Lava Landscaping v. Rayco, Unpublished Decision (1-26-2000)

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Appellants, Rayco Manufacturing, Inc., John M. Bowling, Jake Stout, John Doe, and John Doe Manufacturer (collectively "Rayco"), have attempted to appeal from an order of the Medina County Court of Common Pleas that denied their motion to disqualify the counsel of appellees, Lava Landclearing, Inc., Vitomir Avramovic, George Avramovic, and Leslie Avramovic (collectively "Lava"). Because the order Rayco has attempted to appeal is not a final appealable order, this case is dismissed for lack of jurisdiction. Although this jurisdictional issue was not raised by the parties, this Court has an obligation to raise it sua sponte. See Whitaker-Merrell v. Geupel Co. (1972), 29 Ohio St.2d 184,186. Article IV, Section 3(B)(2) of the Ohio Constitution and R.C. 2501.02 grant the court of appeals jurisdiction to hear appeals of only final appealable orders. If the judgment entered below does not constitute a final appealable order, this Court does not have jurisdiction over this appeal and it must be dismissed. Rayco has attempted to appeal from the trial court's October 14, 1998 order that: (1) granted Rayco's request to disqualify Lava's expert witness and (2) denied Rayco's motion to disqualify Lava's counsel. Because the first aspect of the order was resolved in Rayco's favor, Rayco has attempted to appeal only the second aspect of the order, namely, the denial of its motion to disqualify counsel. Although an order granting a motion to disqualify counsel is a final appealable order, Kala v. AluminumSmelting Refining Co., Inc. (1998), 81 Ohio St.3d 1, 3, an order denying such a motion is not. Bernbaum v. Silverstein (1980), 62 Ohio St.2d 445, 448-449; In re Estate of Cullen (1997),118 Ohio App.3d 256, 261, see, also, Russell v. Mercy Hospital (1984), 15 Ohio St.3d 37, 39-43 (explaining why an order disqualifying counsel is final while an order denying disqualification is not); Swearingen v. Waste Tech. Indus. (Sept. 21, 1999), Columbiana App. Nos. 98CO26 and 98CO35, unreported, 1999 Ohio App. LEXIS 4367 (applying above Russell reasoning to R.C. 2505.02(B)(4), enacted after Russell, which provides for appeals from certain provisional remedies). Because Rayco has attempted to appeal from a nonfinal order, this Court must dismiss the appeal for lack of jurisdiction. Appeal dismissed. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to Appellants. Exceptions. BETH WHITMORE, FOR THE COURT BAIRD, P.J., BATCHELDER, J., CONCUR.