COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72131 STEPHANIE TUBBS JONES, ET AL.,: : Plaintiffs-Appellants : JOURNAL ENTRY : and vs. : OPINION : McDONALD & COMPANY SECURITIES,: INC., ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 26, 1997 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 293874 JUDGMENT : DISMISSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: Edward C. Coaxum, Jr. COAXUM AND HEWITT The 820 Building, #650 820 W. Superior Avenue Cleveland, Ohio 44113-1800 Angeline G. Chen Andrew N. Friedman Herbert E. Milstein COHEN, MILSTEIN, HAUSFIELD & TOLL 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, D.C. 20005 For defendant-appellee, Brian M. Eisenberg McDonald & Company Matthew Burke Securities, Inc.: Joseph A. Castrodale Mark I. Wallach CALFEE, HALTER & GRISWOLD 1400 McDonald Investment Center 800 Superior Avenue Cleveland, Ohio 44114-2688 For defendant-appellee, Kenneth A. Bravo Dean Witter Reynolds, Kendra J. Eason Inc.: Michael N. Ungar ULMER & BERNE 900 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114-1583 For defendant-appellee, Samuel J. Winer Everen Securities, Inc.: Kenneth B. Winer FOLEY & LARDNER Washington Harbour, #500 3000 K Street, N.W. Washington, D.C. 20007-5109 Steven Miller GOODMAN, WEISS, MILLER & GOLDFARB 100 Erieview Plaza 27th Floor Cleveland, Ohio 44114 For defendant-appellee, Lori B. Leskin Kidder Peabody & Co., Inc.: Gregory J. Wallance KAYE, SCHOLER, FIERMAN, HAYS & HANDLER 425 Park Avenue New York, New York 10022 Robert J. Rotatori John S. Pyle GOLD, ROTATORI & SCHWARTZ 1500 Leader Building 526 Superior Avenue, N.E. Cleveland, Ohio 44114 3 For defendant-appellee, Robert W. Hamilton National City Bank: Katherine Bryan Jenks Tracy S. Johnson John M. Newman, Jr. JONES, DAY, REAVIS & POGUE North Point 901 Lakeside Avenue Cleveland, Ohio 44114 For defendant-appellee, James J. Bartolozzi Smith Barney, Inc.: KAHN, KLEINMAN, YANOWITZ & ARNSON CO., LPA Tower at Erieview Suite 2600 Cleveland, Ohio 44114-1824 David Anders James W.B. Benkard Sharon Katz DAVIS, POLK & WARDWELL 450 Lexington Avenue New York, New York 10017 For defendant-appellee, Karen Seawall Tucker Anthony, Inc.: David J. Tocco VORYS, SATER, SEYMOUR & PEASE 2100 One Cleveland Center 1375 East Ninth Street Cleveland, Ohio 44114 David S. Cupps VORYS, SATER, SEYMOUR & PEASE 52 E. Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 *VICTOR, P.J.: Appellees' Motion to Dismiss is granted. The order disqualifying the Prosecutor's Office is not a final appealable order pursuant to R.C. 2505.02. The underlying action in this case is one for damages sounding in fraud and negligence, an action known at common law. Accordingly, the order was not made in a special proceeding, and it is not an order subject to interlocutory appeal. See, Walters v. Enrichment Ctr. of Wishing Well, Inc. (1997), 78 Ohio St.3d 118; Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213, syllabus. Costs divided between plaintiffs-appellants and defendants- appellees. *ABOOD, J., CONCURS IN JUDGMENT ONLY. (*SITTING BY ASSIGNMENT: Retired Judge Charles D. Abood, Sixth Appellate District) *STRAUSBAUGH, J., CONCURS WITH SEPARATE CONCURRING *WILLIAM H. VICTOR OPINION. PRESIDING JUDGE (*SITTING BY ASSIGNMENT: (*SITTING BY ASSIGNMENT: Retired Retired Judge Dean Judge William H. Victor, Ninth Strausbaugh, Tenth Appellate District) Appellate District) N.B. This entry 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(E) 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72131 STEPHANIE TUBBS JONES, ET AL. : : C O N C U R R I N G PLAINTIFFS-APPELLANTS : : O P I N I O N v. : : McDONALD & COMPANY SECURITIES,: INC., ET AL. : : DEFENDANTS-APPELLEES : : DATE: NOVEMBER 26, 1997 STRAUSBAUGH, DEAN, J., CONCURRING: I respectfully concur in the foregoing opinion. Based upon the Supreme Court's recent pronouncement in Walters v. Enrichment Crt. Of Wishing Well, Inc. (1997), 78 Ohio St.3d 118, this court must conclude that jurisdiction to hear this matter is lacking since the decision rendered by the trial court was not a final appealable order. However, I would further note that even had a final order been rendered, I would be compelled to affirm the trial court's order. While the appellants advance many and varied arguments to support their position, it is clear that the trial court was acting within its discretion. A trial court has the duty and responsibility to supervise the conduct of attorneys who appear before it and its rulings will be upheld unless the court abused its discretion. 155 N. High, Ltd. v. Cincinnati Ins. Co. (1995), 72 Ohio St.3d 423, citing to Royal Indemn. Co. v. J.C. Penney Co. (1986), 27 Ohio St.3d 31. An abuse of discretion connotes more 3 than an error of law or judgment, it implies that the trial court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. In the case presently before this court, I would find that the trial court heard and carefully considered the evidence, and as indicated by its written opinion, based its decision on sound reasoning. The court found the prosecutor's use of the grand jury process for the gathering of evidence in a civil case questionable; found that the prosecutor's office frustrated, and continues to frustrate, discovery; and found that one prosecutor engaged in spoliation of records. The trial court notes that Mrs. Jones was publically thanked in the minutes of the County Commissioners' meeting leaving questions as to the involvement of the office in the decision to liquidate the SAFE Fund. Finally, it is noteworthy that the trial court cited to Verbanic v. Verbanic (1994), 70 Ohio St.3d 41, where the Supreme Court found that, Our system of justice cannot survive without retaining the faith of the public in the essential fairness of the judicial process. Based upon this principle, and the evidence consideration given by the trial court to the evidence before it, .