[Cite as Irvin v. Eichenberger, 2015-Ohio-4400.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Maxine C. Irvin,                                   :

                 Plaintiff-Appellee,               :
                                                                       No. 15AP-824
v.                                                 :                (C.P.C. No. 14DR-4674)

Raymond L. Eichenberger,                           :               (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                           D E C I S I O N

                                    Rendered on October 23, 2015


                 Petroff Law Offices, LLC, and Erika M. Smitherman, for
                 appellee.

                 Raymond L. Eichenberger, pro se.

                      ON APPLICATION FOR RECONSIDERATION AND
                            MOTION TO CERTIFY A CONFLICT

KLATT, J.
        {¶ 1} Defendant-appellant, Raymond L. Eichenberger, applies to this court
pursuant to App.R. 26(A) for reconsideration of our October 8, 2015 judgment entry
dismissing his appeal for lack of a final appealable order. Appellant also moves to certify a
conflict to the Supreme Court of Ohio pursuant to App.R. 25 and Loc.R. 14 of the Tenth
District Court of Appeals, asserting that a conflict exists between our judgment
concerning the lack of a final appealable order and those of two other appellate districts in
Ohio.
        {¶ 2} Appellant brings this appeal from an order of the Franklin County Court of
Common Pleas, Division of Domestic Relations, granting a motion by appellee to compel
discovery in the parties' divorce case. On June 4, 2015, the domestic relations court
No. 15AP-824                                                                               2

magistrate addressed various discovery requests by the parties and ordered appellant to
produce copies of any wills or trusts in which he was named as a beneficiary. The order
further specified that the documents would be first disclosed to the magistrate for an in
camera review.
       {¶ 3} Appellant filed objections to the magistrate's order. On August 11, 2015, the
trial court put on its entry denying the objections on the basis that appellant had failed to
support his objections with a transcript of the original hearing before the magistrate, and
had incorrectly stated that there had in fact been no such hearing. The trial court noted
that the magistrate's decision states to the contrary that appellant voluntarily departed
after initially appearing at the date and time of the scheduled hearing.
       {¶ 4} Appellant is an attorney duly licensed to practice law in Ohio. In opposition
to appellee's motion to dismiss this appeal, appellant argues that the magistrate's order
requires disclosure of a will and trust agreement that appellant drafted for his now-
deceased mother, and that these documents are protected by attorney-client privilege.
Appellant asserts that the trial court's denial of this privilege in opposition to appellee's
discovery request gives rise to a final appealable order.
       {¶ 5} The test applied to an application for reconsideration is whether the motion
calls to the attention of the court an obvious error in our prior determination or raises an
issue that was not properly considered by the court in the first instance. Matthews v.
Matthews, 5 Ohio App.3d 140 (10th Dist.1981). This rule providing an opportunity to
apply for reconsideration is not intended for instances in which a party simply disagrees
with the reasoning and conclusions of the appellate court. Drs. Kristal & Forche, D.D.S.,
Inc. v. Erkis, 10th Dist. No. 09AP-06, 2009-Ohio-6478, citing State v. Owens, 112 Ohio
App.3d 334, 336 (11th Dist.1996).
       {¶ 6} Appellant's application for reconsideration does not point out an obvious
error in our decision. Because our dismissal seemed to require no explanation, we
initially dismissed the appeal by means of a brief judgment entry. We will now explain
how appellant's arguments were fully considered and rejected before we dismissed the
appeal.
       {¶ 7} Ohio appellate courts have jurisdiction to review only final appealable
orders of lower courts within their districts. Ohio Constitution, Article IV, Section
No. 15AP-824                                                                            3

3(B)(2); R.C. 2501.02. If an order is not a final appealable order, the appellate court
lacks jurisdiction and must dismiss the appeal. Prod. Credit Assn. v. Hedges, 87 Ohio
App.3d 207 (1993).       Appellate courts have the duty to sua sponte examine any
deficiencies in jurisdiction. Price v. Jillisky, 10th Dist. No. 03AP-801, 2004-Ohio-1221.
              R.C. 2505.02(B) defines a final order as follows:
              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.

              (2) An order that affects a substantial right made in a special
              proceeding or upon a summary application in an action after
              judgment;

              (3) An order that vacates or sets aside a judgment or grants a
              new trial;

              (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 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.

       {¶ 8} A "provisional remedy" means a proceeding ancillary to an action, including
discovery of privileged matter. R.C. 2525.02(A)(3). Appellant argues that this is a case
that presents a final appealable order under R.C. 2505.02(A)(3) and (B)(4)(b) because it
requires the discovery of privileged matter, and thereby grants a provisional remedy for
which there would be no meaningful effective redress on subsequent appeal. The general
proposition has merit, albeit not on the present facts:
              R.C. 2505.02(A)(3) is flexible and able to address situations
              where a party has a protectable interest at stake and yet has
              no meaningful ability to appeal the decision which discloses
              that interest to others. If a trial court orders the discovery of
No. 15AP-824                                                                                 4

                trade secrets and such are disclosed, the party resisting
                discovery will have no adequate at 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 & Assocs. v. Pearce, 9th Dist. No. 19358 (Oct. 27, 1999).               This court
applied the same reasoning (and metaphor) to address disclosure of attorney-client
communications or attorney work product: "Communications between an attorney and
his or her client 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.' " Cuervo v. Snell, 10th Dist. No. 99AP-1442 (Sept. 26, 2000).
      {¶ 9} Without passing on whether the documents in question are protected by
attorney-client privilege, we find that the question is not ripe for resolution. The trial
court in this case has yet to compel appellant to disclose the purportedly privileged
documents. The magistrate merely ordered submission of the documents for in-camera
review by the court. The court may then order production of the documents to opposing
counsel, or to the contrary find that the documents are indeed privileged, not relevant, or
otherwise undiscoverable. In other words, the bell is not yet on the point of being rung,
and the appeal is premature. We deny appellant's application for reconsideration.
      {¶ 10} Appellant also moves for certification of this case to the Supreme Court of
Ohio, claiming that our decision is in conflict with those of two other Ohio appellate
districts: Whiteman v. Whiteman, 12th Dist. No. CA94-12-229 (June 26, 1995), and Natl.
City Bank v. Amedia, 118 Ohio App.3d 542 (9th Dist. 1997).
      {¶ 11} Certification is authorized by Article IV, Section 3(B)(4) of the Ohio
Constitution:
                Whenever the judges of a court of appeals find that a
                judgment upon which they have agreed is in conflict with a
                judgment pronounced upon the same question by any other
                court of appeals of the state, the judges shall certify the record
                of the case to the Supreme Court for review and final
                determination.

      {¶ 12} App.R. 25 and Loc.R. 13 of this court reflect the constitutional mandate and
set forth the procedure for certification. Pursuant to these authorities, at least three
No. 15AP-824                                                                                 5

conditions must be met when we certify a case to the Supreme Court. We must first find
that our judgment is in conflict with a judgment of another district and that the asserted
conflict is upon the same question. We must then find that alleged conflict is founded on
a rule of law and not based upon a factual distinction. Finally, if we deem that a conflict
exists, our entry granting certification must clearly set forth the rule of law that we find to
be in conflict between districts. Whitlock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596
(1993). In brief, "there must be an actual conflict between appellate judicial districts on a
rule of law before certification of a case to the Supreme Court for review and final
determination is proper." Id. at paragraph one of the syllabus.
       {¶ 13} Neither Whiteman nor Amedia involves dismissal of an appeal pending in
camera review of allegedly privileged documents. Because we find that our judgment in
this case is not in actual conflict with that of another district, we deny appellant's motion
to certify the case to the Supreme Court of Ohio.
       {¶ 14} In summary, we deny appellant's application for reconsideration and
appellant's motion to certify a conflict.
                                                        Application for reconsideration and
                                                         motion to certify a conflict denied.

                              DORRIAN and BRUNNER, JJ., concur.
