Chlebina v. Landmark Partners

[Cite as Chlebina v. Landmark Partners, 2023-Ohio-4403.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

JOHN CHLEBINA, et al. C.A. No. 30747

Appellees

v. APPEAL FROM JUDGMENT

ENTERED IN THE

LANDMARK PARTNERS, et al. COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

Appellants CASE No. CV-2021-04-1306

DECISION AND JOURNAL ENTRY

Dated: December 6, 2023

CARR, Judge.

{¶1} Defendants-Appellants Landmark 2 Limited Liability Company, Landmark 4

Limited Liability Company, and Steve R. Swain (collectively “Landmark”) appeal the decision of

the Summit County Court of Common Pleas. This Court dismisses the appeal in part and affirms

in part.

I.

{¶2} This appeal arises from a discovery dispute between Landmark and Plaintiffs-

Appellees John and Mary K. Chlebina (collectively “the Chlebinas”). The underlying dispute

centers around a 2001 settlement agreement entered into by the Chlebinas, Landmark Partners,

and Landmark 2 Limited Liability Company addressing oil and gas rights and responsibilities

related to property owned by John Chlebina, and in which Mary K. Chlebina has a dower interest.

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{¶3} In 2021, the Chlebinas filed a complaint for breach of contract, common law

trespass, and statutory trespass against Landmark Partners and Landmark.1 Essentially, the

Chlebinas alleged that Landmark and Landmark Partners violated the settlement agreement by

seeking to perform a directional drill of a particular well. The Chlebinas maintained that the drill

was prohibited because a drill of a different well was not successful as specified in the settlement

agreement.

{¶4} In response, Landmark filed an answer as well as counterclaims and a third-party

complaint, which were subsequently amended. The amended third-party complaint named

Commonwealth Properties, Inc. as the third-party defendant.

{¶5} Discovery disputes ensued. In the fall 2022, Landmark filed several motions

related to limiting the scope of questioning of Mr. Swain with respect to issues that touched upon

trade secrets. Following an in camera review, in January 2023, the trial court found that a

document known as Landmark-TS 0014-52 contained trade secrets and was not subject to

discovery. The trial court denied the remainder of Landmark’s motion for a protective order as

premature and overbroad.

{¶6} In March 2023, the Chlebinas filed a motion to compel non-party witness Geoffrey

Gordon-Creed to answer deposition questions he was instructed not to answer at his deposition

and to craft a protective order authorizing the discovery if appropriate. Landmark opposed the

motion and sought a protective order shielding Mr. Gordon-Creed from having to disclose any

trade secret information developed around 2017 or later. Landmark sought to prevent the

discovery of the research, strategies, and methodologies with respect to where to drill, the

substances used in the process of drilling, and how to extract the oils and gas from the rock.

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Landmark Partners was ultimately dismissed as a party from the lawsuit.

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Landmark argued that that information constituted trade secrets. Landmark also argued that the

information sought was not relevant to the claims raised.

{¶7} In May 2023, the trial court issued an order concluding that the Chlebinas sought

the answers to the following five questions:

1. What discussion did Mr. Gordon-Creed have with Mr. Swain during or around

2017 with regard to Landmark 2’s plans or intentions with regard to well 6F2 –

specifically deepening that well or recompleting the well at its existing location –

and why those plans made sense? []

2. What specific information did Mr. Gordon-Creed rely on or did Mr. Swain

provide to him regarding the plans for well 6F2 in or around 2017? []

3. What about the particular time frame of 2017, what was happening in or around

2017 or what were the reasons why Landmark 2 decide[d] on a plan to recomplete

well 6F2 in or around 2017? []

4. What specific reasons or issues changed or became different in 2017 from

previous years that led Landmark 2 to plan to deepen or directionally drill well 6F2?

[]

5. What was done during 2017 and thereafter by Landmark 2 and Landmark 4 to

begin the process to recomplete wells 6F and 7F? []

{¶8} The trial court ordered Mr. Gordon-Creed to respond to the questions, under oath

and in writing, directly to the trial court and provide any documentation that he relied upon in

answering the questions. In addition, Landmark was ordered to provide the trial court with any

documentation to support the position that the answers constituted trade secrets. The trial court

would then conduct an in camera review of the provided information.

{¶9} On May 16, 2023, Landmark filed a notice that it had submitted certain documents

for in camera review to the trial court via email. The notice indicated that other documents were

previously submitted for in camera review in December 2022, and were resubmitted as part of the

current response to the trial court’s order.

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{¶10} On May 31, 2023, the trial court issued an entry granting the Chlebinas’ motion to

compel Mr. Gordon-Creed’s answers to the deposition questions. The trial court concluded that

Landmark failed to establish the information contained trade secrets. The trial court ordered

Landmark to provide the answers to the questions to the Chlebinas within 14 days. It further

advised Landmark that, “[p]rior to providing copies of Mr. Gordon-Creed’s answers to Plaintiffs,

Defendants may file Mr. Gordon-Creed’s answers and the supporting documentation provided to

the Court with the Clerk of Summit County Court of Common Pleas, under seal. If said items are

filed, this Court orders that the documents filed under seal shall not be made available without

further Order of this Court[.]” (Emphasis omitted.)

{¶11} Landmark filed a motion to stay the proceedings pending appeal and also appealed

the order. Landmark did not file the materials submitted for in camera inspection under seal with

the clerk of courts as suggested by the trial court in its entry. The trial court granted the motion to

stay. Landmark has raised two assignments of error for this Court’s review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY GRANTING APPELLEES JOHN AND

MARK K. CHLEBINA’S MOTION TO COMPEL GEOFFREY GORDEN-

CREED TO ANSWER DEPOSITION QUESTIONS BECAUSE INFORMATION

REGARDING LANDMARK’S RESEARCH, PLANNING, AND DECISION-

MAKING PROCESS DURING 2017 AND THEREAFTER IS NOT

DISCOVERABLE UNDER CIV.R 26(B)(1).

{¶12} Landmark argues in its first assignment of error that the trial court erred in allowing

the discovery sought by the Chlebinas as it failed to meet the requirements of Civ.R. 26(B)(1).

Landmark maintains the discovery was not relevant and the trial court failed to consider if the

discovery was “proportional to the needs of the case, considering the importance of the issues at

stake in the action, the amount in controversy, the parties’ relative access to relevant information,

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the parties’ resources, the importance of the discovery in resolving the issues, and whether the

burden or expense of the proposed discovery outweighs its likely benefit.” Civ.R. 26(B)(1).

{¶13} As a preliminary matter, this Court is obligated to raise sua sponte questions related

to our jurisdiction. Whitaker–Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186

(1972). This Court has jurisdiction to hear appeals only from final judgments. Article IV, Section

3(B)(2), Ohio Constitution; R.C. 2501.02.

{¶14} “Generally, trial court orders addressing discovery issues are merely interlocutory

and not immediately appealable.” Brown v. Manorcare Health Servs., 9th Dist. Summit No.

27412, 2015-Ohio-857, ¶ 8, quoting Bowers v. Craven, 9th Dist. Summit No. 25717, 2012-Ohio-

332, ¶ 14. “Nevertheless, the legislature has carved out certain limited exceptions to the general

rule.” Brown at ¶ 8. Relevant to this appeal, R.C. 2505.02(B)(4) states:

An order is a final order that may be reviewed, affirmed, modified, or reversed,

with or without retrial, when it is one of the following:

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(4) An order that grants or denies a provisional remedy and to which both of the

following apply:

(a) The order in effect determines the action with respect to the provisional remedy

and prevents a judgment in the action in favor of the appealing party with respect

to the provisional remedy.

(b) The appealing party would not be afforded a meaningful or effective remedy by

an appeal following final judgment as to all proceedings, issues, claims, and parties

in the action.

{¶15} “‘Provisional remedy’ means a proceeding ancillary to an action, including * * *

discovery of privileged matter * * *.” R.C. 2505.02(A)(3). “Pursuant to R.C. 2505.02(B)(4), we

have held that ‘[a] trial court’s order is final and appealable to the extent it compels production of

claimed privileged materials.’” Medas v. Monyak, 9th Dist. Lorain No. 13CA010487, 2015-Ohio-

1252, ¶ 23, quoting Peppeard v. Summit Cty., 9th Dist. Summit No. 25057, 2010-Ohio-2862, ¶ 10.

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“This Court has determined that an order which compels the discovery of trade secrets may be

final and appealable as a provisional remedy.” Natl. Interstate Corp. v. West, 9th Dist. Summit

No. 23877, 2008-Ohio-1057, ¶ 9.

{¶16} Here, in this assignment of error, the focus of Landmark’s argument is not the

privileged nature of the discovery but the lack of relevancy of the material and the trial court’s

failure to fully consider Civ.R. 26(B)(1) in rendering its decision. However, these are not concerns

that can be addressed at this time. To the extent that Landmark’s motion was based upon a

relevancy argument and related Civ.R. 26(B)(1) concerns, and to the extent that the trial court

implicitly concluded that the discovery was relevant, the trial court’s ruling is not appealable. Lytle

v. Mathew, 9th Dist. Summit No. 26932, 2014-Ohio-1606, ¶ 10; Brown at ¶ 14.

{¶17} This assignment of error stems from a portion of the order that is not appealable

and thus cannot be addressed.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY GRANTING APPELLEES JOHN AND

MARK K. CHLEBINA’S MOTION TO COMPEL GEOFFREY GORDON-

CREED TO ANSWER DEPOSITION QUESTIONS BECAUSE THE ANSWERS

TO THE TRIAL COURT’S FIVE WRITTEN QUESTIONS POSED TO GEOFF

GORDON-CREED CONTAIN PRIVILEGED CONFIDENTIAL BUSINESS

INFORMATION AND TRADE SECRETS, THE DISCLOSURE OF WHICH

WOULD DO IMMEASURABLE DAMAGE TO LANDMARK,

OUTWEIGHING ANY POTENTIAL BENEFIT IN THE CASE.

{¶18} Landmark asserts in its second assignment of error that the trial court erred in

compelling discovery that was privileged as it constituted trade secrets.

{¶19} Pursuant to App.R. 9(A), the record on appeal consists of “[t]he original papers and

exhibits thereto filed in the trial court, the transcript of proceedings, if any including exhibits, and

a certified copy of the docket and journal entries prepared by the clerk of the trial court * * *.” “It

is an appellant’s burden to ensure that the record is complete on appeal.” Auth v. Industrial

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Physical Capability Servs., Inc., 9th Dist. Summit No. 28024, 2017-Ohio-1268, ¶ 15, quoting State

v. Vu, 9th Dist. Medina No. 11CA0042-M, 2012-Ohio-746, ¶ 27. “Likewise, ‘[i]t is an appellant’s

duty to ensure that the record, or the portion necessary for review on appeal, is filed with the

appellate court.’” Auth at ¶ 15, quoting Swedlow v. Riegler, 9th Dist. Summit No. 26710, 2013-

Ohio-5562, ¶ 14, quoting Shumate v. Shumate, 9th Dist. Lorain No. 09CA009707, 2010-Ohio-

5062, ¶ 6; App.R. 9(B). “In the absence of a complete record, this Court is obligated to presume

regularity in the proceedings below.” Auth at ¶ 15, quoting King v. Carleton, 9th Dist. Lorain No.

13CA010374, 2013-Ohio-5781, ¶ 30.

{¶20} Upon review, the record does not contain Mr. Gordon-Creed’s answers or the

accompanying documents. Thus, the record does not contain the discovery that Landmark sought

to protect from disclosure. While Landmark did file notices, one in December 2022 and one in

May 2023, indicating that it provided certain discovery to the trial court for in camera review, the

documents themselves were not filed thereafter under seal. Notably, the trial court even informed

Landmark in its order that Landmark could file the materials with the clerk’s office under seal and

the materials would not be accessible except by order of the court.

{¶21} “As the appellant, it was [Landmark’s] burden to ensure that those materials were

filed in the court below such that they would be part of the record on appeal.” Auth at ¶ 16.

Because the record does not contain the materials that were at issue in the trial court’s order, this

Court is required to presume regularity and affirm the decision of the trial court to order disclosure

of the answers on the basis that they were not trade secrets. Id.

{¶22} Landmark’s second assignment of error is overruled.

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III.

{¶23} We are without jurisdiction to consider Landmark’s first assignment of error and

its second assignment of error is overruled. The appeal is dismissed in part, and the judgment of

the Summit County Court of Common Pleas is affirmed in part.

Appeal dismissed in part,

and judgment affirmed in part.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

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(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellants.

DONNA J. CARR

FOR THE COURT

SUTTON, P. J.

FLAGG LANZINGER, J.

CONCUR.

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APPEARANCES:

MARSHAL PITCHFORD and KATHRYN VADAS, Attorneys at Law, for Appellants.

JOHN W. BECKER and CHRISTINE M. GARRITANO, Attorneys at Law, for Appellees.