You are on page 1of 23

FIRST DISTRICT COURT OF APPEALS

HAMILTON COUNTY, OHIO

STATE OF OHIO ex rel. Mark W. : CASE No. C1800608


Miller
: ON APPEAL FROM THE
Relator/Appellee HAMILTON COUNTY COURT OF
: COMMON PLEAS COMMON
v. PLEAS
:
ALEXANDER PAUL GEORGE TRIAL No. A1801834
SITTENFELD, et al. :
APPELLEE’S MOTION TO
Respondents/Appellants. : DISMISS

Now comes the Relator/Appellee, Mark W. Miller, on relation to the State of Ohio

(“Miller”), by and through undersigned counsel and hereby tenders this Motion to Dismiss the

Appeal filed by Respondents/Appellants Greg Landsman, Alexander Paul George Sittenfeld,

Wendell Young, Tamaya Dennard, Christopher Seelbach (the “Councilmember

Respondents/Appellants”) and the City of Cincinnati (the “City Respondent/Appellant”). The

Motion is supported by the following memorandum.

Respectfully submitted,

/s/ Brian C. Shrive


Brian C. Shrive (0088980)
Christopher P. Finney (0038998)
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
(513) 943-6656
(513) 943-6669 (fax)
brian@finneylawfirm.com
chris@finneylawfirm.com
Counsel for Relator/Appellant
Mark W. Miller
MEMORANDUM

I. FACTS.

This matter is before the Court on the Notice of Appeal filed by Appellants/Respondents,

City of Cincinnati (the “City”), and Cincinnati City Councilmembers Greg Landsman, Alexander

Paul George Sittenfeld, Wendell Young, Tamaya Dennard, and Christopher Seelbach (the

“Councilmembers”) (the City and the Councilmembers are jointly referred to herein as

“Appellants”). Appellants seek review of a discovery order issued by the trial court in a lawsuit

alleging violations of Ohio’s Open Meetings Act (R.C. 121.22), denying the Councilmembers’

motion for a protective order, and ordering the Councilmembers to produce responses to Miller’s

discovery requests.

On April 24, 2018, Miller served counsel for the Councilmembers with discovery requests

issued to each Councilmember. On July 2, 2018, the Councilmembers filed a Motion for a

Protective Order (the “Motion”) seeking inter alia, a stay of all discovery in the underlying

litigation (Motion P. 2), and an order to keep confidential all documents produced in discovery

(Motion P. 2). A copy of the Motion is attached hereto as Exhibit 1.

II. LAW AND ARGUMENT

a. A discovery order may only be subject to an interlocutory appeal where


privilege was raised to the trial court

“A proceeding for ‘discovery of privileged matter’ is a ‘provisional remedy’ within the

meaning of R.C. 2505.02(A)(3). Summit Park Apts., LLC v. Great Lakes Reinsurance (UK), PLC,

2016-Ohio-1514, 49 N.E.3d 363, ¶ 10 (10th Dist.).

In Great Lakes, the party opposing discovery asserted the privilege at the trial court, and

the trial court made a specific finding that the documents at issue were not subject to the privilege.

Id., ¶¶ 16-17 (10th Dist.). Conversely, in this instance, the Motion contains no claim of privilege

2
and no finding by the trial court regarding the question of privilege (because that question was not

properly before the trial court).

b. An issue may not be raised for the first time on Appeal or in a reply memo

“A motion, whether written or oral, shall state with particularity the grounds therefor, and

shall set forth the relief or order sought.” Civ.R.7(B)(1). “Except for subject-matter jurisdiction,

issues not raised to the trial court cannot be raised for the first time on appeal.” Mezher v. Schrand,

1st Dist. Hamilton No. C-180071, 2018-Ohio-3787, ¶ 16, citing Greenwood v. Taft, 105 Ohio

App.3d 295, 302, 663 N.E.2d 1030 (1st Dist.1995).

c. The Motion included no claim of privilege

Within the context of an administrative appeal, this Court has found that when privilege is

not raised at the first opportunity it is waived. “Even if we assume that Prinz, as a health care

professional, was a holder of the privilege, he failed to raise the issue in any of the proceedings

before the board.” Prinz v. State Counselor & Social Worker Bd., 1st Dist. Hamilton APPEAL

NO. C-990200, 2000 Ohio App. LEXIS 116, at *10 (Jan. 21, 2000).

While the Councilmembers’ reply brief did include a paragraph on legislative privilege,

the Councilmembers also specifically disclaimed any attorney-client privilege with request to the

discovery requests. But, because the civil rules require that the motion shall state with particularly

the grounds for the requested relief, the question of privilege was not properly before the trial court

and was waived by the Councilmembers.

III. Conclusion

Because the Appellants failed to properly raise the issue of privilege to the trial court in

their Motion for a protective order, they have waived the privilege and cannot now raise the issue

for the first time on appeal. As such, this matter should be dismissed for lack of jurisdiction.

3
Respectfully submitted,

/s/ Brian C. Shrive


Brian C. Shrive (0088980)
Christopher P. Finney (0038998)
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
(513) 943-6656
(513) 943-6669 (fax)
brian@finneylawfirm.com
chris@finneylawfirm.com

Counsel for Relator/Appellant


Mark W. Miller

4
CERTIFICATE OF SERVICE
Undersigned counsel does hereby certify that a true and accurate copy of the foregoing was

served via electronic mail upon the following counsel this 7th day of November 2018:

Peter J. Stackpole, Esq.


City Hall, Room 214
801 Plum Street
Cincinnati, Ohio 45202
Peter.stackpole@cincinnati-oh.gov

Bryan E. Pacheco, Esq.


Mark A. Vander Laan, Esq.
DINSMORE & SHOHL, LLP
255 East Fifth Street, Suite 1900
Cincinnati, Ohio 45202
mark.vanderlaan@dinsmore.com
bryan.pacheco@disnmore.com

Counsel for Councilmember Respondents

Aaron M. Herzig, Esq.


Donnell J. Bell, Esq.
TAFT STETTINIUS & HOLLISTER LLP
425 Walnut Street, Suite 1800
Cincinnati, Ohio 45202
aherzig@taftlaw.com
dbell@taftlaw.com

Counsel for Respondent City of Cincinnati

/s/ Brian C. Shrive


Brian C. Shrive (0088980)

5
EXHIBIT 1