COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70818 FASTENERS FOR RETAIL, INC. : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JEFFREY B. PECK : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 3, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. 306033 JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JOHN R. CERNELICH (#00346947) CALFEE, HALTER & GRISWOLD 800 Superior Avenue - Suite 1400 Cleveland, OH 44114-2688 For Defendant-Appellant: NIKI Z. SCHWARTZ (#0000089) ORVILLE E. STIFEL, II (#0039776) GOLD, ROTATORI & SCHWARTZ CO., L.P.A. 1500 Leader Building Cleveland, OH 44114 - 2 - SPELLACY, J.: Defendant-appellant, Jeffrey B. Peck ("appellant"), challenges an order issued by the trial court requiring him to answer interrogatories issued by plaintiff-appellee, Fasteners For Retail, Inc. ("appellee"). Appellant assigns the following error for our review: THE TRIAL COURT ERRED IN OVERRULING APPEL- LANT'S CIVIL RULE 12 MOTION TO DISMISS, AND ORDERING APPELLANT TO ANSWER APPELLEE'S STATUTORY (R.C. 2317.48) DISCOVERY COMPLAINT AND INTERROGATORIES. Finding appellant's appeal to have merit, we reverse the order of the trial court. I. On April, 1, 1996, the appellee filed a complaint captioned "Verified Complaint: Action for Discovery." Appellee's complaint, as filed per R.C. 2317.48, sought the appellant's answers to eleven interrogatories. On May 7, 1996, appellant filed a motion to dismiss appellee's complaint per Civ.R. 12 on the basis that "appellee's complaint for discovery fails to state a claim for which relief can be granted" and "fails to set forth the 'facts sought and deemed necessary to state a cause of action' as required by R.C. 2317.48 * * *." On May 16, 1996, the trial court overruled appellant's motion to dismiss and ordered appellant to answer the complaint and interrogatories. - 3 - II. Appellee is an Ohio corporation engaged in the business of selling merchandising, sign and display accessories. Appellant served as President for appellee pursuant to an "Employment Agreement" from November 1, 1991, through October 1, 1994, when he was terminated by appellee. The employment agreement entered into between appellant and appellee contained a "non-compete" clause which prohibited appellant, for a period of three years, from engaging in any form of activity which is competitive with the business of appellee. Following appellant's termination, appellee became concerned that appellant was in breach of, or was going to breach the non- compete clause set forth in the employment agreement. As a result, appellee sought to obtain information from appellant regarding a new corporation which appellant had set up. Appellant, however, refused to provide appellee with the requested information. III. In his sole assignment of error, appellant contends that the trial court erred in overruling his motion to dismiss and ordering him to answer appellee's complaint and interrogatories. In particular, appellant argues that a party is not entitled to discovery under R.C. 2317.48 to determine whether a cause of action exists. Appellant's sole assignment of error is well taken, and the judgment of the trial court is reversed. - 4 - R.C. 2317.48 has been construed by the Ohio Supreme Court to provide a "satisfactory middle course" for litigants who require additional facts in order to sufficiently file a valid complaint, but who already have enough factual basis for their assertions that the discovery process would not be turned into a 'fishing expedi- tion.'" Poulos v. Parker Sweeper Co. (1989), 44 Ohio St.3d 124, at 126-127. R.C. 2317.48 provides: When a person claiming to have a cause of action or a defense to an action commenced against him, without the discovery of a fact from the adverse party, is unable to file his complaint or answer, he may bring an action for discovery, setting forth in his complaint in the action for discovery the necessity and the grounds for the action, with any interroga- tories relating to the subject matter of the discovery that are necessary to procure the discovery sought. Unless a motion to dismiss the action is filed under Civ.R. 12, the complaint shall be fully and directly answered under oath by the defendant. Upon the final disposition of the action, the costs of the action shall be taxed in the manner the court deems equitable. Clearly, the statute is designed to allow a person who may have a cause of action to discover the potential grounds thereof before commencing suit. See Slabinski v. Servisteel Corp. (1985), 22 Ohio App.3d 74. This court, in Kimpo v. Parma Community General Hospital (May 12, 1988), Cuyahoga App.No. 53802, unreported, has also examined the issue of an action for discovery brought per R.C. 2317.48 and held that: - 5 - Courts have held "that a discovery com- plaint must contain a sufficient statement of facts to show that the matter sought to be discovered is pertinent to the issue of the action that is to be filed. Otherwise, the complaint for discovery is limited to those situations where there is a viable cause of action pending or imminent. R.C. 2317.48 is not a tool for an unbridled 'fishing expedi- tion'." Olds v. Westfield Co. (Feb. 9, 1987), Stark App. No. CA-6981, unreported; Webler v. Westfield Co. (Nov. 17, 1986), Stark App. No. CA-6901, unreported. A party is not entitled to discovery in order to determine whether she has a cause of action. Olds, supra. In the present case, appellee never describes or develops a possible cause of action against appellant. Appellee clearly states in its complaint that it is trying to determine if a cause of action exists against appellant for violation of his non- compete clause. Moreover, appellee failed to plead sufficient facts to establish a cause of action. The fact that appellee had a suspicion or hunch that appellant may have breached the non- compete clause contained in the employment agreement is not enough to satisfy the requirements set forth in R.C. 2317.48. The statute and case law clearly provide that one is not entitled to discovery "unless and until it is clear that a viable cause exists." Webler, supra; See also Hadlock v. Burke (July 15, 1993), Cuyahoga App. No. 63127, unreported; Hadlock v. McFaul (December 10, 1992), Cuyahoga App. No. 63592, unreported. A complete review of appellee's complaint for discovery fails to disclose sufficient facts which raise any justiciable cause of action against appellant. Mere suspicion on the part of appellee - 6 - does not create a viable cause of action. Thus, discovery is not permissible per R.C. 2317.48 and the trial court improperly overruled appellant's motion to dismiss and ordered appellant to answer appellee's complaint and interrogatories. Accordingly, appellant's appeal is sustained. Judgment reversed. - 7 - This cause is reversed. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, P.J. and KENNETH A. ROCCO, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .