[Cite as In re Estate of Adkins, 2016-Ohio-5602.]




                         IN THE COURT OF APPEALS OF OHIO
                            FOURTH APPELLATE DISTRICT
                                 LAWRENCE COUNTY


                                                    :    Case No. 16CA22
In the Matter of:
                                                    :
The Estate of:                                           DECISION AND
                                                    :    JUDGMENT ENTRY
Barry Michael Adkins
                                                    :    RELEASED: 8/24/16


                                        APPEARANCES:

Craig A. Allen, Ironton, Ohio, for Appellant Robert Payne, Administrator of the
Estate of Barry Michael Adkins.

Kevin J. Waldo, Ironton, Ohio, for Appellee Frederick Craft, Jr.


Harsha, A.J.

        {¶1}     Appellant Robert Payne, Administrator of the Estate of Barry

Michael Adkins (“the Administrator”) filed a notice of appeal from the Lawrence

County Common Pleas Court, Probate-Juvenile Division’s judgment entry

granting a motion to quash the subpoena issued to Appellee Frederick Craft, Jr.

Upon review of the notice of appeal, this Court issued a Magistrate’s Order

directing the parties to file memoranda addressing whether the challenged entry

is a final appealable order. Both parties have complied with the order. Upon

consideration, the Court finds that the appealed entry is not a final appealable

order and DISMISSES this appeal.
Lawrence App. No. 16CA22                                                           2


                                             I.

       {¶2}   In this probate matter the Administrator served a subpoena on a

non-party - Mr. Craft - demanding that he appear at counsel’s office and bring

with him “any and all personal bank account record and/or any other personal

financial records for which [Mr. Craft] claim[ed] any deposits or expenditures

concerning Tri-State Realty & Rental, Inc. and/or The Estate of Margret Adkins

and/or The Estate of Barry Adkins.” Following a hearing and the filing of

memorandum of law, the trial court found no evidence that Mr. Craft had in his

possession, custody or control any records in which Mr. Craft claims to have

made any deposit or expenditure concerning The Estate of Barry Adkins (“the

Estate”). The court also noted that the Estate had not brought a civil action

against Mr. Craft and that Tri-State Realty & Rental, Inc. is a corporation in which

the Estate may claim ownership of certain shares of stock, but the Estate and the

corporation are separate legal entities.

       {¶3}   The trial court further noted that Mr. Craft’s personal records

are not relevant to the pending case involving the Estate and that financial

matters related to Tri-State Realty & Rental, Inc. could be pursued in a

court with jurisdiction over corporate matters. And, any financial matters

related to The Estate of Margaret Adkins must be raised in that probate

court case. Based on these findings, the Court granted the motion to

quash the subpoena.

                                            II.
Lawrence App. No. 16CA22                                                            3


       {¶4}   It is well established that an order must be final before it can be

reviewed by an appellate court. See Section 3(B)(2), Article IV of the Ohio

Constitution. See, also, General Acc. Ins. Co. v. Insurance Co. of North

American, 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). If an order is not final

and appealable, then an appellate court has no jurisdiction to review the matter

and must dismiss the appeal. Lisath v. Cochran, 4th Dist. No. 92CA25, 1993 WL

120627 (Apr. 15, 1993); In re Christian, 4th Dist. No. 1507, 1992 WL 174718

(July 22, 1992).

       {¶5}   Moreover, appellate courts are not bound by a trial court’s

determination or statement that a judgment constitutes a final appealable order.

See Ft. Frye Teachers Assn. v. Ft. Frye Local School Dist. Bd. of Edn., 87 Ohio

App.3d 840 (4th Dist. 1993). Therefore, the trial court’s statement that the entry is

a “final appealable order” is not binding on us.

                                             A.

       {¶6}   R.C. 2505.02(B) states:

              An order is a final order that may be reviewed,
              affirmed, modified, or reversed, with or without retrial,
              when it is one of the following:

              (1)    An order that affects a substantial right in an
              action that in effect determines the action and
              prevents a judgment;

                   *        *      *

              (4)  An order that grants or denies a provisional
              remedy 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
Lawrence App. No. 16CA22                                                                4


              judgment in the action in favor of the appealing party
              with respect to the provisional remedy.

              (b) The appealing party would not be afforded a
              meaningful or effective remedy by an appeal following
              final judgment as to all proceedings, issues, claims,
              and parties in the action.

                                           B.

       {¶7}   The Administrator argues that the trial court’s entry is a final

appealable order under R.C. 2505.02(B)(1), i.e. that it affects a substantial right.

A “substantial right” is “a right that the United States Constitution, the Ohio

Constitution, a statute, the common law, or a rule of procedure entitles a person

to enforce or protect.” R.C. 2505.02(A)(1). The Administrator contends that it has

a “substantial right” because Civ.R. 26(c) which requires that a movant for a

protective order first make a reasonable effort to resolve the matter through

discussion and attach a statement reciting the effort made to its motion for a

protective order. “An order affects a substantial right if, in the absence of an

immediate appeal, one of the parties would be foreclosed from appropriate relief

in the future.” Koroshazi v. Koroshazi, 110 Ohio App.3d 634, 640 (9th Dist.

1996), citing Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181

(1993).

       {¶8}   The Administrator has not demonstrated that it would be foreclosed

from appropriate relief in the future to enforce Civ.R. 26(c), i.e. following a final

determination of the probate estate, such that the trial court’s entry affects a

substantial right. “In some instances, ‘the proverbial bell cannot be unrung and

an appeal after final judgment on the merits will not rectify the damage’ suffered
Lawrence App. No. 16CA22                                                               5


by the appealing party.” In the Matter of Tracy M., 6th Dist. Huron No. H-04-028,

2004-Ohio-5756, at ¶ 25 (citations omitted). For example, the disclosure of

privileged information cannot be undone absent an immediate appeal. See, e.g.,

Nash v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 92564, 2010-Ohio-10, at

¶ 11 (“once the allegedly privileged information is disclosed, appellants cannot

effectively appeal the decision”). However, the grant of a motion to quash a

subpoena is very different than the denial of such a motion in that it prevents the

release of information rather than requiring it.

       {¶9}   Further, the Administrator has not shown that the trial court’s entry

determines the action and prevents a judgment. “For an order to determine the

action and prevent a judgment for the party appealing, it must dispose of the

whole merits of the cause or some separate and distinct branch thereof and

leave nothing for the determination of the court.” Hamilton Cty. Bd. of Mental

Retardation & Developmental Disabilities v. Professionals Guild of Ohio, 46 Ohio

St.3d 147, 545 N.E.2d 1260 (1989). The trial court’s entry does not resolve the

merits of the case or a distinct branch of the case; rather, it resolves a discovery

dispute. Therefore, it does not determine the probate action or prevent a

judgment in the case.

       {¶10} Accordingly, the trial court’s entry does is not a final appealable

order under R.C. 2505.02(B)(1).

                                          C.

       {¶11} Although the Administrator does not address R.C. 2505.02(B)(4) in

its memorandum, most courts considering whether an entry addressing discovery
Lawrence App. No. 16CA22                                                             6


is a final appealable order have done so under this provision. The requirements

of R.C. 2505.02(B)(4) are met if the order grants or denies a provisional remedy,

the order both determines the action with respect to the provisional remedy and

prevents a judgment in favor of the appealing party with respect to the provisional

remedy, and the appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment. Northeast Professional Home

Care, Inc. v. Advantage Home Health Services, Inc., 188 Ohio App.3d 704, 2010-

Ohio-1640, 936 N.E.2d 964 (5th Dist.), at ¶ 28.

       {¶12} The Fifth, Eighth and Tenth Districts have all held that an order

denying a motion to quash a subpoena served on a non-party is a final

appealable order. See Scott Process Systems, Inc. v. Mitchell, 5th Dist. Stark No.

2012CA00021, 2012-Ohio-5971, at ¶¶ 23-24; Tisco Trading USA, Inc. v.

Cleveland Metal Exchange, Ltd., 8th Dist. Cuyahoga No. 97114, 2012-Ohio-493;

and Foor v. Huntington Natl. Bank, 27 Ohio App.3d 76, 499 N.E.2d 11297 (10th

Dist. 1986). In reaching this conclusion, the 10th District Court of Appeals noted

that a nonparty witness has no recourse from a motion overruling the motion to

quash a subpoena duces tecum other than an appeal from the order. Foor at 77-

78. However, this same reasoning would not apply when a nonparty’s motion to

quash a subpoena is granted.

       {¶13} We conclude that the Administrator can be afforded a meaningful

and effective remedy at the conclusion of the probate case in this instance. If the

Administrator can establish that the motion to quash should have been overruled,

this Court can remand the matter for further discovery proceedings. See, also, In
Lawrence App. No. 16CA22                                                            7


the Matter of Tracy M., 6th Dist. Huron No. H-04-028, 2004-Ohio-5756 (order

granting high school’s motion to quash subpoena for alleged assault victim’s

school records was not final appealable order because any error could be

remedied by ordering a new trial).

      {¶14} For these reasons, we find that the entry being appealed is not a

final appealable order and DISMISS this appeal. The clerk shall serve a copy of

this entry on all counsel of record and unrepresented parties at their last known

addresses by ordinary mail. SO ORDERED.

APPEAL DISMISSED. COSTS TO APPELLANT. ANY PENDING MOTIONS
ARE DENIED AS MOOT. SO ORDERED.

McFarland, J. & Hoover, J.: Concur.


                                                FOR THE COURT

                                                ________________________
                                                William H. Harsha
                                                Administrative Judge
