IN THE SUPREME COURT OF OHIO

State Ex. Rel, ProctorRealtor,

vs Case No, 08-1399

Hon. Judges Wise,Gwinn, and Delaney

Respondents.

RELATOR'S MOTION FOR RECONSIDERATION BASED UPONHAGEMAN Y. SOUTHWEST GEN HEALTH CENTERRECENTLY DECIDED BY THE SUPREME COURT

Gregory N. Finnerty (0037739)66 E. Lynn St., Ste. 1000Columbus, OH 43215614-582-7327

COUNSEL OF RECORD FOR RELATOR,PHIUP L. PROCTOR

Sharon D. Miller (0065056)Assistant Prosecuting AttorneyStark County Prosecutor's Office110 Central Plaza South, Ste. 510Canton, OH 44701-0049

COIJNSEL OR RECORD FORRESPONDENTS

TABLE OF CONTENTSPAGE

MOTION FOR RECONSIDERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ]

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT ................................................................5

1. REQUEST TO SUMMARILY REVERSE BASED ON HAGEMAN . . . . . . . . . . . . . 5

H. REQUEST TO REMAND BASED ON HAGEMAN . . . . . . . . . . . . . . . . . . . . . . . . . 7.

IJI. REQUEST TO ACCEPT JURISDICTION BASED ON HAGEMANFOR THE PURPOSE TO EXPAND AND DEFINE THE TORT . . . . . . . . . . . . . . . . . 8

CONCLUSION .............................................................10

PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

APPENDIX Appx. Page

Exhibit A - Opinion of the Delaware County Court of Appeals (May 7, 2008) ....... 1

Exhibit B- Judgment Entry of the Delaware County Court of Appeals (May 7, 2008), 14

Exhibit C - Hageman v Southwest Gen Health Center . . . . . . . . . . . . . . . . . . . . . . . . . 15

MOTION FOR RECONSIDERATION

The recently decided case of Hageman v. Southwest Gen Health Center, (2008),119 OS 3d

185, 2008-Ohio-3343, which recognized a new type of tort in Ohio, is directly on point to the the

case at hand. However, Hageman was published in the OSBA Report on September 22, 2008 (Vol

81 #38), and therefore too late for Appellant to argue the case in his jurisdictional statement.'

Furthermore, obviously neither the trial court nor the Court of Appeals were in a position to take

notice of or rely upon Hageman.

In Hageman, the Supreme Court recognized, for the first time, a new tort called, "breach of

confidentiality related to medical information." Just as in Hageman, this case presents the

unauthorized disclosure by counsel during the course of Gtigation of the opposing party's

psychological reports. However, without the benefit of Hageman, the trial court declared the

lawsuit to be frivolous as it claimed that the suit was not supported by existing law or a good faith

argument to modify existing law.

Nevertheless, the case at bar is clearly a Hageman case, and could in fact serve as an

extension ofthe Hageman doctrine. The only difference between Flageman and the present case was

that there were more thanjust medical records disclosed and there was no form of any waiver present

in this matter. Therefore, beyond the fact that this case clearly falls within the class of Hageman,

it also presents an opportunity to extend Hageman to its logical conclusion.

The facts and argument of this case presented below will demonstrate in more detail why this

matter should be reversed, remanded, or accepted for briefing and argument. To do so in a

'Appellant also had inadequate time to submit the authority pursuant to Supreme CourtRule III, Section 3(a).

1

Mandamus action would be entirely appropriate because if a lower court patently and

unambiguously lacks jurisdiction to proceed in a case, mandamus will issue to correct the prior

jurisdictionally unauthorized actions, and appeal is immaterial in such a case. State ex rel

Sapp, et al v Franklin County Court ofAppeals, (2008),118 OS 3d 368, 2008-Ohio-2637, p 3; and

State ex rel Mayer v Henson, (2002), 97 OS 276, 2002-Ohio-6323. This would be especially

applicable in this case where the lower court did not have knowledge of the law established in

Hageman at the time it was considered on appeal.

STATEMENT OF FACTS

Appellant, Philip L. Proctor (henceforth Attomey Proctor) is an attorney who has sought to

overtum a trial court fmding that a"frivolous" lawsuit had been filed. After a voluntary dismissal

without prejudice, the trial court declared a lawsuit for invasion of privacy, abuse of process, and

intentional infliction of emotional distress filed by Attorney Proctor and his former client, Julie

Peterman (henceforth Client Peterman), to be "frivolous"and awarded Appellees attorneys fees in

the amount of $31,995.90.

Client Peterman and Appellee Stewart were both beneficiaries of an Estate opened in 1997

valued at approximately $800,000.00. Appellee Stewart was also the executor. In addition to a share

of the Estate, Client Peterman was granted residence of the Estate property for six months after

decedent died because she had been living with her aunt prior to her death(decedent). During this

six month time period, Appellee Stewart entered the home, without Client Peterrnan's knowledge

or permission, and seized personal papers from a lock box in the home.

In 2002, Client Peterman hired Attorney Proctor for the purpose of inquiring into the status

of the completion of the Estate. In response to a letter of inquiry, the Estate filed, in the Probate

2

Court, a motion to have Client Peterman's share of the Estate reduced to pay for a Honda she was

driving that belonged to the decedent. Theyclaimed she had a contract with decedent to purchase

the vehicle.

Client Peterman filed for discovery regarding the Honda. However, instead of receiving the

documents requested, Client Peterman received irrelevant personal documents taken from her home.

Further, the first of these documents, which included bank statements and attomey-client work

product notes, were filed on the public record in the Probate case and disseminated to the iune Estate

beneficiaries. The issue of the improper disclosure of the private papers was brought to the attention

of the Probate Court. The Probate Court ordered Appellees and counsel not to disseminate any more

private papers. It also ordered the production of the discovery that had been requested. The Estate

ignored this order, and, more irrelevant personal notes and phone records were filed. A Motion to

Strike the irrelevant documents was filed and other action was initiated in an effort to prevent the

further dissemination of Client Peterman's personal information.

A hearing was held in the Probate Court on June 6, 2002. The Probate Court again said that

the personal papers were not relevant or admissible, and that the Estate should return all original and

copies to Client Peterman. Estate Counsel handed Client Peterman the previously filed documents

and told the court that the Estate had no other personal papers. The parties were instructed to discuss

settlement of the Honda issue during a break. However, at that conference, the Estate and Appellee

Stewart arguably attempted to strong-arm Client Peterman into accepting a settlement offer on their

terms. Thus, Client Peterman was threatened with the filing of more personal papers onto the public

record and that the documents would be disseminated to the other Estate beneficiaries (Client

Peterman's relatives) if she did not accept the settlement.

3

On July 29, 2002, immediately after Client Peterman informed the Estate that she would not

accept their settlement offer, the Estate followed through with the threat and filed more of Client

Peterman's personal papers onto the public court record and disseminated them to the other

beneficiaries. These documents included psychological counseling documents for Client Peterman's

children as part of her divorce case.

It also included very personal social security documents containing Client Peterman's social

security number, bank account papers, and more work product notes from conversations with her

attorney. In the end, about one hundred pages of these private and confidential papers were filed and

disseminated withottt any permission or waiver of privilege by Client Peterman; and without any

permission from the court or relevance to the probate proceeding. Furthermore, Client Peterman felt

that the sharing sensitive personal information was an invasion of her privacy. It was embarrassing

and humiliating.

In spite of the fact that the dissemination was blatantly contrary to the order of the court, the

court determined to classify that matter as civil in nature, to be pursued in a private civil action, if

at all. It was left to Client Peterman to file a separate legal action if she so chose. Accordingly,

seemingly at the direction of the court, an action was filed in common pleas court that alleged

invasion of privacy, intentional infliction of emotional distress, and abuse ofprocess. The trial court

ultimately determined that, since Attorney Proctor might be required as a witness in that action, he

could serve as Peterman's counsel in the separate action. Thereafter, Peterman decided not to

proceed, and a Judgment Entry was filed as a dismissal without prejudice upon her pro se motion.

Appellees then filed a motion for attorney's fees pursuant to ORC section 2323.51. On

November 22, 2005, the trial court, quite remarkably in view of some of the unseemly activities,

4

declared the entire lawsuit to be "frivolous" and granted $31,995.90 in attorney's fees against both

Attorney Proctor and Client Peterman.

The trial court's decision was promptly appealed. At some point, the trial judge saw fit to

recuse himself from the case. In spite of the oddities that would sanction a severe penalty against

an attorney for embracing his or her role as an advocate for a party in need, the sanction has stood.

This astonishing and ruthless outcome that would undermine counsel's role in serving as an

advocate for a party in the midst of litigation it had not initiated was twice allowed to stand by the

Fifth District Court of Appeals. However, that esteemed court has refused to review the case on the

merits in either occasion.z The Court of Appeals did not have the benefit of Hageman when it

considered the appeal.

ARGUMENT

Respectfully, this matter should either be summarily reversed based upon the precedent set

in Hageman, and remanded so that the Court of Appeals can review the matter with the benefit of

the Hageman ruling; or jurisdiction should be accepted by the Supreme Court to review the

application and possible expansion of the new tort to its logical conclusion. In the process, the court

could avail itself of the opportunity to define the elements of the tort.

1. REQUEST TO SUMMARILY REVERSE BASED ON HAGEMAN:

Clearly, the unauthorized disclosure of psychological reports and sensitive medical records

places this case within the elements of the tort established in Hageman.

21'he Court of Appeals however granted bond in the form that the garnishmentpayments would be escrowed. This order remains in effect during the pendency of this Supreme

Court appeal.

5

The only disputed fact in the case presently before this court concerned how the Estate

obtained the private papers in the first place. Client Peterman set forth that the papers were taken

by Appellee Stewart from a lock box in her home while she was away from the home. Appellees

conversely argued that they were found in the home after Client Peterman had moved. However,

this disputed matter is ofno consequence because even ifEstate Counsel had obtained the documents

lawfully in the course of the court case, there was no right to disclose the documents to third parties.

Hageman examined this issue and rejected the argument that an attorney can disclose private

medical documents even if the papers were lawfully obtained in the course of the court case.

Moreover, the Court in Hageman, p 190, said, "However, an attorney may be liable to an

opposing party for the unauthorized disclosure of the party's medical information that was

obtained through litigation."

Hageman also rejected the argument that a waiver of privilege in one case could allow

medical documents to be disclosed to third parties. The injured party does not need to seek a

protective order or take steps to prevent the disclosure for the tort to apply. In sum, the Court in

Hageman, p 190, concluded that liability attaches where the injured party did not "explicitly

authorize," the disclosure of the medical records. Thus, it is undisputed that in the case at bar

Client Peterman never gave any authorization to disclose the documents. Furthermore, unlike

Hagernan, who had provided a limited waiver of the privilege, Client Peterman gave no waiver in

any form and took steps to prevent the dissemination of the private papers.

In Hageman, the Supreme Court also examined the issue ofusing the unauthorized disclosure

of private medical documents to strong-arm a litigant into settlement. The court in Hageman, p190,

6

said that such a tactic, "intensifie[s] the legal pressure," and that it is improper because, "It is not

difficult to imagine that someone facing such actions might be encouraged to settle more quickly

than he or she would had the medical records not been shared." Thus, just as in Hageman, the

strong-arming tactic to force a settlement, on display here, also forms the basis of the tort.

If the Supreme Court were to deny reconsideration here, it could result in conflicting orders

because Client Peterman is still within the statute of limitations to file a Hageman tort case.1

Therefore, if Client Peterman were to fde a Hagen:an tort action, then there would be liability

for the very same case that was found to be frivolous. Further, the first item on her list of

damages would be the $31,995.90 collected for the fi•ivolousjudgment. In summary, it makes no

sense to reward counsel with attorney's fees for the very same conduct that forms the basis of

a Hageman action.

Pursuant to ORC 2323.51(A)(2), a lawsuit cannot be "frivolous" where it is warranted

under existing or, ". .. supported by a good faith argument for extension, modification, or

reversal of existing law." Clearly, the present case could have been the case the Supreme Court

used to establish the new tort set forth in Hageman if Hageman had not gotten there first.

Moreover, there can be no doubt, based on the decision ofHageman, that the case at bar was

not "frivolous;" and therefore the lower court's decision should be summarily reversed.

H. REQUEST TO REMAND BASED ON HAGEMAN:

There has always been the possibility that the Court of Appeals has been reluctant to review

the appeal because of the uncertainty as to how to apply the law. However, in the wake of the

3See O. R. C. § 2305.14. The statute of limitations could arguably extend further,pursuant to O. R. C. § 2305.16, if Client Peterman's children (who are still minors) should decide

to file.

7

Hageman decision, that guidance is now available. Since the court did not have the benefit of

Hageman when it decided this case, at the very least, this matter should be remanded to afford the

court the opportunity to review this matter in the context of Hageman.

In addition, the record from the trial court proceeding shows that the trial court faced

confusion as to how to apply the law. Much of that confusion could be ameliorated in view of

emerging developments in the law. Therefore, it follows that it would be entirely appropriate to

remand this matter to the Court of Appeals so it could review the case in light of Hageman.

In sum, if the Supreme Court does not summarily reverse, it should remand the matter with

an order to review this case in the context of the new tort described in Hageman.

III. REQUEST TO ACCEPT JURISDICTION BASED ONHAGEMANFOR THE PIJRPOSE

OF FURTHER DEFINING THE TORT:

While it is no surprise that Appellant would prefer that this matter be summarily reversed,

it must be pointed out that this case presents a perfect opportunity to expand the Flageman case to

its logical conclusion and to more clearly define the tort. The obvious question that Hageman raises

is whether the tort would apply to other confidential documents besides medical papers. In this case,

there is not only the unauthorized disclosure of psychological and medical documents, but also

attorney-client privileged documents. Furthermore, the work product information contained in

these documents involved the very same issues then before the probate court. Arguably

therefore, if the Hageman tort applie"s to the medical privilege, it must also apply to attorney-

client privileged documents.

There was also the unauthorized disclosure of social security documents containing the

client's social security number, bank account statements, and phone records showing the phone

8

numbers and calls to her friends and family. Clearly these were all confidential documents as well.

The documents may have meant nothing to the attorney who published them onto the public record

and disseminated them to the other beneficiaries, but the confidential information contained in them

were very important to Client Peterman. In fact, no one should be subjected to having all aspects

of their personal life on display just because they are involved in a court case. This is especially true

where, as in this case, the documents do not have even the remotest relevance to case before the

court.

Therefore, this case presents the opportunity for the Supreme Court to decide whether

Hageman should be expanded to attorney-client privileged documents and all other

confidential papers; orwhcther it should be limited its application to only medical documents.

ould certainly seem logical that ifHageman were to apply to medical documents, it would

likewise apply to any confidential document.

The case at bar also provides the opportunity for the Supreme Court to further define the tort

described in Hageman. Justice Cupp, in his concurring opinion of Hageman, p 192, said that:

"The plurality opinion does not discuss the elements of the tort it recognizes today....Accordingly, the task of delineating the elements of this tort remains, either upon remandhere or in another case."

This case however provides the perfect opportunity to resolve the above concern raised by

Justice Cupp. Moreover, the documents involved would allow the Supreme Court to determine the

parameters of the duty not to disclose confidential documents and when such a duty has been

breached.

Clearly there was a breach of the duty in this case as in Hageman, but attorneys in Ohio will

no doubt want to know the logical application and extension of Hageman. This case therefore

9

should stand for the proposition that just because an attorney has possession of confidential papers,

he does not have the open right to disclose those documents to anyone he or she desires. This is

especially true where the purpose is to strong-arm a litigant into accepting an unfavorable settlement.

In summary, if the Supreme Court does not otherwise reverse or remand, Appellant requests

that the Court accept jurisdiction to determine the boundaries of the tort described in Hageman and

to delineate the elements of the tort.

CONCLUSION

Appellant requests that the Supreme Court reconsider this matter based on Hageman v

Southwest Gen Health Center. The Hageman decision was published only about a week before the

court denied jurisdiction herein, and obviously was not known to either the trial court or the Court

of Appeals. However, Hageman is nevertheless clearly directly on point to the case presently before

this courL. Therefore, Appellant requests that this matter either be summarily reversed based on

Hageman, remanded for the lower court to review the application of Hageman, or that this court

accept jurisdiction to further expand or define the Hageman doctrine.

Respectfully submitted,0

Grego N. F' erty (0637739)

Columbus, OH 43215614-582-7327

66 E. Lynn t., Ste. 1000

(

COUNSEL OF RECORD FOR RELATOR,PHILIP L. PROCTOR

10

CERTIFICATE OF SERVICE

I hereby certify that a copy of Relator's Motion for Reconsideration Based upon Hageman

v Southwest Gen Health Center Recently Decided by the Supreme Court was sent by regular U.S.mail to Sharon D. Miller, Assistant Prosecuting Attorney, Attorney for Respondents at S k CountyProsecutor's Office, 110 Central Plaza South, Ste. 510, Canton, OH 44701-0049 this/lay of

October, 2008.

COUNSEL OF RECORD FOR RELATOR,PHILIP L. PROCTOR

11

EXHIBIT A

COURT OF APPEALSDELAWARE COUNTY, OHIOFIFTH APPELLATE DISTRICT

JULIE PETERMAN

Plaintiff-Appellant

JUDGES:Hon. W. Scott Gwin, P.J.Hon. John W. Wise, J.Hon. Patricia A. Delaney, J.

-vs-Case No. 07 CAE 10 0054

DEAN STEWART, et al.

Defendants-Appellees 0 P I N 10 N

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

Civil Appeal from the Court of CommonPleas, Case No. 02 CVC 08 449

Affirmed

For Plaintiff-Appellant For Defendants-Appellees

PHILIP L. PROCTOR FRED J. BEERYPost Office Box 4803 125 North High StreetNewark, Ohio 43058 Hillsboro, Ohio 45133

Court of APpeaEsDelaware Co., Ohio

I hereby certify the within be a trueCofyy e origisial ost file in this ot'fice.

6os, Clerl< oDf C^uutr^

13F

1

Delaware County, Case rvo. 07 CAE 10 0054 2

Wise, J.

{11} This is an appeal of a denial of Appellant Philip L. Proctor's 60(B) Motion

for Relief from Judgment by the Common Pleas Court of Delaware County.

{12} Appellees are Warner Dean Stewart and the Estate of Josephine Shively.

STATEMENT OF THE FACTS AND CASE

{13} The relevant facts are as follows:

{14} This action commenced with the Plaint.ifF, Julie Peterman ("Peterman"),

filing a complaint in the Delaware County Common Pleas Court on August 15, 2002.

{T5} This case was assigned to Judge W. Duncan Whitney. Plaintiff

Peterman subsequently amended her complaint on Sept. 6, 2002, and again on

July 7, 2003. Peterman was represented during this time by Attorney Philip L.

Proctor.

{16} On October 24, 2003, Attorney Proctor then filed a Motiori to Withdraw as

Counsel alleging he would be participating as a witness in the action.

{¶7} On October 29, 2003, the Court granted this motion and ordered Aftorney

Proctor not to prepare or file any further pleadings on behalf of Plaintiff Peterman.

Plaintiff Peterman subsequently represented herself in the action.

{¶8} On November 13, 2003, Peterman filed a motion for voluntary dismissal

of the action.

{19} On November 19, 2003, the trial court entered a judgment entry of

dismissal.

{110} On November 24, 2003, Defendant Dean Stewart, the executor of the

Estate, then filed a motion for attorney's fees.

Delaware County, Case ivo. 07 CAE 10 0054 3

{¶11} On December 4, 2003, Defendant Estate filed a motion for award of

attorney's fees and costs, which it amended on March 11, 2004.

{112} On July 12, 2004, the trial court held a hearing on the motions.

{713} On November 22, 2004, subsequent to the filing of post-hearing

supplemental documents by the parties and a status conference on the matter, the trial

court entered its decision wherein it found that the actions by Plaintiff Peterman and

her attorney, Phifip L. Proctor, were clearly frivolous, and that the claims asserted in

the complaint, amended complaint, and second amended complaint were without merit.

The Court supported its findings with evidence from the record. The Court granted the

Defendants' motions for attorney's fees, awarding Defendant Stewart $1,780.00 and

Defendant Estate $30,215.90, and ordering both awards of attorney's fees to be

assessed against Plaintiff Peterman.

{T14} Appellant Proctor and his client Julie Peterman appealed that judgment to

this Court, which, by Opinion and Entry fi{ed September 6, 2006, affirmed the judgment

of the trial court.

{715} On October 17; 2006, this Court's decision was appealed to the Ohio

Supreme Court. The Ohio Supreme Court declined jurisdiction and dismissed the

appeals of Attorney Proctor and Peterman on January 24, 2007 and February 7,

2007, respectively. The Supreme Court of Ohio also denied subsequently filed

motions for reconsideration on March 28, 2007.

{¶16} On May 10, 2007, Appellant filed a Civil Rule 60(B) Motion to Vacate

Judgment as to Attorney and Motion for Relief from Judgment from the original

`̂- -Delaware County, Case No. 07 CAE 10 0054

f--4

judgment for legal fees with the Delaware County Common Pleas Court. This motion

was assigned to a different trial judge.

(4[17} On September 11, 2007, Appellant filed a Motion to Recuse the assigned

trial court judge.

{¶18} By separate Judgment Entries dated October 9, 2007, the trial court

denied Appellant's motion to recuse and his 60(B) motion.

{119} Appellant now appeals the denial of these two motions. The four

Assignments of Error raised by Appellant are:

ASSIGNMENTS OF ERROR

{¶20} "I. IN THE JUDGMENT ENTRY FILED ON OCTOBER 9, 2007AND THE

JUDGMENT ENTRY FILED ON NOVEMBER 22, 2005, THE TRIAL COURT ERRED

WHEN IT DENIED RELIEF FROM JUDGMENT BECAUSE THE COURT FAILED TO

EXAMINE THE LEGAL ELEMENTS OF THE CAUSES AND BECAUSE THE

MATTERS SET FORTH IN THE LAWSUIT WERE WARRANTED BY LAW

{121} "II. IN THE JUDGMENT ENTRIES FILED ON OCTOBER 9, 2007 AND

THE JUDGMENT ENTRY FILED ON NOVEMBER 22, 2005, THE TRIAL COURT

ERRED BECAUSE ATTORNEY PROCTOR DID NOT HAVE A FAIR AND IMPARTIAL

REVIEW IN THE FIRST INSTANCE OR UPON THE 60(B) MOTION, AND THE

COURT FURTHER ERRED BY REFUSING TO RECUSE AND ASSIGN THE MATTER

TO AN IMPARTIAL TRIAL JUDGE.

{¶22} "III. IN THE JUDGMENT ENTRIES FILED ON OCTOBER 9, 2007, THE

TRIAL COURT ERRED WHEN IT REFUSED TO GRANT A HEARING, ESPECIALLY

4

€ .. ^.Delaware County, Case No. 07 CAE 10 0054 5

REGARDING THE NEWLY DISCOVERED EVIDENCE AND EVIDENCE THAT THE

ORIGINAL TRIAL JUDGE WAS BIASED OR PREJUDICED.

(123) "IV. IN THE JUDGMENT ENTRY FILED ON OCTOBER 9, 2007, THE

TRIAL COURT ERRED WHEN IT REFUSED TO VACATE THE NOVEMBER 22, 2005

JUDGMENT ENTRY BECAUSE THE COURT LACKED PERSONAL JURISDICTION

OR VACATE IN PART BECAUSE THE COURT LACKED SUBJECT MATTER

JURISDICTION."

i.

{124} In his first assignment of error Appellant argues that the trial court erred in

denying his 60(B) Motion to Vacate Judgment as to Attorney and Motion for Relief from

Judgment. We disagree.

{125} The grant or denial of a motion for relief from judgment under Civ.R. 60(B)

rests within the sound discretion of the trial court and will not be disturbed absent an

abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. An

abuse of discretion connotes more than an 'error of law or judgment; it implies the

court's attitude is unreasonable, arbitrary or unconscionable. B(akemore v. Blakemore

(1983), 5 Ohio St.3d, 217, 219, 450 N.E.2d 1140.

{126} Civ.R. 60(B) states in pertinent par"t'.

{127} "On motion and upon such terms as are just, the court may relieve a party

*** from a final judgment, order or proceedings for the following reasons: (1) mistake,

inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by

due diligence could not have been discovered in time to move for a hew trial under Rule

59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic),

misrepresentation or other misconduct of an adverse party; (4) the judgment has been

^

` r

Delaware County, CaseCNo. 07 CAE 10 0054 6

satisfied, released or discharged, or a prior judgment upon which it is_based has been

reversed or otherwise vacated, or it is no longer equitable that the judgment should

have prospective application; or (5) any other reason justifying relief from the judgment.

The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not

more than one year after the judgment, order, or proceeding was entered to taken."

{128} A party seeking relief from judgment pursuant to Civ.R. 60(B) must show,

(1) a meritorious defense or claim to present if refief is granted; (2) entitlement to relief

under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must be

timely filed. GTE Automatic Electric, Inc. v ARC Industries, Inc. (1976), 47 Ohio St.2d

146, 351 N.E.2d 113, paragraph two of the syllabus. A failure to establish any one of

these three requirements will cause the motion to be overruled. Rose Chevrolet, Inc. v.

Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564; Argo Plastic Prod. Co. v.

Clevetand (1984), 15 Ohio St.3d 389, 391, 474 N.E.2d 328.

{129} In addition, where grounds for relief from judgment appear on the face of

the record, a trial court abuses its discretion by denying the moving party's motion for

relief from judgment. Hatcher v. City of Cleveland (Dec. 10, 1992), 8th Dist. No. 63668.

{1[30} The trial court has discretion whether to hold a hearing before ruling on

the motion. Where grounds for relief from judgment appear on the face of the record, a

court may grant the motion without a hearing. Matson v. Marks (1972), 32 Ohio App.2d

319, 291 N.E.2d 491, paragraph five of the syllabus; Doddridge v. Fitzpatrick (1978), 53

Ohio St.2d 9, 371 N.E.2d 214, syllabus. However, where grounds for relief from

judgment appear on the face of the record, a court abuses its discretion and may not

overrule the motion unless it first makes a factual determination of the alleged grounds

6

Defaware County, Case No. 07 CAE 10 0054 7

for relief adverse to the movant. Matson, supra, paragraph six of the syllabus. In other

words, if movant's Civ.R. 60(B) motion contains allegations of operative facts warranting

relief, the trial court should grant a hearing to take evidence and either discredit or verify

these facts before ruling. Coulson v. Coulson (1983), 5 Ohio St.3d 12, 16, 448 N.E.2d

809. U.A.P. Columbus JV326132 v. Plum (1986), 27 Ohio App.3d 293, 500 N.E.2d 924.

{¶31} Appellant argues his motion under Civ.R. 60(B)(5): However, Civil Rule

60(B)(5) is intended as a catch-all provision reflecting the inherent power of a court to

relieve a person from the unjust operation of a judgment. Meadow Wind Health Care

Center, lnc, v. Mclnnes, Stark App.No.2001 CA00230, 2002-Ohio-1000, citing Caruso-

Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 448 N.E.2d 1365. It is not to be used as

substitute for relief on other grounds when it is too late to seek relief on such grounds.

Cerney v. Norfolk & W. Ry. Co. (1995), 104 Ohio App:3d 482, 662 N.E:2d 827. This

catch-all provision is to be used in the extraordinary and unusual case when the interest

of justice warrants it. Id. The grounds for invoking this provision should be substantial.

Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 448 N.E.2d 1365.

{532} Upon review of Appellant's arguments for relief we find that while

Appellant classifies his claim under Civ.R. 60(B)(5), we find his arguments fit more

appropriately under Civ.R. 60(B)(1) and(2), although Appellant never states what the

newly discovered evidence is. Appellant, in his 60(B) motion is asking the trial court to

overturn its prior decision for the same reasons Appellant previously argued, and

ultimately lost, on appeal.

{¶33} The Ninth District Court of Appeals has stated: "It is clear that Civ.R. 60(B)

relief is not avaifable as a substitute for an appeal * * *. The movant must allege new

7

Delaware County, Case, No. 07 CAE 10 0054 8

grounds for Civ.R. 60(B) relief; it may not use the arguments it lost under the judgment

to justify relief from the judgment." (Citations omitted.) Elyria Twp. Bd. of Trustees v.

Kerstetter (1993), 91 Ohio App.3d 599, 602, 632 N.E.2d 1376. Thus, when a party

merely reiterates arguments that concern the merits of the case and that could have

been raised on appeal, relief under Civ.R. 60(B) is not available as a substitute for

appeal. Wozniak v. Tonidandel (1997), 121 Ohio App.3d 221, 228, 699 N.E.2d 555, 559

{134} Upon review, we find the doctrine of res judicata applies sub judice. In

Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, syllabus, the Supreme Court of Ohio

explained res judicata as "[a] valid, final judgment rendered upon the merits bars all

subsequent actions based upon any claim arising out of the transaction or occurrence

that was the subject matter of the previous action." In Nolan v. Nolan (1984), 11 Ohio

St.3d 1, 3, the Supreme Court of Ohio summarized the "law of the case" doctrine as

follows: Briefly, the doctrine provides that the decision of a reviewing court in a case

remains the law of that case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels.* * * It is well-estabfished

that a party may not use a Civ.R. 60(B) motion as a substitute for a timely appeal. See

Doe v. Trumbull Cty. Children Services Bd. (1986), 28 Ohio St.3d 128, 502 N.E.2d 605,

paragraph two of the syllabus.

{135} Upon review, we find the trial court did not abuse its discretion in denying

Appellant's Civ.R. 60(B) niotion. Assignment of Error I is denied.

^

^ E -Delaware County, CaseNo. 07 CAE 10 0054 9

H.

{¶36} In his second assignment of error, Appellant argues that the trial court

erred in denying his 60(B) motion based upon bias and/or prejudice of the original trial

court judge and further erred in denying his motion to recuse. We disagree.

{¶37} The Supreme Court of Ohio has exclusive jurisdiction over such matters

pursuant to R.C. §2701.03. The statute reads:

{138} "(A) If a judge of the court of common pleas allegedly is interested in a

proceeding pending before the court, allegedly is related to or has a bias or prejudice for

or against a party to a proceeding pending before the court or a party's counsel, or

allegedly otherwise is disqualified to preside in a proceeding pending before the court,

any party to the proceeding or the party's counsel may file an affidavit of disqualification

with the clerk of the supreme court in accordance with division (B) of this section.

{T39} "(B) An affidavit of disqualification filed under section 2101.39 or 2501.13

of the Revised Code or division (A) of this section shall be filed with the clerk of the

supreme court not less than seven calendar days before the day on which the next

hearing in the proceeding is scheduled and shall include all of the following:

{¶40} "(1) The specific allegations on which the claim of interest, bias, prejudice,

or disqualification is based and the facts to support each of those allegations or, in

relation to an affidavit filed against a judge of a court of appeals, a specific allegation

that the judge presided in the lower court in the same proceeding and the facts to

support that allegation;

(141) "(2) The jurat of a notary public or another person authorized to administer

oaths or affirmations;

9

Delaware County, Case No. 07 CAE 10 0054 10

{l[42} "(3) A certificate indicating that a copy of the affidavit has been served on

the probate judge, judge of a court of appeals, or judge of a court of common pleas

against whom the affidavit is filed and on all other parties or their counsel;

{J43} "(4) The date of the next scheduled hearing in the proceeding or, if there is

no hearing scheduled, a statement that there is no hearing scheduled.

{144} " * *

{145} "(E) If the clerk of the supreme court accepts an affidavit of disqualification

for filing under divisions (B) and (C) of this section and if the chief justice of the supreme

court, or any justice of the supreme court designated by the chief justice, determines

that the interest, bias, prejudice, or disqualification alleged in the afFldavit does not exist,

the chief justice or the designated justice shall issue an entry denying the affidavit of

disqualification. If the chief justice of the supreme court, or any justice of the supreme

court designated by the chief justice, determines that the interest, bias, prejudice, or

disqualification alleged in the affidavit exists, the chief justice or the designated justice

shall issue an entry that disqualifies that judge from presiding in the proceeding and

either order that the proceeding be assigned to another judge of the court of which the

disqualified judge is a member, to a judge of another court, or to a retired judge."

{146} R.C. 2701.03 provides the exclusive means by which a litigant can assert

that a common pleas judge is biased or prejudiced. Adkins v. Ad'kins (1988), 43 Ohio

App.3d 95, 539 N.E.2d 686. Thus, an appellate court clearly lacks any authority to pass

upon the disqualification of a common pleas court judge or to void the judgment of a trial

court on that basis. State v. Ramos (1993), 88 Ohio App.3d 394, 623 N.E.2d 1336.

10

i4 - =

Delaware County, Case ivo. 07 CAE 10 D054 11

{147} By failing to properly file an affidavit of disqualification with the Supreme

Court pursuant to R.C. §2701.03, a party waives any error relating to the trial judge's

denial of a motion to recuse. State v. Fannin, Cuyahoga App. No. 80014, 2002-Ohio-

4180, 2002 WL 1878860. Appellant failed to abide by the mandatory requirements of

R.C. §2701.03; therefore, he waived any argument with regard to disqualification.

{148} Appellant's second assignment of error is overruled.

III.

{¶49} In his third assignment of error, Appellant'argues that the trial court erred

in not holding a hearing on his 60(B) motion. We disagree.

{150} A party is not automatically entitled to a hearing on a Civ.R. 60(B) motion,

Hrabak v. Collins (1995), 108 Ohio App.3d 117. In Harris v. Harris (February 5, 2001),

Stark App.No. 2000CA00196, we found a movant is not entitled to evidentiary hearing if

the movant fails to allege operant facts which, If true, would be sufficient to establish

each of the elements of the GTE test, Han-is at 4, citations deleted.

{751} The standard for when an evidentiary hearing on a Civ.R. 60(B) motion is

necessary is set forth in Cogswell v. Cardio Clinic of Stark County, Inc. (October 21,

1991), Stark App.No. CA-8553. In Cogswell, this Court held under Civ.R. 60(B), a

hearing is not required unless there exist issues supported by evidentiary quality

affidavits. A trial courf must hold an evidentiary hearing when the motion and supporting

evidence contain sufficient allegations of operative facts which would support a

meritorious defense to the judgment. Cogswell; BancOhio National Bank v. Schiesswohl

(1988), 51 Ohio App.3d 130

11

Delaware County, Case No. 07 CAE 10 0054 12

{152} In the case sub judice, Appellant's motion failed to allege operative facts

which, if true, would be sufficient to establish each of the elements of the GTE test.

{153} Appellant's third assignment of error overruled.

IV.

{154} In his fourth assignment of error, Appellant argues that the trial court erred

in not granting his 60(B) motion because the trial court lacked personal jurisdiction and

subject matterjurisdiction. We disagree.

{155} Appellant raised this assignment of error in his first appeal to this Court.

The first assignment of error raised by Appellant in Peter.man v. Shively, Delaware App.

No. 05-CAE-12-0082, 2006-Ohio *^* was:

{¶56} " I. IN THE JUDGMENT ENTRY FILED ON NOVEMBER 22, 2005, THE

TRIAL COURT FAILED TO ANALYZE THE ATTORNEY AND CLIENT SEPARATELY

AND THEREFORE FAILED TO RECOGNIZE PROCEDURAL AND LEGAL ISSUES

THAT WOULD APPLY TO THE ATTORNEY WHICH INCLUDED THE FACT THAT

APPELLEES WERE OUT OF RULE, APPELLEES DID NOT PROVIDE PROPER

NOTICE, AND THAT THE ATTORNEY DID NOT ACT WILFULLY [SIC] CONTRARY

TO THE STATUTE OR CIVIL RULE.

{157} "A. APPELLEE-ESTATE FILED OUT OF RULE AS TO ATTORNEY

PROCTOR.

{158} "B. BOTH APPELLEES WERE OUT OF RULE AS TO ATTORNEY

PROCTOR BECAUSE HE WITHDREW UNOPPOSED FROM THE CASE.

{159} "C. ATTORNEY PROCTOR WAS NOT SERVED WITH THE MOTION.

{¶60} "D. NO NOTICE WAS PROVIDED AS TO ATTORNEY PROCTOR.

12

Delaware County, Case wo. 07 CAE 10 0054 13

{7[61} "E. AN ATTORNEY CANNOT BE LIABLE UNLESS THERE WAS

MISCONDUCT THAT WAS DONE WILFULLY [SIC].

{762} "F. AN ATTORNEY CANNOT BE LIABLE FOR ADVOCATING THE

POSITION OF HIS OWN CLIENT."

{163} This assignment was overruled by this Court, wherein, it held:

{164} "The procedural assertions of Appellant Proctor are without merit as the

hearing was set and continued several times without known raising of this objection." Id.

{165} As previously stated, Appellant is barred from re-litigating this issue by the

doctrine of res judicata.

{166} Appellant's fourth assignment of error is overruled.

{j[67} For the foregoing reasons, the judgment of the Court of Common Pleas of

Delaware County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.

4".e, a.JWW/d 424

JUDGES

13

EX BIT B

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIOFIFTH APPELLATE DISTRICT

JULIE PETERMAN

Plaintiff-Appellant

-vs-

DEAN STEWART, et al.

Defendants-Appellees

JUDGMENT ENTRY

Case No. 07 CAE 10 0054

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.

Costs assessed to Appellant.

JUDGES

L ^5: ?'to^ rca^

zEc

-v= . ^^

•7'Tit-' U*' . ' -.<+„y

C1d E^' Qin

a'

^D

14

184 SUPREME COURT, JANUARY TERM, 2008 [119 Ohio St.3dDissenting Opinion, per O'Donnell, J.

to remand this cause so that the court of appeals can repeat its.review of theGore guideposts. Accordingly, I concur in part and dissent in part.

O'Do,rnELL, J., dissenting.

{9 45} I respectfully dissent.

{946} The majority's resolution of this case is in conflict with our decision inState ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 862 N.E.2d145, where in paragraph ohe of our syllabus, we stated: "R.C. 2701.10 andGov.Jud.R. VI require bench trials in referrals of civil actions or submission ofissues or questions, pursuant to the statute and the rule, which both speeify thatcases referred and issues submitted to a retired judge pursuant to theseprovisions must be tried and determined by a judge."

,,9 47} The jurisdiction of a retired judge emanates from R.C. Z701.10, not from

+C1^1"uthority or agreement of the parties to the action. The proper analysis here

is to consider the plain language of the statute, as we did in Russo. There, we

stated, "R.C. 2701.10(B)(1) provides that the parties and retired judge must

expressly agree that the action referred shall be 'tried, determined, and adjudi-cated by that retired judge."' Russo at 9 38. Additionally, R.C. 2701.10(D)specifies that "[a] retired judge to whom a referral is made under this section

shall try all of the issues on the action or proceeding, shall prepare relevant

findings of fact and conclusions of law, and shall enter a judgment in the action orproceeding in the same manner as if he were an active judge of the court." See

also Russo at 138. The plain language of the statute permits courts to transfer

cases to retired judges for conduct of bench trials only. Thus, the outcome of

this analysis dictates that in this instance, the retired judge proceeded to conducta jury trial without authority.

{448} This court has held that "parties may not confer jurisdiction upon a

court by mutual consent, where none would otherwise exist ***." BeatriceFoods Co. v. PorterFeld (1972), 30 Ohio St.2d 50, 59 0.0.2d 76, 282 N.E.2d 355,paragraph two of the syllabus. Therefore, the parties here could not agree toconfer jurisdiction upon the retired judge to conduct a jury trial.

{9 49} This court recently acknowledged that when a judge disregards whatthe law clearly conunands, the judge acts without authority. State v. Simpkins,117 Ohio St.3d 420, 2008-0hio-1197, 884 N.E.2d 568, 121. We stated: "If a judgeimposes a sentence that is unauthorized by law, the sentence is unlawful. 'If anact.is unlawful it is not erroneous or voidable, but it is wholly unauthorized and

119. Ohio St.3d] HAGEMAN v. SW GEN. HEALTH CTR. 185Headnotes

void.' (Einphasis sic.)" Id., quoting State ex r•el. Kudrick v. Meredith (1922), Z4

Ohio N.P. (N.S.) 120,124,1922 WL 2015, °'3.

{9150} Here, a retired judge conducted a jury trial in contravention of R.C.2701.10, which authorizes only bench trials. These actions were unauthorized,

unlawful, and therefore void.

{9 51} Accordingly, I respectfully dissent. I would reverse the judgment of thecourt of appeals, vacate the verdict, and remand this case to the trial court for

further proceedings. If the parties request a jury trial, then those proceed'aigsshould be conducted by a judge elected or appointed in accordance with law.

LUNDRCE RG STRATrON, J., concurs in the foregoing opinion.

Basheiu & Bashein Co., L.P.A., and W. Craig Bashein; Becker & Mishldnd

Co., L.P.A., and Michael F. Becker; and Paul W. Flowers Co., L.P.A., and PaulW. Flowers, for appellee.

Isaac, Brant, Ledman & Teetor, L.L.P., James M. Roper, J. Stephen Teetor,and Jessica X. Philemond, for appellant MedLink.

Bricker & Eckler, L.L.P., and Ahne Marie Sferra, urging reversal for amicuscuriae, Ohio Association of Civil Trial Attorneys. .

HAGEMAN, APPELLEE, D. SCUTHwEsT Q'xENEaAL I$EALTH

CENTER ET AL., APPELLEES; BELOVICH, APPELLANT.

[Cite as Hageman v. Southwest Gen. Health Ctr.,119 Ohio St.3d 185, 2008-Ohio-3343.1

Con,Jidentiality of inedtieaL records-Third-party liability for disclosure-An

attornay may be liable to an opposing party for the unaactJwrt¢ed disclosureof that party's medieal tinforrnation that was obtained through. litigation

186 SUPREME COURT, JANUARY TERM, 2008[119 Ohio St.3dOpinion, per Moyer, C.J.

(No. 2007-0376-Submitted January 22, 2008-Decided July 9, 2008.)

AppEAL from the Court of Appeals for CuyahogaCounty, No. 87826, 2006-Ohio-6765.

$YLLe1BU8 OF TnE COURT

An attorney may be liable to an opposing party for the unauthorized disclosure ofthat party's medical information that was obtained through litigation.

See: West's Ohio Digest, Attorney and Client r--26; Health ¢-642.

' MOYER, C.J.

I

{91} This case presents the issue of whether an attorney may be liable for theunauthorized disclosure to a third party of medical information regarding anopposing party that was obtained through litigation. For the following reasons,we hold that an attorriey may be held liable for such an unauthorized disclosure.Therefore, we affirm the judgment of the court of appeals and remand the case

for further proceedings.

II

{42} In January 2003, appellee, Kenneth Hageman, began meeting with Dr.Thomas Thysseril for psychiatric treatment. In his first treatment session,Hageman admitted having homicidal thoughts about his wife. Dr. Thysseri]determined that Hageman has bipolar disorder and treated him for this conditionthrough July 2003.

{93} In February 2003, Hageman's wife filed for divorce in the CuyahogaCounty Court of Common Pleas. Appellant, Barbara Belovich, served as herattorney in this matter. Hageman filed a counterclaim, in which he sought legalcustody of the couple's minor child.

{44} While both the divorce case and Hageman's psychiatric treatment wereongoing, Hageman allegedly assaulted his wife at their home, and criminalcharges were brought against him. Shortly thereafter, his wife sought andreceived a civil domestic-violence protection order. The order gave her tempo-rary custody of the couple's child and suspended Hageman's contact and visita-tion rights until a full hearing could be held.

{4 5} In preparation for this hearing, Belovich issued subpoenas to Dr.Thysseril, seeking the production of Hageman's medical records. Belovichbelieved that Hageman had waived his privilege to those records by filing the

119 Ohio St.3d] HAGEMAN v. SW GEN. HEALTH CTR. 187Opinion, per Moyer, C.J.

counterclaim for custody in the divorce action, given the decision of the Court of

Appeals for Cuyahoga County in Gill v. Gili, Sth Dist. No. 81463, 2003-Ohio-180,

2003 WL 132447.` Although Hageman did not sign a release for this information,Dr. Thysseril's office faxed Hageman's records to Belovich.

{4 6} On the date of the civil-protection-order hearing, Belovich lnet with theprosecutor in the criminal case against Hageman. The prosecutor was attendingthe hearing as an obselver and was not scheduled to testify or othelwiseparticipate in the hearing. Nonetheless, Belovich gave the prosecutor a copy ofHageman's medical records that she had received from Dr. Thysseril.

{9 7} Before the scheduled hearing, Hageman and his wife entered into a. separation agreement that was ultimately incorporated into a divorce decree

entered by the trial court. Hagelnan's medical records were therefore neveradlnitted into evidence in the divorce/protection-order case. Likewise, they werenot admitted in the criminal matter, and Hagelnan was ultimately acquitted.

{4 8} Shortly after the separation agreement was completed, Hageman broughtthe instant action against Belovich, Hageman's ex-wife, Dr. Thysseril, Oak TreePhysicians (Dr. Thysseril's employer), and Southwest General Health Center (thehospital housing Oak Tree). Hageman alleged that the defendants had improper-ly disclosed his medical records without his authorization. The tltial courtgranted summary judgment to the defendants on all of Hageman's claims. Thecourt of appeals affirmed the trial court's holding in regard to the motions forsummary judginent filed by all the defendants except Belovich. Hagenan v.Southwest Geia Health Ctr., Cuyahoga App. No. 87826, 2006-Ohio-6765, 2006 WL3743095, 9 29-30. In reversing the trial court's holding as to Belovich, the courtof appeals stated that-she had "overstepped her bounds as [the ex-wife's] divorceattorney when she disseminated information regarding [Hageman's] psychiatriccondition to the prosecution." Id. at 4 31. We accepted Belovich's discretionaryappeal. Hageman v. Southwest Gen.. Health Ctr., 114 Ohio St.3d 1410, 2007-Ohio-2632, 867 N.E.2d 844.

III

{49} In general, a person's medical records are confidential. Numerous stateand federal laws recognize and protect an individual's interest in ensuring thathis or her medical information remains so. For exalnple, the Ohio PublicRecords Act prohibits medical records maintained by public institutions frombeing released pursuant to a public-records request: "'Public record' means

1. In Gffl, the Comt of Appeals for Cuyahoga County held that a parent who seeks custody of aminor child in a divorce action makes his or her mental condition an issue in the case, and thus thephysician/patient piivilege "does not apply." GiLI, 2003-Ohio-I80, 2003 WL 137447, 919, citingNeftzer v, NeJtzer (7000), 140 Ohio App.3d 618, 748 N.E.2d 608.

188 SUPREME COURT, JANUARY TERM, 2008 [119 Ohio St.3dOpinion, per Moyer, C.J.

records kept by any public office ***[but] does not mean any of the following:

(a) Medical records."" R.C. 149.43(A)(1)(a). Likewise, the federal Health Infor-

mation Portability and Accountability Act of 1996 ("HIPAA") prevents health-care providers from disclosing health information except in certain specificcircumstances. See generally 45 C.F.R. 164.502. Physician-patient and psychol-

ogist-patient privileges have been codified in Ohio to deny the use of suchinformation in litigation except in certain limited circumstances. See R.C.2317.02(B)(1) and 4732.19. Physical and mental-health examinations of a litigat-

ing party may be ordered only when relevant and "for good cause shown." See

Civ.R. 35(A).{910} We explicitly recognized and applied this basic policy of confidentiality

in Biddle v. Warrero Gen, Hosp. (1999), 86 Ohio St.3d 395, 715 N.E2d 518. Inthat case, we confronted iasues arising from the disclosure. of health-care informa-tion obtained through a physician-patient relationship. After surveying cases inOhio and beyond, we recognized that the breach of patient confidentiality is apalpable wrong. Id. at 400; 715 N.E.2d 518. However, we also determined thatsuch an injury is difficult to remedy appropriately. Id.

{911} Finding the various methods that courts have used to address such,-,claims (including theories like invasion of privacy, defamation, breach of contract,

and others) to be unsatisfactory, we recognizAd a separate tort for breach ofconfidentiality related to medical information. Id at 400-401, 715 N.E.2d 518.We defined the boundaries of this tort by recognizing two related causes ofaction: one against physicians and hospitals that disclose confidential medicalinformation to a third party without authorization or privilege to do so, and oneagainst third parties who induce physicians or hospitals to disclose such inforcna-tion. Id. at paragraphs one and three of the syllabus.

{9 12} Hageman has cited Biddle as one of the underlying justifications for his

claim against Belovich. In her sole proposition of law, Belovich argues that the

causes of action recognized in Biddle do not apply to attorneys disclosing health-care information lawfully obtained in the course of litigation, even if the disclo-sure to a third party is otherwise unauthorized.

{91 13} Notwithstanding that the specific causes of action recognized in Biddle

apply imperfectly to the facts in this case, we conclude that the rationale for our

decision there applies here. Biddle stressed the innportance of upholding an

individual's right to medical confidentiality beyond just the facts of that case."[I]t is for the patient-not some medical practitioner, lawyer, or court--to

2. For the purposes of the Public Records Act, a "medical record" is defined as "any document orcombination of documents, except birl:hs, deaths, and the fact of admission to or discharge from ahospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patientand that is generated and inaintained in the proeess of medical treatment." R.C. 149.43(A)(3).

v-119 Ohio St.3d] HAGEMAN v. SW GEN.` HEALTH CTR. 189

Opinion, per Moyer, C.J.

determine what the patient's interests are with regard to personal confidentialmedical infortnation." Biddle, 86 Ohio St.3d at 408, 715 N.E.2d 518. As theSupreme Court of California has observed in discussing the related concept of aright to privacy, such a right "'is not so much one of total secrecy as it is of theright to defivae one's circle of intimacy-to choose who shall see beneath thequotidian mask."' (Emphasis sic.) Hill v. NatL Collegiate Athletic Assm (1994),7 Cal.4th 1, 25, 26 Cal.Rptr.2d 834, 865 P.2d 633, quoting Briscoe v. Reader'sDigest Assaa, Iizc. (1971), 4 Cal.3d 529, 534, 93 Cal.Rptr. 866, 483 P.2d 34. If theright to confidentiality is to mean anything, an individual inust be able to directthe disclosure of his or her owu pl9vate information.

{1114} Hageman admits that he made his health an issue in the divorce actionby seeking custody of his and his ex-wife's minor child. Pursuant to the law ofthe Eighth Appellate District, Hageman was required to demonstrate that he wascapable of caring for his child in order to be granted custody. See Gill 2003-Ohio-180, 2003 WL 132447, 9118-19. For that reason, he waived his medicalprivilege for the purposes of that case. See id. Whatever discomfortarose fromthis disclosure of private and confidential information was tempered by thepossibility of success on his custody claim.. However, there is neither a legaljustification for nor a practical benefit to the proposition that a waiver for aspecific, Innited purpose is a waiver for another purpose.

{91 15} Creating an expansive waiver would be inconsistent with the generallyrecognized confidentiality provisions in Ohio and federal law. Moreover, theexpansive waiver urged by Belovich would not be desirable public policy for anumber of reasons. First, individuals should be encouraged to seek treatmentfor medical or psychological conditions, and privacy is often essential to effectivetreatment. This fact is especially true for psychological conditions. "Effectivepsychotherapy *** depends upon an atinosphere of confidence and trust inwhich the patient is willing to make a frank and complete disclosure of facts,einotions, memories, and fears. Because of the sensitive nature of the problelnsfor which individuals consult psychotherapists, disclosure of confidential commu-nications made during counseling sessions may cause embarrassment or disgrace.For this reason, the mere possibility of disclosure may nnpede development of theconfidential relationship necessary for successful treatment." Jaffee v. Redmond(1996), 518 U.S. 1, 10, 116 S.Ct. 1923, 135 L.Ed.2d 337, citing studies andauthorities presented by the American Psychiatric Association and the AmericanPsychological Association.

{416} Likewise, if an expansive waiver existed for medical records obtainedthrough litigation, the potential for abuse of this waiver would be high. Theparty receiving the records will generally be the only person with anything togain from the disclosure of the information beyond the underlying litigation. The

190 SUPREME COURT, JANUARY TERM, 2008(119 Ohio St.3d

Opinion, per Moyer, C.J.

facts in this case convince us that an attorney with medical records of a party inonecase could use those records for purposes not intended by the party grantingthe waiver. Belovich represented Hageman's ex-wife in the divorce and civll-protection-order cases and obtained Hageman's psychological records as part ofthe divorce action. By sharing that information with the prosecutor in thecriminal case against Hageman when it had not yet been made available in thatcase, she intensified the legal pressure against Hagelnan. It is not difficult toimagine that someone facing such actions might be encouraged to settle morequickly than he or she would had the medical records not been shared.

{917} With these cbnsiderations in mind, we hold that when the cloak ofconfidentiality that applies to medical records is waived for the purposes oflitigation, the waiver is limited to that case. An attorney can certainly usemedical records obtained lawfully through the discovery plncess for the purposesof the case at hand-e.g., subn-iitting them to expert witnesses for analysis orintroducing thefn at trial. However, an attorney may be liable to an opposingparty for the unauthorized disclosure of that party's medical information that wasobtained through litigation. Thus, as in our decision in Biddle, we conclude thatan independent tort exists to pravide au injured individual with a remedy for suchan action.

H.► {418} One final note is necessary. Belovich suggested at oral argument that if00,ve were to recognize such a cause of action, it could be waived if the disclosing

party failed to take steps to keep the medical i`ecords private, such as byrequesting a protective order.

{919} We note her concern, but decline to address what effect the failure totake such actions may have on the tort recognized herein, given these facts.While it is undisputed that Hageman did not request a protective order oranother form of protection forhis medical records, it is also true that he did notexplicitly authorize Dr. Thysseril to disclose the records to Belovich, the trialcourt did not hold a hearing on the disclosure (rather, Belovich executed asubpoena on her own without a signed release), the records were distributed tothe prosecutor only a few days after they were released to Belovich, and therecords were never entered into evidence in the divorce proceeding or thecriminal matter. Thus, Hageman had no opportunity to object to the productionof these records or to seek a protective order, given Belovich's conduct. Further,because the records were not introduced into evidence, they did not becomepublic before. Belovich disclosed them. It may be appropriate to discuss thefailure to take protective measures if the issue actually arises.

IV

{4 20} By giving the psychological records she obtained in the divorce case tothe prosecutor in the criminal case against Hageman, Belovich violated Hage-

119 Ohio St.3d] HAGEMAN v. SW GEN. HEALTH CTR. 191Concurring opinion, per Cupp, J.

man's rights to keep that information confidential. AIlowing attorneys with such

information obtained through discovely to treat the information as public would

violate the policy of maintaining the confidentiality of individual medical records.

We therefore recognize that waiver of medical confidentiality for litigation

purposes is limited to the specific case for wlilch the records are sought and that

an attorney who violates this limited waiver by disclosing the records to a third

party unconnected to the litigation may be held liable for these actions.

{421} Therefore, the judgment of the court of appeals is hereby affumed, and

the case is remanded for further proceedings consistent with this opinion.

Judgment affirmed

and cause remanded.

PFEIFER and LANzINGER, JJ., concur.

O'CoNNoR and Cupp, JJ., concur in the syllabus and judgment.

LUNDBERG STRATTON and O'DaNNELL, JJ., dissent.

CDrr, J., concurring in syllabus and judgment only.

{9 22} I write separately because I view the waiver-of-privilege issue somewhatdifferently from the plurality or dissent in this case.

{9 23} Ohio's doctor-patient privilege statute, R.C. 2317.02(B)(1)(a)(iii), pro-vides, "The testimonial privilege * * * does not apply, and a physician * * * maytestify or may be compelled to testify "" * *[i]n any civil action, in accordancewith the discovery provisions of the Rules of Civil Procedure in connection with acivil action, T'*[i]f a medical claim * * * [or] any other type of civil action* * * is filed by the patient* **:" The court below determined, and the partiesdo not dispute, that Hageman's counterclaim in the divorce case seeking custodyof the couple's daughter waived the-doctor-patient privilege in R.C. 2317.02(B) forpurposes of the divorce case. See, e.g., GiU v. Cyili, 8th Dist. No. 81463, 2003-Ohio-180, 2003 WL 132447; cf. R.C. 3109.04(F)(1)(e) (the "mental and physicalhealth of all persons involved in the situation" must be considered in determiningthe best interest of the child for custody purposes). The parties here dispute theextent of that waiver and whether it destroyed the privilege for aIl time, includingwith regard to cases separate from the divorce and civil-protection-order case.

{9 24} In this case, Belovich provided the doctor's notes to an assistantprosecutor in connection with a criminal case against Hageman. AlthoughHageman did not seek a protective order in the divorce case to limit the use ordisclosure of his doctor's notes, the doctor's records were not hitroduced intoevidence in the divorce case. (Thus, the confidentiality of Hageman's medical

192 SUPREME COURT, JANUARY TERM, 2008 [119 Ohio St.3dDissenting Opinion, per O'Donnell, J.

information was not destroyed by making that information public at or in

connection with a trial, for example.){9 25} On its face, the specific statutory waiver or exception at issue here

applies "in any civil action." See R.C. 2317.02(B)(1)(a). Accordingly, to resolvetkris case, it suffices to conclude that while Hageman's asserting a child-custodycounterclaim waived the privilege pu•suant to R.C. 2317.02(B)(1)(a)(iii) for thedivorce and civil-protection-order action, that statutory waiver did not apply tothe separate criminal case involving Hageman. I would leave for another day thebroader issue of whether theprivflege is waived for all time and in all cases afterthe statutoly waiver in R.C. 2317.02(B)(1)(a)(iii) has been found to apply in a

particular case, as that issue was not fully bftiefed here.{9 26} The plurality opniion does not discass the elements of the tort it

recognizes today, an extension of the tort created in Biddlz v. Warren Gen.. Hosp.

(1999), 86 Ohio St.3d 395, 715 N.E.2d 518. Accordingly, the task of delineatingthe elements of this tort remains, either upon remand here or in another case.

{1127} For the above reasons, I concur in the judgment affn•ming the court ofappeals' decision reversing the trial court's order granting summary judgment for

Belovich.0'CoNNOa, J., concurs in the foregoing opinion.

O'DONNELL, J., dissenting.

112811 respectfully dissent.

{4 29} In today's opinion, the plurality takes a step away from the independent

tort that the court recognized in Biddle v. Warren Gen. Hosp. (1999), 86 Ohio

St.3d 395, 715 N.E.2d 518, and recognizes a new tort creating liability on the partof opposing counsel for use of medical records received pursuant to a properlyissued subpoena when a patient waived the physician-patient privilege. Thisholding constitutes a usurpation of the.role of the legislative branch of govern-ment and amounts to judicially legislating from the bench.

{9 30} Notably, in Bidd[e, the court narrowly held that a third party, could be

liable for inducing the unauthorized unprivileged disclosure of nonpublic medicalinformation that a physician or hospital learned within a physician-patientrelationship. There, to determine whether a third party can be held liable forinducing the disclosure of private medical records, we established a three-parttest. To be liable, the third party must have (1) knowledge of the existence of aphysician-patient relationship, (2) an intent to induce disclosure of informationabout the patient, and (3) no reasonable belief that the physician could disclosethe information without violating the physieian's duty of confidentiality. Id. at

408, 715 N.E.2d 518.

119 Ohio St.3d] HAGEMAN v. SW GEN. HEALTH CTR.Dissenting Opinion, per O'Dannell, J.

193

{431} In Biddde, we stated, "[T]he hospital's general consent form did notprovide the authority to release medical information to the law firm and,therefore, the disclosures were unauthorized." Id. at 407, 715 N.E.2d 518.

{9 32} Here, however, Biddle is inapplicable for at least two reasons: one,Hageman waived privilege by placing his medical conditibn at issue in thelitigation, and two, the attorney, Belovich, reasonably believed that Dr. Thysserilcould disclose Hageman's medical information without violating the physician-patient privilege because it had been waived Accordingly, in my view, theholding in this case is a dramatic departure from the narrow holding in Biddte,and I am unable to join this majority.

{4 33} Here, Hageman waived the statutory physician-patient privilege byfiling a counterclaim seeking custody of his minor child in the pending divorceaction. Gill v. Gill, 8th Dist. No. 81463, 2003-Ohio-180, 919. Hageman's waiverpermitted opposing counsel to subpoena the medical records held by Hageman'sphysician, who could have been compelled to testify about or submit discoveryrelated to Hageman's physical or mental conditions relevant to that proceeding.R. C. 2317.02(B )(3)(a).

{434} Furthermore, while the divorce was pending, Hageman allegedly as-saulted his wife at their home, and his wife had obtained a civil domestic-violenceprotection order in that pending divorce. Therefore, Hageman's claims thatwaiver applied only to the divorce proceeding and not the civil domestic-violenceprotection order are without merit because they arise from the same case.'

{435} Because Hageman placed his mental condition at issue and because hisbehavior was such that the divorce court had issued a civil domestic-violenceprotection order, Be)ovich, in her duty to represent her client, subpoenaedHageman's medical records from his treating physician.

17361 The record reveals that Hageman's physician, Dr. Thysseril, releasedthe records to Belovich in response to the subpoena without contesting thematter. Moreover, the appellate court here affirmed the trial court's grant ofsummaiy judgment to the physician who released those records because Hage-man had, in effect, waived his physician-patient privilege. Hageman v. Southrwest Gen. Health Ctr., Cuyahoga App. No. 87826, 2006-Ohio-6765, 2006 WL3743095, 4 29.

{9 37} In my view, the issue in this case concerns the scope of Hageman'swaiver of the physician-patient privilege. The plurality, without citing any law tosupport its position, states °[Tlhere is neither a legal justification for nor a

1. The disclosure at issue here was inade to the prosecutor in the separate but related criminal csseagainst Hageinan far the alleged assault on his wife.

194 SUPREME COURT, JANUARY TERM, 2008 [119 OMo St.3dDissenting OpLdon, per O'Donnell, J.

practical benefit to the proposition that a waiver for a specific, limited purpose isa waiver for another purpose." I respectfully disagree.

{9 38} Hageman engaged in confidential communications with his physicianregarding his medical condition, but voluntarily waived that confidentiality byfiling a lawsuit that placed his medical condition at issue. Hageman first learnedthat opposing counsel had his medical records on October 17, 2003, when heappeared at the domestic relations court for a scheduled hearing on the civildomestic-violence protection order. Although he was aware that Belovich hadthe records, he did not seek a protective order from the court to limit the use ofthe medical records, nor did he seek any agreeinent with opposing counsel tomaintain this confidentiality. As counsel for his wife, Belovich had no duty to

preserve the confidentiality of his medical information.{11 39} I agree with the plurality's conclusion that the ptysician-patient privi-

lege and the federal Health Information Portability and Accountability Act of1996 ("HIPAA") demonstrate a public policy favoring the confidentiality ofpersonal medical records. But in my view, that confidentiality applies only in thecontext of medical records maintained by a healthcare provider or other entityspecifically described in those statutes. Thus, I cannot agree that HIPAA or theprivilege supports a broad public policy favoring the confidentiality of medicalinformation held by someone who has no statutory or common law duty to the

patient and is, in fact, an adversary of the patient.{1140} The underlying purpose of the physician-patient privilege and its

resulting confidentiality is to encourage patients to freely disclose all necessaryinformation to their physicians, no matter how private or potentially embarrass-ing, in order to facilitate the proper treatment of thepatient's medical condition.

Oltio State Med. Bd v. Miller (1989), 44 Ohio St.3d 136, 139, 541 N.E.2d 602.

The privilege did not exist at common law and therefore must be strictlyconstrued against the party seeking to assert it. Id. at 140, 541 N.E.2d 602.Moreover, the purpose of the privilege is not furthered by permitting a party toinvoke it after he has placed his health at issue in a legal proceeding.

{441} Several jurisdictions recognize that the waiver of the physician-patientprivilege at trial should bar a claim of privilege at a subsequent

656, 659, 737Menda v. Springfeld Radiologists, Inc (2000), 136 Ohio App.3d

N.E.2d 590; People v. Bloom (1908), 193 N.Y. 1, 7, 85 N.E. 824; State v. Mincey

(1984), 141 Ariz. 425, 439, 687 P.2d 1180. See also Wigmore, Evidence(McNaughton Ed. 1961) Section 2389(d)(4) ("A waiver at a former trial should bara claim of the privilege at a later trial, for the original disciosure takes away onceand for all the confidentiality sought to be protected by the privilege. To enforceit thereafter is to seek. to preserve a privacy which exists in legal fiction only."[Emphasis omitted.]) These cases generally stand for the proposition that once

119 Ohio St.3d] HAGEMAN v. SW GEN. HEALTH CTR.Dissenting Opinion, per 0'Dnnnen, J.

195

confidential information is made public, it cannot be hidden or concealed again-the proverbial bell cannot be unrung. Although these esses address situations inwhich the confidential infoimation was disclosed in a publlc courtroom, theyrecognize that a waiver of the privilege is general, ratlier than limited, becauseonce the inf'ormation is disclosed, there is nothing left to protect. People at 10,85 N.E. 824 ("The statute as a matter of public policy gave the defendant apersonal privilege, but he intentionally surrendered it, and the surrender wasunconditional by operation of laV').

11421 In contrast, the Michigan Supreme Court has recognized that a party'sfailure to assert a privilege during the course of discovery has waived theprivilege for purposes of the litigation at hand, but has not waived it for thepurposes of any other action. See Landelius v. Sackellares (1996), 453 Mich. 470,475, 556 N.W.2d 472. Notably, however, this hold'uig relies upon an expressprovision in Michigan Civ.R. 2.314(B)(1), which reads: "A party who has a validprivilege may assert the privilege and prevent discovery of inedical informationrelating to his or her mental or physical condition. The privilege inust beasserted in the party's written response to a request for production of documentsunder MCR 2.310, in answers to interrogatories under MCR 2.309(B), before orduring the taldng of a deposition, or by moving for a protective order under MCR2.302(C). A privilege not timely asserted is waived in that action, but is notwaived for the purposes of any other action."

{443} Ohio has no such corresponding rule. Rather,the General Assemblyhas expressed its intention to limit the scope of a party's waiver of the physician-patient privilege iu only one context-when the patient is decensed and there is adispute regarding the patient's competency at the time he executed a document.In that context alone, R.C. 2317.02(B)(1)(e)(v) provides: "A person to whoinprotected health information is disclosed under division (B)(1)(e)(i) [providing fordisclosure when the patient is deceased and his earlier competency to execute adocument is disputed] of this section shall not use or disclose the protected healthinformation for any purpose otlier than the litigation or proceeding for which theinformation was requested and shall return the protected health information tothe covered entity or destroy the protected health information, including allcopies made, at the conclusion of the litigation or proceeding."

{444} Applying the maxim "expressio unius est exclusio alterius," I wouldassert that the legislature's express limitation of the waiver to the litigation orproceeding for which the information was requested in one circumstance impliesthat in all other circumstances, the waiver of the physician-patient privilegeshould be broadly interpreted.

{945} The majority, however, limits the scope of the waiver, -creates a newduty upon attorneys to protect the confidentiality of an adversary's medical

196 SUPREME COURT, JANUARY TERM, 2008 [119 Ohio St.3dAttorneys

records properly obtained in the course of litigation, and imposes liability fortheir unauthorized disclosure-even if disclosure of that evidence is relevant andfavorable to their client in a separate but related proceeding. The majorityannounces this new tort without setting forth its elements or speoil'ying the

appropriate measure of damages for violation.{9146} While there may be compelling public policy reasons for imposing a duty

to maintain the eonfidetltiality of a patient's medical records when they areproduced to opposing counsel in the course of litigation, "the legislative branch is

'the ultimate arbiter of public policy."' Arbino v. Johnson & Johnson, 116 Ohio

St.3d 468, 2007-Ghio-6948, 880 N.E.2d 420, 4 21, quoting State ex reG Cincinnati

Enquirer, Div. of Gannett Satellite Information Netuwrk v. Dupuis, 98 Ohio

St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, 9121. Thus, the legislature is theproper branch of govermnent to consider and announce such a cause of action if itdeems it advisable. The majority today invades the province of the legislature by

judicially creating this new cause of action.{9 47} Hageman waived his physician-patient privilege by filing a counterclaim

in the divorce action, thereby placing his medical condition at issue, and failed tocontest the disclosure of his medical records by his physician. Under thesecircumstances, the attorney who lawfully came into possession of the records,whieh were no longer privileged, owed no duty to Hageman. Rather, in theproper representation of her client, who allegedly had been the victim of anassault, she provided the information to the prosecuting attorney. Today's

decision takes a step away from Biddle, in which the hospital released patient

medical records to its own counsel. Here, opposing caunsel obtained the medicalrecords through the use of a properly issued subpoena by operation of law.Nothing in our prior case, however, would suggest that opposing counsel owedany duty whatsoever to the opposing party to maintain the confidentiality of themedical information. The very purpose of permitting its discovery is to allow itsexamination and use by opposing counsel in furtherance of the cause of a client.Accordingly, I would reverse the judgment of the court of appeals.

LUNDBERG STRA1,'roN, J., concurs in the foregoing opinion.

James E. Boulas Co., L.P.A., and James E. Boulas, for appellee Kenneth

Hageman.

Law Office of Jacob Kronenberg and Jacob A.H. Kronenberg, for appellant.

119 Ohio St.3d] STATE v. BAKEROpinion, per Lanzinger, J.

197

STATE OF OBlo, APPELLEE, U. BAI[EE, APPELLANT.

[Cite as State v. Bakei; 119 Ohio St.3d 197, 2008-Ohio-3330.7Criminal law-Tud,qment of conviction-Final appealable order-CrinaR. 32(C),

explained.

(No. 2007-1184--Submitted February 27, 2008-Decided July 9, 2008.)

CER'nelcn by the Court of Appeals for Summit County, No. 23713.

SYLLAIIUS OF THB COURT

A judgment of conviction is a final appealable order under R.C. 2505.02 when itsets forth (1) the guilty plea, the jury verdiet, or the finding ofthe courtupon which the conviction is based; (2) the sentence; (3) the signature of thejndge; and (4) entry on the journal by the clerlc of court. (Crim.R.32(C),explained.)

See: West's Ohio Digest, Criminal Law <S-1023(11).

LANZINGER, J.

{91} This case was accepted as a certified conflict between the Ninth andTwelfth District Courts of Appeals to resolve what a judgmeut of conviction mustinclude pursuant toCrim.R. 32(C) to become a final appealable order. See R.C.Z505.02, delineating final appealable orders. Two interrelated issues are includedin this appeal, first, wbether "the plea, the verdict or fmdings, and the sentence,"Crim.R. 32(C), must be contained in one document; and second, whether thejudgment of conviction lnnst include the plea entered at arraignment We holdthat the judgment of conviction is a single document that need not necessarilyinclude the plea entered at arraignlnent.

1. Background

{9 2} Appellant, Jermaine Baker, was convicted after a jury trial of havingweapons under disability and obstructing official business.l The judgment ofconvictiott, entered April 9, 2007, stated that "the Defendant was found GUILTY

by a Jmy Trial "°i '." The judgment of conviction did not state that Baker had

previously entered a not guilty plea at his arraignment on October 6, 2006,

1. 'rhe jur,y also found Baker not guilty of the offenses of receiving stolen property and possession ofc,ack cocaine, aod the com•t dLected a verdict for him on the offenses of possession of marijuana,possession of drugs, and disorder(y conducG