[This decision has been published in Ohio Official Reports at
93 Ohio St.3d 446.]
KLEIN ET AL., APPELLEES, v. STREICHER, CHIEF OF POLICE, ET AL.,
APPELLANTS.
[Cite as Klein v. Streicher, 2001-Ohio-1583.]
Court of appeals’ judgment reversed on authority of R.C. 2505.02 and Guccione v.
Hustler Magazine, Inc.
(No. 00-1847—Submitted August 28, 2001—Decided October 17, 2001.)
APPEAL from the Court of Appeals for Hamilton County, No. C-000678.
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{¶ 1} The judgment of the court of appeals is reversed on the authority of
R.C. 2505.02 and Guccione v. Hustler Magazine, Inc. (1985), 17 Ohio St.3d 88, 17
OBR 211,
477 N.E.2d 630.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
MOYER, C.J., and COOK, J., dissent.
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COOK, J., dissenting.
{¶ 2} This court granted a discretionary appeal in this case to decide
whether the denial of a motion for admission pro hac vice is a final appealable order
under R.C. 2505.02, as amended by Sub.H.B. No. 394 in 1998. The majority
resolves this issue summarily, citing a case involving the preamendment version of
R.C. 2505.02 and overlooking a procedural infirmity that should prevent us from
reaching the issue upon which we granted review. I must therefore respectfully
dissent.
{¶ 3} The record transmitted to this court contains a document purporting
to be a copy of an entry from the trial court denying the city’s motion for admission
pro hac vice of two out-of-state attorneys. This document, which the city of
SUPREME COURT OF OHIO
Cincinnati attached to its notice of appeal in the court of appeals, is the only copy
of the supposed trial court entry that was ever a part of the appellate record. This
copy, however, shows no file stamp by the trial court clerk. Without a file-stamped
entry from the trial court, there is no final appealable order over which to exercise
appellate jurisdiction. State v. Domers (1991), 61 Ohio St.3d 592,
575 N.E.2d 832.
{¶ 4} The record suggests that the court of appeals dismissed the city’s
appeal before the trial court clerk ever transmitted the record to the court of appeals.
Thus, it is quite possible that the trial court record contains a validly journalized
entry denying the city’s motion for admission pro hac vice. On the record before
us, however, we have no way of knowing whether the trial court actually
journalized the order that is at the heart of this case. We therefore cannot reach the
issue upon which we granted review and should dismiss the cause as having been
improvidently allowed.
{¶ 5} Even if the issue had been properly presented to this court, I would
nevertheless decline to join the majority’s summary disposition of the case. The
majority decides this case “on the authority of R.C. 2505.02 and Guccione v.
Hustler Magazine, Inc. (1985), 17 Ohio St.3d 88, 17 OBR 211,
477 N.E.2d 630,”
making it appear as though the court of appeals failed to apply settled law in
dismissing the appeal below. But the question presented to this court is not as
simple as the majority’s summary reversal makes it appear.
{¶ 6} In Guccione, this court decided that an order denying permission for
out-of-state counsel to represent a litigant in a civil case was a final appealable order
under the pre-H.B. 394 version of R.C. 2505.02. The court reasoned that such an
order affected a “substantial right” and was made in a “special proceeding.” In
concluding that the order was made in a special proceeding, the court applied the
balancing test formulated in Amato v. Gen. Motors Corp. (1981), 67 Ohio St.2d
253,
21 O.O.3d 158,
423 N.E.2d 452. Under the Amato test, we evaluated whether
an order was made in a special proceeding by balancing “the harm to the ‘prompt
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January Term, 2001
and orderly disposition of litigation,’ and the consequent waste of judicial
resources, resulting from the allowance of an appeal, with the need for immediate
review because appeal after final judgment is not practicable.” Id. at 258,
21
O.O.3d at 161,
423 N.E.2d at 456. Because a litigant would have little chance of
mounting an effective postjudgment appeal of an order excluding out-of-state
counsel, the Guccione court concluded that the Amato balancing test favored
immediate appealability. Guccione,
17 Ohio St.3d at 90, 17 OBR at 212,
477
N.E.2d at 632.
{¶ 7} Today’s summary reversal gives the impression that the Guccione
rationale remains alive and well in Ohio law. To the contrary, however, the legal
analysis underlying Guccione is no longer viable. R.C. 2505.02, as amended by
H.B. 394, defines a “special proceeding” 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). The amendment codified this court’s
holding in Polikoff v. Adam (1993), 67 Ohio St.3d 100,
616 N.E.2d 213, which
expressly overruled Amato and abandoned the balancing test that provided the
foundation for Guccione’s holding. If the majority views Guccione as having some
continued vitality under current R.C. 2505.02, notwithstanding that statute’s
substantive amendments and this court’s holding in Polikoff, this court should
explain to the bench and bar how that is so rather than simply citing it in a summary
disposition.
MOYER, C.J., concurs in the foregoing dissenting opinion.
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Gustavson, Lewis & Jones Co., L.P.A., William M. Gustavson and Timothy
Smith, for appellees.
Fay D. Dupuis, City Solicitor, and Richard Ganulin, Assistant City
Solicitor, for appellants.
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