Opinion
Nos. 29160 29161
11-02-2021
IN RE: DISINTERMENT OF Marion J. GLASS, Deceased In re: Disinterment of Irene J. Glass, Deceased
Anthony Graber, Robert Hollencamp, Young & Alexander Co. LPA, 130 W. Second Street, Suite 1500, Dayton, Ohio 45402, Attorney for Appellant, The Calvary Cemetery Association of Dayton, Ohio. Julia Meister, Taft Stettinius & Hollister LLP, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202, Attorney for Appellees, Roger Glass and Carol Pollack. Robert Dunlevey, Jr., Christopher Wolcott, Taft Stettinius & Hollister LLP, 40 N. Main Street, Suite 1700, Dayton, Ohio 45423, Attorneys for Appellees, Roger Glass and Carol Pollack. Richard Talda, Joshua Lounsbury, Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, Ohio 45402, Attorneys for Appellee, Kathleen Glass.
Anthony Graber, Robert Hollencamp, Young & Alexander Co. LPA, 130 W. Second Street, Suite 1500, Dayton, Ohio 45402, Attorney for Appellant, The Calvary Cemetery Association of Dayton, Ohio.
Julia Meister, Taft Stettinius & Hollister LLP, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202, Attorney for Appellees, Roger Glass and Carol Pollack.
Robert Dunlevey, Jr., Christopher Wolcott, Taft Stettinius & Hollister LLP, 40 N. Main Street, Suite 1700, Dayton, Ohio 45423, Attorneys for Appellees, Roger Glass and Carol Pollack.
Richard Talda, Joshua Lounsbury, Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, Ohio 45402, Attorneys for Appellee, Kathleen Glass.
DECISION AND ENTRY
PER CURIAM: {¶ 1} These consolidated appeals were instituted by The Calvary Cemetery Association of Dayton, Ohio. Calvary, which is not a party to the underlying proceedings, seeks review of a May 17, 2021 Entry denying its motion to quash a third-party subpoena.
{¶ 2} The underlying actions were filed by Roger Glass. Roger applied to the Probate Court for orders allowing disinterment of the remains of his deceased parents, Marion Glass and Irene Glass, so that they could be reinterred in a new location. Roger's sibling Carol Pollock consents to the applications, while his sibling Kathleen Glass opposes them. The disinterment proceedings are ongoing and not complete.
{¶ 3} Kathleen issued a subpoena duces tecum to Calvary on February 4, 2021. Calvary produced documents in response. On April 1, 2021, Kathleen issued a subpoena and notice of deposition pursuant to Civ.R. 30(B)(5) and 45 for the discovery deposition(s) of Calvary's representative(s). Calvary produced documents, but refused to participate in depositions. Calvary's motions to quash followed. Calvary argued that it was under no obligation to assist in the dispute between Roger and Kathleen under R.C. 2108.83 and R.C. 2108.85 concerning disputes as to disposition.
{¶ 4} The probate court denied the motions. The court found that the two statutes relied on by Calvary do not apply to the disinterment proceedings, and further found that the subpoenas and/or deposition, as limited in scope by Kathleen, do not subject Calvary to an undue burden or seek privileged or protected information from Calvary. Calvary appealed in each case, and we consolidated the two appeals.
{¶ 5} Roger and Carol moved to dismiss the appeals for lack of jurisdiction, arguing that the probate court's Entry is not a final appealable order subject to review at this time. Calvary argued in response that the order is final under two separate divisions of the final order statute. Kathleen, seeking the depositions, did not file a response. Kathleen does ask this court to expedite and/or accelerate the appeal, which Calvary opposes. We conclude that the May 17 Entry is a final order. The appeals will proceed on an expedited schedule.
{¶ 6} An appellate court has jurisdiction to review only final orders or judgments of the lower courts in its district. Section 3(B)(2), Article IV, Ohio Constitution ; R.C. 2505.02. We have no jurisdiction to review an order or judgment that is not final, and must dismiss an appeal taken therefrom. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
{¶ 7} Final orders are defined in R.C. 2505.02. Two provisions of that statute are at issue:
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:
* * *
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after 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 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.
* * *
(Emphasis added.) R.C. 2505.02(B). Calvary argues that both divisions apply. We disagree with respect to the special proceedings division, and agree with respect to the provisional remedy division.
Division (B)(2): An Order that Affects a Substantial Right in a Special Proceeding
{¶ 8} To be considered a final order under R.C. 2505.02(B)(2), the underlying proceeding must be a "special proceeding" as defined in R.C. 2505.02(A)(2) ; the order must involve a "substantial right" as defined in R.C. 2505.02(A)(1) ; and the order must "affect" that substantial right.
{¶ 9} With respect to the first prong, a special proceeding is defined as "an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity." R.C. 2505.02(A)(2). Calvary submits that the underlying disinterment proceedings are special proceedings in that they are created by statute, but does not address the latter part of the definition "that prior to 1853 [the action] was not denoted as an action at law or a suit in equity." Id. We have not found any cases specifically addressing this issue under the final order statute.
{¶ 10} The disinterment proceedings instituted below were brought according to a statutory procedure. The "Application[s] for Order to Disinter Remains" filed by Roger were filed pursuant to Revised Code Sections 517.23 ("Disinterment of remains buried in cemetery") and 517.24 ("Form of application"). The latter statute provides, in part:
Any person who is eighteen years of age or older and of sound mind * * * who wishes to obtain a court order for the disinterment of the remains of the decedent may file an application in the probate court of the county in which the decedent is buried requesting the court to issue an order for the disinterment of the remains of the decedent.
R.C. 517.24(B)(1). These statutes were in a previous form codified in Ohio's 1910 General Code Sections 3467 and 3468. Immediately prior to that, disinterment was governed by a substantially similar Act of May 14, 1894, 91 Ohio Laws 231 This 1894 Act appears to be the genesis point of a statutory action for disinterment in Ohio. However, prior to 1894, disinterment was still regulated and appears to have been allowed where the next of kin or an appropriate governmental entity approved. In particular, a February 28, 1846 "Act to secure the inviolability of places of human sepulture," 44 vol. Stat. 77, prohibited the removal of remains for any purpose, "without the consent of the near relatives of the deceased, if there are any, otherwise without the consent of the trustees of the township" or municipal authorities.
Section 3467 provided:
The trustees or board of any cemetery association, or other officers having control and management of a cemetery, shall disinter or issue a permit for disinterment, and deliver any body buried in such cemetery, on application of the next of kin of the deceased, being of full age and sound mind, to such next of kin, on payment of the reasonable cost and expense of disinterment. No such disinterment shall be made during the months of April, May, June, July, August and September, and in no event if the deceased died of a contagious or infectious disease, until a permit has been issued by the local health department.
See also Tripp v. Sexauer, 36 Ohio Law Abs. 135, 136-37, 39 N.E.2d 161 (2d Dist. 1941). Section 3468 provided that:
Such application shall be in writing and shall state the relation of the applicants to the deceased, that the applicants are the next of kin of the deceased, of full age and sound mind, the disease of which the deceased died, where the body shall be re-interred, and shall be subscribed and verified by oath.
The 1894 Act "Providing for the removal of bodies from one cemetery to another," said, in relevant part:
Section 1. Be it enacted by the General Assembly of the State of Ohio, That the trustees or board of any cemetery association, or other officer having control and management of a cemetery, shall disinter or issue a permit of disinterment, and deliver any body now buried, or that may hereinafter be buried in such cemetery under their control, on application of the next of kin of the deceased, being of full age and sound mind, to such next of kin, on payment of the reasonable cost and expense of the disinterment; provided, however, that no such disinterment shall be made during the months of April, May, June, July, August and September of any year; and in no event where the deceased has died of a contagious or infections disease, and not until a permit has been issued by the local health department.
Section 2. Such application shall be in writing; shall state the relation of the applicants to the deceased; that the applicants are the next of kin of the deceased, of full age and sound mind; the disease of which the deceased died; where the body shall be reinterred; and shall be subscribed and sworn to before some officer authorized to administer oaths. Section 3. In case said trustees or board or other officers in charge of said cemetery shall refuse to issue said permit for disinterment, there shall be issued by the court of common pleas of the county wherein the cemetery is situated, a writ of mandamus requiring said trustees or board or other officers to issue said permit.
{¶ 11} The 1846 Act is in accord with the " ‘policy of the law to protect the dead from disturbance and maintain the sanctity of the grave’ " contrary to a right of disinterment. Corkill v. Calvary Cemetery Ass'n, Cuyahoga C.P. No. 536158, 1944 WL 2573, *3 (Dec. 7, 1944), quoting Brunton v. Roberts, 265 Ky. 569, 97 S.W.2d 413, 416, 107 A.L.R. 1289 (Oct. 13, 1936) ; see also Mut. of Omaha Ins. Co. v. Garrigan, 31 Ohio Misc. 1, 4, 285 N.E.2d 395 (C.P. 1971) (referring to "the long standing common law and statutory limitations on disinterment"). This policy came "down to us from ancient times, having its more immediate origin in the ecclesiastical law. This salutary rule recognizes the tender sentiments uniformly found in the hearts of men, the natural desire that there be repose and reverence for the dead, and the sanctity of the sepulcher." Brownlee v. Pratt, 77 Ohio App. 533, 537-38, 68 N.E.2d 798 (6th Dist. 1946).
{¶ 12} In England, "ecclesiastical courts had jurisdiction over questions relating to the disposition of a dead body. This view, however, has never been accepted in the United States, where equity jurisdiction prevails over questions of this type." DePaul College of Law, Disinterment, 3 DePaul L. Rev. 251 (1954), citing inter alia Slifman v. Polotzker Workingmen's Benevolent Assn., 198 Misc. 373, 101 N.Y.S. 2d 826 (1950), and In re Donn, 14 N.Y.S. 189 (Sup. Ct. Apr. 16, 1891). In other words, "American equity courts succeeded to the jurisdiction of the ecclesiastical tribunals" in matters of interment and disinterment. See Annotation, Removal and reinterment of remains, 21 A.L.R.2d 472, Section 4[a] (originally published in 1952); see also Herold v. Herold, 16 Ohio Dec. 303 (C.P. 1905), citing 8 Am. & Eng. Enc. Law (2 ed.) 836 ("The authority of a court of equity to decide matters of this kind [a dispute about where a body is to be interred] is unquestioned").
In rejecting church control over remains, the New York court in Donn said:
The doctrine that the dead bodies of the votaries of a church are under the supervision and control of ecclesiastical authorities, to the exclusion of the next of kin of the deceased, has obtained in England. The civil courts at first exercised jurisdiction in such matters, but the ecclesiastical authorities gradually usurped jurisdiction, until it became the settled law that the church had the exclusive control of the dead bodies of their members; and, while the heirs and next of kin were permitted to erect monuments and embellish the graves of their kin at their own expense, they were not permitted to have any choice or to give directions as to the ceremonies attending the funeral, or the place of burial, or to have control in any manner over the bodies of their deceased relatives. But, while we adopted many of the laws and institutions of England in the formation of our government, we have persistently, constantly, and successfully thus far resisted all attempts on the part of ecclesiastical authorities or churches to usurp or control the powers and rights of the legislative or judicial departments of this country. While we grant to all religious organizations the largest and broadest latitude and liberty to adopt all or any proper rules or regulations, to the end that their votaries may worship God according to the dictates of their conscience, we have jealously watched and resisted any and all attempts on their part to usurp powers or authority outside or beyond their legitimate functions of caring for and administering spiritual affairs. While it cannot be said that a corpse is property in the sense that it is a subject of barter and sale, the courts of this country have recognized the right and authority of the next of kin, in proper cases, to control and possess it; and when an ecclesiastical body assumes jurisdiction and control over a corpse its acts are of a temporal and juridical character, and not in any sense spiritual; and, under our laws and institutions, when it attempts so to do it is acting outside of its proper jurisdiction and domain. The necessity for the exercise of jurisdiction in such matters by legal tribunals in this country is very apparent. If the heirs and next of kin of a deceased person have no right to the possession or authority to control, in a proper case, the body of their deceased relative, it might be left unprotected; and, in case a corpse should be found in the possession of one who had invaded the grave and disinterred it, they would be powerless to reclaim it. * * * [T]herefore, I think it quite clear and beyond question that the church in this case has no control or jurisdiction over the body of Mrs. Donn * * *.
In re Donn at 190.
{¶ 13} The question under division (B)(2) of the final order statute is whether, prior to 1853, an action for disinterment was "denoted as an action at law or a suit in equity." R.C. 2505.02(A)(2). This definition of "special proceeding" was added to the final order statute following, and codifying, the Supreme Court of Ohio's decision in Polikoff v. Adam, which defined a special proceeding using "a bright-line rule based upon whether the action was recognized at common law or in equity and not specially created by statute." Shen v. Lam, 1st Dist. Hamilton No. C-140607, 2015-Ohio-3321, 2015 WL 4936604, ¶ 11, citing Polikoff, 67 Ohio St.3d 100, 107, 616 N.E.2d 213 (1993).
{¶ 14} In Polikoff, the Court found a particular kind of suit (shareholder derivative suits) not to be a special proceeding because "derivative suits originated more than one hundred years ago as actions in equity." Id. at 107, 616 N.E.2d 213. The Court cited Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970) in support of this assertion. Ross was not an Ohio case and did not turn on Ohio law. Rather, Ross involved federal law and was brought in federal court in New York. We think this fact is relevant because it appears that the scope of our inquiry must be determined with reference not just to Ohio law, but law in the United States generally, in 1853.
{¶ 15} In Ohio, for some time period before the 1894 Act, a petition for disinterment could proceed as a suit in equity. See, e.g., Smiley v. Bartlett, 3 Ohio C.D. 432, 1892 WL 964, *2 (Sixth Circuit, Lucas County, Jan. Term, 1892) (disinterment sought and granted "through the equity powers of the court"). Equity was invoked for related matters in other states around the same time. See, e.g., In re Donn, 14 N.Y.S. 189 (1891) ; Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227, 233 (1872) (discussing the "jurisdiction of courts of equity to protect and preserve the repose of the dead, except when the same is disturbed for public purposes, or under regular proceedings[, and their] equal power to grant the relief which may be full, adequate, and proper, after such disturbance has been committed"); Sacred Heart of Jesus Polish Natl. Catholic Church v. Soklowski, 159 Minn. 331, 333, 199 N.W. 81 (1924) ("it is well settled that equity will protect such rights as surviving relatives may have touching the care and location of the grave, the interest of the public in the undisturbed repose of the dead, and the latter's expressed wish, if any, as to their final resting place").
{¶ 16} A number of cases dealing with disinterment were decided in Ohio in the 1890s. See, e.g., Smiley ("This suit was brought August 12, 1889. Its object and purpose is to secure, through the equity powers of the court, the exhumation of the remains of Mrs. Holmes from the cemetery lot of the defendant, Bartlett, where they lie buried, and their removal to, and re-interment by the side of her deceased husband, in a cemetery lot owned by him at the time of his decease"); Hadsell v. Hadsell, 3 Ohio C.D. 725, 1893 WL 942, *2 (Allen County, Apr. Term, 1893) ("The case [disinterring remains from one part of a cemetery and reburial in another] is not such as has been usually dealt with by courts of equity, where it was sought to exhume the body and remove it to another cemetery, or to some distant part of the country. Indeed, cases of this character are quite rare - and in this state, at least, there is but little, if any, authority to direct or control the court in determining the questions involved"); State ex rel. Sonntag v. Shonhoft, 7 Ohio C.D. 716, 1897 WL 1587, *1 (First Circuit, Hamilton County, Jan. Term, 1897) (granting mandamus under the 1894 Act and ordering "that the defendants, trustees of the cemetery in question, on payment of the reasonable cost and expenses thereof shall disinter and deliver to the relators the bodies of their two minor children, now buried in said cemetery, or issue a permit for the disinterment and delivery thereof to the relators - the provisions of the act of May 14, 1894, 91 O. L. 231, as to the application &c., having been fully complied with by the relators").
{¶ 17} The earliest of the 1890s cases identified by this court's research, Archbishop Elder v. Henry, 11 Ohio Dec. Reprint 138, 25 W.L.B. 45, 1891 WL 313 (Darke C.P. 1891), discussed an order issued on the request of the Archbishop that the remains of a non-communicant to be removed from consecrated ground of a parish cemetery to an unconsecrated part of the cemetery. The reasons appear from the brief decision to be "that the cemetery was held in law as a private institution, and that the [cemetery's] rules regarding interments had been violated," rather than a particular legal code or common law principle. Id. at *1. Prior to the 1890s, and specifically before 1853, other than references to the ancient or long-standing nature of the prohibition on disinterment, our research has not revealed any cases in Ohio seeking or allowing disinterment. Admittedly, however, such cases may be more challenging to locate.
{¶ 18} Other authorities suggest that "[a]t least since the nineteenth century, the courts in the United States have had to decide cases involving disinterment." Zablotsky, "Curst Be He That Moves My Bones:" the Surprisingly Controlling Role of Religion in Equitable Disinterment Decisions, 83 N.D.L. Rev. 361 (2007), citing R.F. Martin, Annotation, Removal and Reinterment of Remains, 21 A.L.R.2d 472 (1952) ; see also Sherrard v. Henry, 88 W.Va. 315, 106 S.E. 705, 707 (1921) ("That a court of equity will interfere to prevent desecration of places of burial of the dead or to prevent the removal of bodies properly buried is well established").
{¶ 19} In 1829, the United States Supreme Court decided a case in equity touching on disinterment and the various rights surrounding it. See Beatty v. Kurtz , 27 U.S. 2 Pet. 566, 7 L.Ed. 521 (1829). The case was a property dispute, brought when an owner claimed possession of land that had been earmarked for a church and that had been used in part as a burial ground. The purported owner had begun removing graves from the burial ground, and the church parties objected. The Supreme Court framed the courts’ equity jurisdiction broadly, given the important subject matter:
This is not the case of a mere private trespass; but a public nuisance, going to the irreparable injury of the Georgetown congregation of Lutherans. The property consecrated to their use by a perpetual servitude or easement, is to be taken from them; the sepulchres of the dead are to be violated; the feelings of religion, and the sentiment of natural affection of the kindred and friends of the deceased are to be wounded; and the memorials erected by piety or love, to the memory of the good, are to be removed so as to leave no trace of the last home of their ancestry to those who may visit the spot in future generations. It cannot be that such acts are to be redressed by the ordinary process of law. The remedy must be sought, if at all, in the protecting power of a court of chancery; operating by its injunction to preserve the repose of the ashes of the dead, and the religious sensibilities of the living.
(Emphasis added.) Id. at 584-585.
{¶ 20} In 1927, the Iowa Supreme Court noted that, "[n]ot having any ecclesiastical courts in this country, it necessarily followed that matters involving the burial or disinterment of a dead body came under the supervision of the equity courts." King v. Frame, 204 Iowa 1074, 216 N.W. 630, 632 (1927), citing Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227. Other courts agree with this position, specifically with respect to disinterment. See Hickey v. Hickey, 156 Ind.App. 610, 614, 298 N.E.2d 29 (Ind. App. 1973), citing Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904) ("It is well-established in the United States that disinterment and removal is within the province of equity"). {¶ 21} Against this backdrop, we make the following observations. Because equity courts in the United States generally succeeded to the role the ecclesiastical courts played in England with respect to interment and disinterment, it seems likely that an action in equity existed here before 1853. Indeed, the breadth of the United States Supreme Court's 1829 description in Beatty v. Kurtz of the courts’ equity power suggests that such an action was viable in the event of a dispute, even if in most instances, governmental permission for disinterment may not have been necessary. See Annotation, Removal and reinterment of remains, 21 A.L.R.2d 472, Section 4[a] (originally published in 1952) ("From the early days of this country, respectful disinterments and removals have been looked upon as private concerns of the deceased's family, his relatives, and perhaps of the owner of the burial land, if they could all agree. In the absence of statute it has not been considered necessary to secure official permission to make such disinterments and removals"). Ohio's 1846 Act apparently allowing disinterment where the next of kin or an appropriate authority consented, also suggests that a suit in equity may lie. Or, having such consent may simply have been a defense to a charge of disinterring a body contrary to law. See State v. McClure, 4 Blackf. 328, 329 (Indiana 1837) ("We consider the disinterment to be indictable, if it was done without the consent of the deceased, given in her lifetime, or of her near relatives, given subsequently to her death").
{¶ 22} A definitive answer has not been presented to or found by this court showing that disinterment was or was not denoted as an action at law or a suit in equity before 1853. Calvary ultimately has the burden of proof to show that it was not, and that the "special proceeding" division of the final order statute is satisfied. State v. Glenn, 2021-Ohio-3369, ––– N.E.2d ––––, ¶ 22, quoting Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, ¶ 8 ("The burden of establishing the appellate court's jurisdiction over an interlocutory appeal ‘falls on the party who knocks on the courthouse doors asking for interlocutory relief’ "). Because the jurisprudence and other scholarship suggests that such a suit in equity was available in Ohio and elsewhere in the United States before 1853, and because Calvary has not pointed to any authority to the contrary, this court is not convinced that the order on appeal here qualifies as a special proceeding as defined in R.C. 2505.02(A)(2).
{¶ 23} Accordingly, we conclude that the May 17 Entry is not a final order under R.C. 2505.02(B)(2).
Division (B)(4): An Order that Grants or Denies a Provisional Remedy
{¶ 24} "[T]o qualify as a final, appealable order under R.C. 2505.02(B)(4), three requirements must be satisfied: (1) the order must grant or deny a provisional remedy as that term is defined in the statute, (2) the order must in effect determine the action with respect to the provisional remedy, and (3) the appealing party would not be afforded a meaningful review of the decision if that party had to wait for final judgment as to all proceedings in the action." State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 42, citing State v. Upshaw, 110 Ohio St.3d 189, 2006-Ohio-4253, 852 N.E.2d 711, ¶ 15.
{¶ 25} Several courts have specifically and categorically held that the denial of motion to quash a third-party subpoena is a final appealable order under this division. See Citibank, N.A. v. Hine, 2017-Ohio-5537, 93 N.E.3d 108, ¶ 8 (4th Dist.) ("As both parties recognize courts have held that the denial of a motion to quash a subpoena is a final appealable order as it relates to a non-party"); see also Future Communications, Inc. v. Hightower, 10th Dist. Franklin No. 01AP-1175, 2002-Ohio-2245, 2002 WL 926769, ¶ 6-13 ; Cincinnati v. Neff, 1st Dist. Hamilton No. C-130411, 2014-Ohio-2026, 2014 WL 1999327, ¶ 5-6 ; Tisco Trading USA, Inc. v. Cleveland Metal Exchange, Ltd., 8th Dist. Cuyahoga No. 97114, 2012-Ohio-493, 2012 WL 425871, ¶ 5. Because all three prongs of the test are met here, we agree.
{¶ 26} First, the order grants or denies a provisional remedy. A provisional remedy is defined as "a proceeding ancillary to an action." R.C. 2505.02(A)(3). For purposes of determining finality, " ‘an ancillary proceeding is one that is attendant upon or aids another proceeding.’ " Anderson at ¶ 47, quoting State v. Muncie, 91 Ohio St.3d 440, 449, 746 N.E.2d 1092 (2001).
{¶ 27} This court and others have "recognized that the issuance of a subpoena constitutes a provisional remedy." State v. Jeffery, 2d Dist. Montgomery No. 24850, 2012-Ohio-3104, 2012 WL 2629235, ¶ 11, citing Fredricks v. Good Samaritan Hosp., 2d Dist. Montgomery No. 22502, 2008-Ohio-3480, 2008 WL 2699435, ¶ 30 (noting that "[a] number of districts" have similarly concluded). We so find here.
{¶ 28} Roger and Carol appear to suggest that the dispute below is not a provisional remedy because no confidential materials are sought. They argue that "[t]here is no case that allows an immediate appeal from a deposition order that does not involve the disclosure of information protected by the attorney-client privilege or trade secrets." Reply in Support of Motion to Dismiss, p. 2. While indeed "discovery orders requiring a party to produce privileged or confidential information are final and appealable orders," Autumn Health Care of Zanesville, L.L.C., v. DeWine, 10th Dist. Franklin No. 14AP-593, 2015-Ohio-2655, 2015 WL 4005338, ¶ 6, an allegation of privilege or confidentiality is not the only reason that an order can fall within the definition of a provisional remedy. The definition includes, but is not limited to: "a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence," and other specific statutory findings. See R.C. 2505.02(A)(3) ; Muncie at 448, 746 N.E.2d 1092, quoting Boedeker v. Rogers, 140 Ohio App.3d 11, 18, 746 N.E.2d 625 (8th Dist. 2000) (the list in Division (A)(3) is " ‘illustrative and not exhaustive’ "). In other words, the existence of a privilege is a sufficient but not necessary condition for the existence of a provisional remedy. See Hightower at ¶ 11 (rejecting the argument that a decision denying a motion to quash a third-party subpoena is not a provisional remedy because it does not relate to the discovery of privileged matter, because "the discovery of privileged matter is only one of the examples of ancillary proceedings listed in the statute"). We conclude that the first prong of the test, that the order grants or denies a provisional remedy, is satisfied.
{¶ 29} We also conclude that the second prong, that the order in effect determines the provisional remedy, is met. The probate court's order denying the motion to quash determines that Calvary's representative(s) will have to sit for a deposition. The provisional remedy – the third-party subpoena proceeding – has been determined.
{¶ 30} The third prong of the test is more difficult. Calvary must convince this court that it would not be afforded a meaningful review if it has to wait for final judgment in the underlying disinterment actions. R.C. 2505.02(B)(4)(b) ; Glenn at ¶ 22 (the burden is on appellant). At this point, Calvary does not have to prove that it will succeed on appeal, but must "plausibly allege," or make a "colorable claim," that any harm from the order could not be remedied on appeal from a final judgment. See Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536, ¶ 3 ; Glenn at ¶ 13, ¶ 20, ¶ 22.
{¶ 31} Calvary argues:
[T]he trial court's order denying the motion to quash removes the statutorily conferred complete discretion, without penalty, provided by R.C. 2108.83 to cemetery organizations to choose to assist in disputes concerning the right to disposition. [The statute] is an absolute bar to participation, which may be asserted by a cemetery organization, just as a party may seek to enforce an absolute bar to providing privileged or trade secret information. * * * [T]he trial court's order to comply with the discovery deposition determines the action with regard to the provisional remedy and prevents a judgment in favor of Calvary with respect to the provisional remedy, because once Calvary assists with the dispute regarding the disposition of the remains of the Applicants’ parents, "it would no longer be possible to obtain a judgment preventing" its assistance under the statute. In re Grand Jury Proceeding of Doe at, 21. Absent the right to an immediate appeal of the discovery order, "[t]he proverbial bell cannot be unrung." Organ Cole, LLP [v. Andrew , 10th Dist. Franklin No. 20AP-65, 2021-Ohio-924, 2021 WL 1103582,] at 9, citing Gibson-Myers & Assocs. v. Pearce, 9th Dist. No. 19358, 1999 WL 980562 (Oct. 27, 1999). In other words, because the statute provides absolute discretion to Calvary to choose not to participate in the disinterment matter, an "appeal after final judgment on the merits will not rectify the damage." Id.
Memo in Opp., p. 6.
{¶ 32} The Supreme Court of Ohio accepted a similar argument in State v. Anderson, which dealt with an order denying a motion to dismiss on double jeopardy grounds. There, the defendant was facing his sixth trial on the same charges, and moved to dismiss the charges on double jeopardy grounds. Anderson at ¶ 15-22. After finding that the motion was a provisional remedy, and was determined by the order on appeal, the Court found that the defendant would not be afforded meaningful review absent an interlocutory appeal. The Court reasoned that the harm the Double Jeopardy Clause was designed to prohibit - the defendant being subjected to an additional trial - could not be rectified by an appeal after trial, because the defendant would have to sit through another trial before he could appeal. Id. at ¶ 54 -56.
{¶ 33} Similarly, Calvary argues here that an appeal after trial would not rectify the harm to be prevented by R.C. 2108.83. It argues that if it is forced to assist in the parties’ dispute, a later appeal cannot offer it the remedy it seeks and the statute provides: to not have to assist in the parties’ dispute.
{¶ 34} We recognize a temporal similarity between this argument and the argument accepted in Anderson. However, unlike the right at issue in Anderson, the contours of the statute Calvary raises are not so well-defined. Roger and Carol argue, and the trial court held, that the statutes invoked by Calvary do not apply to these disinterment proceedings. Our task is to determine whether Calvary has made a colorable claim that R.C. 2108.83 applies as Calvary argues, and whether an appeal would offer an adequate remedy after final judgment. We observe that this is not a particularly high standard.
{¶ 35} The main statute on which Calvary relies, entitled "Dispute relating to right of disposition; immunity from liability," provides:
In the event of a dispute regarding the right of disposition [of remains], a funeral home, funeral director, crematory operator, cemetery operator, cemetery organization, or other person asked to assist with a declarant's or deceased person's funeral, burial, cremation, or other manner of final disposition shall not be liable for damages of any kind for refusing to accept the remains, refusing to inter, cremate, or otherwise dispose of the remains, or refusing to complete funeral or other arrangements pertaining to final disposition until such funeral home, funeral director, crematory operator, cemetery operator, cemetery organization, or other person receives a court order or a written document that is executed by a person that the funeral home, funeral director, crematory operator, cemetery operator, cemetery organization, or other person reasonably believes has the right of disposition and that clearly expresses how the right of disposition is to be exercised.
R.C. 2108.83. None of the parties have directed this court to any case law on how this statute is to be interpreted, and our research has not uncovered any.
{¶ 36} Without reaching the merits, we find that Calvary has plausibly alleged, or made a colorable claim, that it would not be afforded a meaningful review of May 17 Entry if it has to wait for final judgment to appeal. As an apparent case of first impression, we are hesitant to accept or reject Calvary's new argument out of hand, particularly without a full review of the record. Again, we emphasize that this is not an opinion as to the strength of Calvary's claim, but a finding that we have jurisdiction to consider it. We conclude at this point that the third prong of the test for a provisional remedy is satisfied.
Conclusion
{¶ 37} This court concludes that the May 17 Entry on appeal is a final order that may be appealed at this time. Although the Entry does not involve a special proceeding under R.C. 2505.02(B)(2), it does satisfy the standards for a provisional remedy under R.C. 2505.02(B)(4). The motions to dismiss for lack of jurisdiction filed by Roger Glass and Carol Pollack are therefore OVERRULED. These matters shall proceed.
{¶ 38} Roger and Carol's motions to intervene as interested parties (made in their motions to dismiss) are OVERRULED as unnecessary. As parties to the underlying matters, they are appellees in these appeals.
{¶ 39} Kathleen Glass’ motion to expedite these appeals is SUSTAINED, and her motion to accelerate is OVERRULED. The above-captioned appeals are EXPEDITED in accordance with Loc.App.R. 2.8(B). These matters will be scheduled for this court's consideration at the earliest available date upon the completion of briefing. To avoid any confusion, we note that the separate limitations for cases placed on the accelerated calendar under Loc.App.R. 2.7 do not apply to cases expedited pursuant to Loc.App.R. 2.8. However, no extensions will be granted except upon a showing of extraordinary circumstances.
SO ORDERED.