[Cite as Anglin v. Donohoo, 2017-Ohio-7630.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CALINDA ANGLIN, Indivdually and as : APPEAL NO. C-160913
Executor of the Estate of Barbara J. TRIAL NO. A-1605578
Smuland and as Trustee Under the :
Barbara J. Smuland Declaration of
Trust, : O P I N I O N.
Plaintiff-Appellee,
:
vs.
:
DOUGLAS L. DONOHOO,
:
DOUGLAS L. DONOHOO, CPA, LTD.,
:
and
:
EASTGATE MARKETING & TAX
SERVICE, LLC, :
Respondents,
:
and
:
ROSE DONOHOO,
:
JEFFREY BEARD,
:
TRAVIS GARRETT,
:
and
:
SANDY LATHAM,
Respondents-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: September 15, 2017
Reminger Co., L.P.A., and Vince P. Antaki, for Respondents-Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS
M ILLER , Judge.
{¶1} This is an appeal from the partial denial of a motion to dismiss, and a
partial granting of a petition for discovery under Civ.R. 27 allowing appellee Calina
Anglin to depose several individuals, duces tecum, for the purposes of perpetuating
their testimony and determining if Anglin had a cause of action against them.
{¶2} Appellants Rose Donohoo, Jeffrey Beard, Travis Garrett and Sandy
Latham, parties that Anglin sought to depose, assert a single assignment of error that
the trial court erred in denying their Civ.R. 12(B)(6) motion to dismiss Anglin’s
Civ.R. 27 petition for discovery. The essence of the argument is that the petition
should have been dismissed because Anglin failed to establish that she was
attempting to perpetuate testimony, the petition did not “meet the requirements of
R.C. 2317.48 and Civ.R. 34(D),” and the petition “rests entirely upon a falsehood.”
We do not reach the merits of this appeal.
{¶3} We recently held that the denial of a motion to dismiss a petition
for discovery under Civ.R. 34(D) is not a final appealable order. Bright Future
Partners, Inc. v. Proctor & Gamble Distrib., L.L.C., 1st Dist. Hamilton No. C-160589,
2017-Ohio-4145, ¶ 9. This holding applies equally to a petition for discovery under
Civ.R. 27. The partial denial of the motion to dismiss did not determine the action
and prevent a judgment in appellants’ favor. See id. The partial denial of the motion
to dismiss, and partial granting of the petition, merely provided that the requested
“depositions may then be taken in accordance with these rules.” Civ.R. 27(A)(3).
Appellants retained full rights to defend the depositions as permitted by Civ.R. 26, 27
and 30, and appeal any issues that may arise to the same extent as permitted in
discovery in any other civil action. To allow premature appeals would thwart the
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OHIO FIRST DISTRICT COURT OF APPEALS
entire purpose of petitions for discovery—to allow for a potential plaintiff to
determine if she has a claim prior to asserting the claim.
{¶4} Accordingly, this appeal is dismissed.
Appeal dismissed.
M OCK , P.J., and C UNNINGHAM , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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