Bay Emm Vay Store, Inc. v. BMW Fin. Serv. NA, L.L.C. , 116 N.E.3d 858 ( 2018 )

[Cite as Bay Emm Vay Store, Inc. v. BMW Fin. Serv. NA, L.L.C., 2018-Ohio-2736.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The Bay Emm Vay Store, Inc., :
Petitioner-Appellant, :
No. 17AP-786
v. : (C.P.C. No. 17CV-8322)
BMW Financial Services NA, L.L.C., : (REGULAR CALENDAR)
Respondent-Appellee. :
D E C I S I O N
Rendered on July 12, 2018
On brief: Rittgers & Rittgers, Konrad Kircher, and Ryan J.
McGraw, for appellant. Argued: Konrad Kircher.
On brief: Thompson Hine LLP, and Terry W. Posey, Jr., for
appellee. Argued: Terry W. Posey, Jr.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Petitioner-appellant, The Bay Emm Vay Store, Inc., appeals from the decision
of the Franklin County Court of Common Pleas denying its petition for pre-suit discovery
under Civ.R. 34(D), in which appellant sought the production of documents from
respondent-appellee, BMW Financial Services NA, L.L.C. For the reasons set forth below,
the decision of the trial court is affirmed.
{¶ 2} On September 14, 2017, appellant filed a petition with the trial court bearing
the caption "Petition for Pre-Suit Discovery Pursuant to Civ.R. 34(D) and R.C. 2317.48."
The petition alleged that appellant was a BMW and Mini automobile dealership in
Cincinnati, Ohio, and that appellee was a division of BMW that maintained databases
containing "confidential and proprietary" information of dealerships. According to
appellant, two of its salespersons, Ed Besl and Chris Lykins, suddenly resigned and went to
No. 17AP-786 2
work for a competing dealership, BMW of Cincinnati North, in August 2016. Appellant
alleged that Besl and Lykins "accessed and exploited the confidential and proprietary data
base" of appellant that appellee maintained with the purpose of "divert[ing]" appellant's
customers to them. (Petition at 2.) Appellant stated that it was considering bringing suit
against Besl, Lykins, and BMW of Cincinnati North, but that it could not do so because
appellee had refused to provide it with certain information. Thus, appellant requested that
the trial court grant its request to order appellee to produce any documents in its possession
showing that Besl or Lykins had accessed or printed portions of appellant's database
between June 1, and August 24, 2016.
{¶ 3} The trial court denied the motion on October 25, 2017. The trial court noted
that actions under R.C. 2317.48 were limited to answers to interrogatories, and that
appellant had requested an order for the production of documents.1 The trial court also
determined that, because appellant was already aware of the identity of the persons that it
intended to sue, the request fell outside the scope of Civ.R. 34(D). Accordingly, the trial
court denied the petition and dismissed the case.
{¶ 4} Appellant now appeals and asserts the following assignment of error:
The Court erred in dismissing the Petition, as Civ.R. 34(D)
permits pre-suit discovery to determine whether a cause of
action exists.
{¶ 5} Before reaching appellant's assignment of error, we must address the issue of
this court's jurisdiction as appellee contends that the trial court's dismissal did not result in
a final appealable order.
{¶ 6} Under Article IV, Section 3(B)(2) of the Ohio Constitution, courts of appeal
"have such jurisdiction as may be provided by law to review and affirm, modify, or reverse
judgments or final orders" from the courts of common pleas. To qualify as a final order that
invokes the jurisdiction of an appellate court, an order must satisfy one of the definitions
set forth under R.C. 2505.02. Under R.C. 2505.02(B)(1), a final order may be "[a]n order
that affects a substantial right in an action that in effect determines the action and prevents
a judgment."
1 Appellant has not appealed the trial court's ruling that it was not entitled to discovery under R.C. 2317.48.
No. 17AP-786 3
{¶ 7} We have previously held that an order granting a petition for discovery under
Civ.R. 34(D) satisfies the R.C. 2505.02(B)(1) definition, and is therefore a final appealable
order. Kenneth's Hair Salons & Day Spas, Inc. v. Braun, 10th Dist. No. 17AP-816, 2018-
Ohio-186, ¶ 21; Lieberman v. Screen Machine Advertising Specialties & Screen Print
Design, 10th Dist. No. 96APE05-665 (Feb. 4, 1997). In Lieberman, we considered the
granting of a Civ.R. 34(D) petition to affect a substantial right, reasoning as follows:
The trial court's order granting the petition for pre-complaint
discovery compels respondents to disclose private information
to petitioner. While it is true that the discovery rules generally
require that the right to be free from the unwanted disclosure
of private information yield where such information is
necessary to another's lawsuit, the right to non-disclosure is
nonetheless a legal right enforced and protected by law.
Consequently, the trial court's order compelling disclosure of
private information affects a substantial right.
Id. at 8.
{¶ 8} This case raises the converse question: does an order denying a Civ.R. 34(D)
petition for discovery affect "a substantial right in an action that in effect determines the
action and prevents a judgment," thereby complying with the definition of a final
appealable order under R.C. 2505.02(B)(1)? The reasoning in Lieberman touches on two
substantial rights: one party's right to access to another party's information, as granted by
the rules of discovery, as well as the responding party's right to non-disclosure of that
information. While the rights are in opposition to one another and by definition conflict,
they are both substantial nevertheless.
{¶ 9} Furthermore, an order denying a Civ.R. 34(D) request for the production of
documents is determinative of the limited action for discovery allowed by the rule. In
Lieberman, we stated: "The grant of the petition compelled respondents to provide the
requested discovery. With that, petitioner had obtained all he had asked for and
respondents had no opportunity for a favorable judgment." Id. at 8-9. The assumption
underlying this statement is that the denial of a Civ.R. 34(D) petition creates a favorable
judgment for the respondent and an unfavorable one for a petitioner such as appellant.
Adopting this reasoning, we hold that an order denying a petition for discovery is a final
appealable order under R.C. 2505.02(B)(1).
No. 17AP-786 4
{¶ 10} Appellee argues that neither of the definitions of a final order under R.C.
2505.02(B)(2) or 2505.02(B)(4) applies to the trial court's order, but does not address the
R.C. 2505.02(B)(1) definition or the application of that definition to a trial court's Civ.R.
34(D) ruling under our holdings in Kenneth's Hair Salons or Lieberman. We agree that the
definition under R.C. 2505.02(B)(2) does not apply because it only applies to a "special
proceeding," which, under R.C. 2505.02(A)(2), must be "specially created by statute."
Appellee also argues that R.C. 2505.02(B)(4) only applies to a "provisional remedy," which
is a "proceeding ancillary to an action, including, but not limited to, a proceeding for a
preliminary injunction, attachment, discovery of privileged matter, [or] suppression of
evidence." (Appellee's brief at 3-4); R.C. 2505.02(A)(3). According to appellee, each of these
examples only "occur[s] during a pending action," and under Civ.R. 3(A), a civil action may
only be commenced by the filing of a complaint. (Appellee's brief at 4.) Although we have
not applied the R.C. 2505.02(B)(4) definition of final order, we note that the examples in
the statutory definition of provisional remedy are "not limited to" those provided.
Furthermore, all of the definitions in the final order statute, R.C. 2505.02, use the phrase
"an action," a broader term than "civil action" under Civ.R. 3(A). See White v. Equity, Inc.,
178 Ohio App. 3d 604, 2008-Ohio-5226, ¶ 12 (10th Dist.) (describing a Civ.R.34(D) petition
filed before arbitration as "an auxiliary action"). Thus, we disagree with appellee's
contention that any of the definitions of final order under R.C. 2505.02, including the one
we apply in this case under R.C. 2505.02(B)(1), are limited to civil actions filed under Civ.R.
3(A).
{¶ 11} Having resolved the question of our jurisdiction over this appeal, we turn to
appellant's contention that the trial court erred by denying its petition for discovery under
Civ.R. 34(D). We apply an abuse of discretion standard to review a trial court's discovery
rulings. State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children & Family Servs., 110 Ohio
St.3d 343, 2006-Ohio-4574, ¶ 9.
{¶ 12} Under Civ.R. 34(D), "a person who claims to have a potential cause of action
may file a petition to obtain discovery" before filing a lawsuit. In order to issue an order
authorizing the petitioner to obtain the requested discovery, the trial court must find all of
the following:
(a) The discovery is necessary to ascertain the identity of a
potential adverse party;
No. 17AP-786 5
(b) The petitioner is otherwise unable to bring the
contemplated action;
(c) The petitioner made reasonable efforts to obtain
voluntarily the information from the person from whom the
discovery is sought.
Civ.R. 34(D)(3).
{¶ 13} Here, the trial court denied the petition because appellant did not need to
ascertain the identity of any adverse party. The trial court did not err in this ruling. As the
rule states, "all" of the listed requirements must be met in order for the trial court to issue
the discovery ruling. Civ.R. 34(D)(3). The necessity of identifying an adverse party is the
first requirement and appellant concedes that it already knows who to sue. Thus, under the
plain language of the rule, appellant is not entitled to an order of pre-suit discovery.
{¶ 14} Appellant argues that it is still entitled to discovery under Civ.R. 34(D), citing
White v. Equity, Inc., 178 Ohio App. 3d 604, 2008-Ohio-5226, ¶ 15 (10th Dist.). In White, a
petitioner filed requests for discovery under R.C. 2317.48 and Civ.R. 34(D) before initiating
arbitration proceedings, hoping to discover facts relevant to the claims she was going to
pursue in arbitration. We held that it was error for the trial court to issue the stay without
determining whether the petitioner's discovery requests were subject to arbitration and
remanded the matter to the trial court. Id. at 611-12. We "specifically decline[d]" to address
the merits of the Civ.R. 34(D) petition and the respondents' arguments against granting it,
including their argument that the rule was "inapplicable because appellant [knew] the
identity of potential adverse parties." Id. at 611.
{¶ 15} Appellant cites our observation in White that "Civ.R. 34(D) acts as a
safeguard against charges that a plaintiff filed a frivolous claim where the alleged
wrongdoer or a third party has the ability to conceal facts that the plaintiff needs to
determine the identity of the wrongdoer or exactly what wrong occurred." Id., citing Benner
v. Walker Ambulance Co., 118 Ohio App. 3d 341 (6th Dist.1997). Appellant emphasizes the
phrase "or exactly what wrong occurred," arguing that it authorizes pre-litigation discovery
to pursue facts showing whether a party has a viable cause of action at all. (Appellant's brief
at 22-23.)
No. 17AP-786 6
{¶ 16} Our inclusion of the phrase "or exactly what wrong occurred" in this
explanation of the purpose of the rule does not enlarge the scope of what discovery a
petitioner may seek under Civ.R. 34(D)(3). Such an interpretation would have the effect of
erasing the rule's first requirement that the discovery must be "necessary to ascertain the
identity of a potential adverse party." Civ.R. 34(D)(3)(1). The phrase emphasized by
appellant is simply a description of what a wrongdoer may have concealed from the
petitioner, in addition to the identity of a potential party. Furthermore, our actual holding
in White concerned the trial court's decision to issue a stay or the Civ.R. 34(D) petition, not
whether the petitioner was entitled to discovery with actual knowledge of the adverse
parties. Id. at 611-12. As discussed, White declined to address that specific issue. Because
White does not enlarge the scope of authorized discovery under Civ.R. 34(D), and because
appellant did not require pre-litigation discovery to determine the identity of an adverse
party, appellant has not demonstrated that the trial court erred by denying its petition.
{¶ 17} For the foregoing reasons, the trial court's Civ.R. 34(D) ruling was a final
appealable order under R.C. 2505.02(B)(1), and the trial court did not err by denying the
petition because appellant did not seek discovery to "ascertain the identity of a potential
adverse party," as required by Civ.R. 34(D)(3)(1). Accordingly, the assignment of error is
overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN and BRUNNER, JJ., concur.
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