[Cite as Jones v. Gori, 2018-Ohio-4655.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




 KATHLEEN JONES,                                 :

        Plaintiff-Appellee,                      :      CASE NO. CA2018-07-068

                                                 :             OPINION
     - vs -                                                    11/19/2018
                                                 :

 RANDY L. GORI, et al.,                          :

        Defendants-Appellants.                   :



         CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                            Case No. 17CV090481



John J. Mueller, 632 Vine Street, Suite 800, Cincinnati, OH 45202, for plaintiff-appellee

Joseph W. Borchelt, Ian D. Mitchell, 525 Vine Street, Suite 1700, Cincinnati, OH 45202, for
defendants-appellants



        S. POWELL, P.J.

        {¶ 1} This case is before the court pursuant to a motion to dismiss appeal for lack

of a final appealable order filed by plaintiff-appellee, Kathleen Jones.       Defendants-

appellants, Randy L. Gori, Gori Julian & Associates, John Barry Julian, Sara M. Salger, Erin

L. Beavers, Martavious Thomas, David Todd Matthews, and Brandon Belt (collectively

"Gori"), oppose Jones' motion to dismiss relying, in part, on this court's prior decision in

Huegemann v. VanBakel, 12th Dist. Fayette No. CA2013-08-022, 2014-Ohio-1888.
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       {¶ 2} On November 22, 2017, Jones filed a legal malpractice suit in the Warren

County Court of Common Pleas naming Gori as the defendants. Jones' legal malpractice

suit stemmed from an underlying asbestos case brought in Illinois involving Jones and her

now deceased husband. Gori subsequently moved to dismiss Jones' suit for lack of

personal jurisdiction. The trial court denied Gori's motion to dismiss on June 7, 2018. In

so holding, the trial court found the factors in favor of dismissing Jones' legal malpractice

suit "for one filed in Illinois do not outweigh the factors in favor of permitting the case to

remain here."

       {¶ 3} On July 6, 2018, Gori filed a notice of appeal from the trial court's decision.

Shortly thereafter, the trial court issued an order deeming its prior decision a final

appealable order; specifically, that its "decision and entry issued by this Court on June 7,

2018 did not properly contain a Civ.R. 58(B) notice to the Warren County Clerk of Courts

that the decision was a final appealable order." In reaching this decision the trial court cited

this court's prior decision in Huegemann.

       {¶ 4} In Huegemann, this court determined that a motion to dismiss for lack of

personal jurisdiction qualified as a provisional remedy under R.C. 2505.02(B)(4), thereby

rendering that decision a final appealable order. In so holding, this court determined that

because foreign defendants from different countries were involved, "the litigation costs and

delay in recovering money from the Huegemanns that appellants undoubtedly will

experience should they ultimately prevail in the litigation are sufficient to establish the

absence of a meaningful and effective remedy for purposes of R.C. 2505.02(B)(4)(b)."

(Emphasis sic.) Id. at ¶ 24.

       {¶ 5} This court's decision in Huegemann has not been relied on by any court

following its release. This court's decision has instead been called into question by two of

our sister districts; namely, the First District Court of Appeals in Gardner v. Ford, 1st Dist.

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Hamilton No. C-150018, 2015-Ohio-4242 and the Eighth District Court of Appeals in

Nejman v. Charney, 8th Dist. Cuyahoga No. 102584, 2015-Ohio-4087. This was due in

part to what the First District characterized in Gardner as "decades of case law to the

contrary." Id. at ¶ 11.

       {¶ 6} In reviewing our decision in Huegemann in light of the contrary holdings

issued by the First and Eighth Districts in Charney and Ford, we find Huegemann was

incorrectly decided. The denial of a motion to dismiss based on lack of personal jurisdiction

does not satisfy the requirements for a provisional remedy because it was directed toward

resolution of the main action itself and does not involve a proceeding ancillary to the main

action as required by R.C. 2505.02(A)(3). Further, as noted by the Ohio Supreme Court,

"[a]bsent a patent and unambiguous lack of jurisdiction, a post-judgment appeal from a

decision overruling a motion to dismiss for lack of personal jurisdiction will provide an

adequate legal remedy[.]" State ex rel. Toma v. Corrigan, 92 Ohio St.3d 589, 591 (2001).

Therefore, based upon the well-settled principle that a trial court's decision denying a motion

to dismiss for lack of personal jurisdiction is not a final appealable order, see Gardener at ¶

11, this court's decision in Huegemann is hereby overruled and will not be followed.

       {¶ 7} The motion to dismiss this appeal for lack of a final appealable order is granted

and this appeal is hereby dismissed with prejudice.

       {¶ 8} Appeal dismissed.


       M. POWELL, J., concurs.


       HENDRICKSON, J. concurs in judgment only.


       HENDRICKSON, J., concurring in judgment only.

       {¶ 9} I agree with this court's decision to grant Jones' motion to dismiss for lack of


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a final appealable order. I write separately, however, to note my disagreement with this

court's decision to overrule Huegemann v. VanBakel, 12th Dist. Fayette No. CA2013-08-

022, 2014-Ohio-1888.

       {¶ 10} This court's decision in Huegemann dealt with a singularly unique set of facts

and circumstances that, in my opinion, obligated this court to find the motion to dismiss for

lack of personal jurisdiction at issue in that case was a final appealable order subject to

review. This is because, as this court stated in Huegemann:

              [G]iven the circumstances of this case in which foreign
              defendants from not just different states but different countries
              are involved, we conclude that the litigation costs and delay in
              recovering money from the Huegemanns that appellants
              undoubtedly will experience should they ultimately prevail in the
              litigation are sufficient to establish the absence of a meaningful
              and effective remedy for purposes of R.C. 2505.02(B)(4)(b).

(Emphasis sic.) Id. at ¶ 24.

This holding was necessary despite the well-settled principle that a trial court's decision

denying a motion to dismiss for lack of personal jurisdiction is not normally considered a

final appealable order.

       {¶ 11} Unlike in Huegemann, this case does not present such a singularly unique set

of facts and circumstances that would necessitate a similar result here. The record in this

case is clear that the parties involved are within close proximity to one another; Jones

residing in Ohio with Gori in Illinois. This is markedly different from Huegemann in which

the foreign defendants were not just from different states but different countries. Therefore,

contrary to the unique facts and circumstances presented in Huegemann, I find under the

facts and circumstances of this case that any litigation costs and delay in recovering money

damages should Jones ultimately prevail in this case are insufficient to establish the

absence of a meaningful and effective remedy for purposes of R.C. 2505.02(B)(4)(b).

       {¶ 12} Such a holding is admittedly fact-based. But, as this court is well-aware, many

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cases turn on the unique facts and circumstances presented for review. The facts and

circumstances, coupled with the applicable law, are then used to issue what this court

believes to be a just and verdant decision. See, e.g., Martin v. Durrani, 12th Dist. Butler

Nos. CA2016-01-022 and CA2016-01-023, 2016-Ohio-5472, ¶ 15 (finding the trial court

abused its discretion by granting appellees' motion for a new trial "based on the unique

facts and circumstances" presented). I see no reason why this court, or any other court,

should abstain from considering the unique facts and circumstances of each case to

determine whether a motion to dismiss for lack of personal jurisdiction constitutes a final

appealable order subject to review.

       {¶ 13} The application of this fact-based test may lead to varying results in seemingly

similar circumstances. However, just as when applying the test to determining whether

offenses are allied offenses of similar import, the application of this test "'may result in

varying results for the same set of offenses in different cases. But different results are

permissible'" when making such an "'inherently subjective determination.'" State v. Ruff,

143 Ohio St.3d 114, 2015-Ohio-99, ¶ 32, quoting State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, ¶ 52. Therefore, considering the great significance that the facts and

circumstances of each case present, I disagree with this court's decision to overrule

Huegemann. This is because, as noted above, the unique facts and circumstances of each

case are critical in determining whether a motion to dismiss for lack of personal jurisdiction

constitutes a final appealable order subject to review.

       {¶ 14} In light of the foregoing, while I agree with this court's decision to granting

Jones' motion to dismiss for lack of a final appealable order in this case, I must concur in

judgment only.




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