015.” On June 15,

2015, Avon Lake filed a response to Mr. Pietrangelo’s request for an extension of time to reply

to certain discovery requests. Attached to that response was a copy of the medical authorization

form. However, that response did not discuss the points mentioned in the trial court’s order. On

June 26, 2015, Avon Lake filed its “statement on proposed medical authorization for [Mr.

Pietrangelo’s] medical records[.]” Less than three hours later, the trial court issued an order

finding the medical authorization to be “reasonable” as it contained “multiple safeguards and

protect[ed] [Mr. Pietrangelo].”     The trial court ordered Mr. Pietrangelo “to execute the

authorization and respond to discovery requests.” The trial court required the authorization to be

completed by July 8, 2015, and indicated that failure to do so would result in sanctions. On June

30, 2015, Mr. Pietrangelo responded in opposition.

       {¶32} Here, the trial court ordered Mr. Pietrangelo to execute the medical authorization

form without giving him an opportunity to respond to Avon Lake’s arguments. The trial court

ordered Avon Lake to submit the medical authorization form and its arguments related to it by

June 24, 2015; Avon Lake did respond, but did not do so until June 26, 2015. Later that same

day, the trial court issued the order requiring Mr. Pietrangelo to execute the form, despite the fact
                                                 16


that the trial court indicated that he would have until July 2, 2015, to submit a response.

“Fundamental due process principles require that each party have the opportunity to be heard

prior to a trial court rendering a decision.” Equable Ascent Fin. v. Ybarra, 9th Dist. Lorain No.

12CA010190, 2013-Ohio-4282, ¶ 6. Given the circumstances of this case, we conclude the trial

court committed reversible error in issuing its decision prior to allowing Mr. Pietrangelo an

opportunity to respond to Avon Lake’s arguments. See id. at ¶ 9.

       {¶33} To the extent Mr. Pietrangelo has asserted that the trial court erred in requiring

him to execute the medical authorization form because the trial court failed to comply with due

process requirements, we sustain his assignment of error.          As the trial court has not yet

considered the merits of Mr. Pietrangelo’s arguments in response to Avon Lake’s request for him

to execute the medical authorization form, that issue is not properly before us at this time.

                                                III.

       {¶34} With respect to case no. 15CA010804, we sustain Mr. Pietrangelo’s assignment of

error to the extent discussed above. The matter is remanded for the trial court to consider Mr.

Pietrangelo’s memorandum in response already filed in the trial court. With respect to case no.

15CA010873, we lack jurisdiction to consider Mr. Pietrangelo’s eleventh assignment of error

and dismiss the appeal to that extent, we sustain Mr. Pietrangelo’s third assignment of error to

the extent discussed above, vacate the trial court’s dismissal of the action, and remand for

proceedings consistent with this opinion, we overrule Mr. Pietrangelo’s first, fourth, fifth, sixth,

seventh, eighth, ninth, tenth, and twelfth assignments of error, and we decline to address the

merits of Mr. Pietrangelo’s second, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth

assignments of error.
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                                                                           Appeal dismissed in part,
                                                                          judgment affirmed in part,
                                                                                    vacated in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.



                                                     CARLA MOORE
                                                     FOR THE COURT

WHITMORE, J.
SCHAFER, J.
CONCUR.

APPEARANCES:

JAMES E. PIETRANGELO, II, pro se, Appellant.

MARGARET M. KOESEL and TRACEY L. TURNBULL, Attorneys at Law, for Appellee.

ABRAHAM LIEBERMAN, Law Director, and DAVID M. GRAVES, Assistant Law Director,
for Appellee.
