KEVIN J. HOERIG, PLAINTIFF-APPELLANT, v. TIFFIN SCENIC STUDIOS, INC., ET AL., DEFENDANTS-APPELLEES.
CASE NO. 13-11-18
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
November 28, 2011
[Cite as Hoerig v. Tiffin Scenic Studios, Inc., 2011-Ohio-6103.]
PRESTON, J.
Appeal from Seneca County Common Pleas Court, Trial Court No. 10-CV-0248, Judgment Affirmed
Christopher S. Clark for Appellant
Barbara A. Knapic and Denise A. Gary for Appellee, Tiffin Scenic Studios, Inc.
Carolyn S. Bowe for Appellee, Industrial Commission of Ohio
PRESTON, J.
{¶1} Plaintiff-appellant, Kevin Hoerig (hereinafter “Hoerig“), appeals the Seneca County Court of Common Pleas’ verdict determining that he is not entitled to participate in the Ohio Workers’ Compensation Fund. For the reasons that follow, we affirm.
{¶2} On February 9, 2009, Hoerig was hanging theater stage curtains as a Tiffin Scenic Studios, Inc. (hereinafter “Scenic“) employee. (May 16, 2011 Tr. at 62). While hanging the curtains, Hoerig pulled a rope carrying draperies weighing approximately 140 pounds. (Id. at 68). Hoerig reached over his head to fasten the draperies. (Id. at 66). Hoerig alleges he injured his shoulder while reaching over his head to hang the stage curtains. (Id. at 69). Hoerig worked with Timothy Felter (hereinafter “Felter“) for the two days following his alleged injury. (Id. at 74-78).
{¶3} On February 20, 2009, Hoerig filed a claim with the Ohio Bureau of Workers’ Compensation (hereinafter “BWC“), alleging he had sprained his right rotator cuff while working for Scenic. The BWC disallowed Hoerig‘s claim. (Doc. No. 5). Hoerig appealed the BWC‘s decision. (Id.).
{¶4} On April 20, 2009, the District Hearing Officer with the Industrial Commission of Ohio (hereinafter “ICO“) held a hearing on Hoerig‘s appeal. (Id.). The District Hearing Officer allowed Hoerig‘s claim for the condition of “right
{¶5} On June 15, 2009, a Staff Hearing Officer with the ICO held a hearing on Scenic‘s appeal. (Id.). The Staff Hearing Officer affirmed the decision, allowing the claim for “right rotator cuff/shoulder strain.” (Id.). Scenic filed a second appeal with the ICO on July 7, 2009. (Doc. No. 11). The ICO refused the appeal on July 15, 2009. (Id.).
{¶6} On December 2, 2010, Scenic filed an appeal with the Seneca County Court of Common Pleas pursuant to
{¶7} On August 19, 2009, Hoerig filed a motion with the BWC requesting the additional condition of “tear right rotator cuff.” (Doc. No. 4). The BWC amended Hoerig‘s claim to include “tear rotator cuff, right” on August 28, 2009. (Id.). Scenic filed an appeal of the amended claim on September 11, 2009. (Id.).
{¶8} On December 11, 2009, the District Hearing Officer with the ICO held a hearing on Hoerig‘s additional condition of “tear rotator cuff, right.” (Doc. No. 5). The District Hearing Officer allowed the condition. (Id.). Scenic appealed the District Hearing Officer‘s decision. (Doc. No. 6).
{¶9} On February 3, 2010, the Staff Hearing Officer held a hearing and affirmed the District Hearing Officer‘s decision. (Id.). Scenic filed a second appeal on the additional condition. (Doc. No. 8). The ICO refused the appeal. (Id.).
{¶10} On April 27, 2010, Scenic filed an appeal of the additional condition “tear rotator cuff, right” with the Seneca County Court of Common Pleas pursuant to
{¶11} On June 16, 2010, Hoerig filed a motion with the BWC for the additional condition of “right bicipital tenosynovitis and right shoulder impingement.” (Doc. No. 4). The BWC allowed the additional condition of “right bicipital tenosynovitis and right shoulder impingement” on June 29, 2010 (Id.). Scenic appealed the BWC‘s order on July 12, 2010. (Id.).
{¶12} On August 5, 2010, the District Hearing Officer held a hearing on the additional condition. (Id.). The District Hearing Officer allowed the additional condition of “right bicipital tenosynovitis and right should impingement.” (Id.). Scenic appealed the order on August 23, 2010. (Doc. No. 6).
{¶13} On September 22, 2010, the Staff Hearing Officer held a hearing on Scenic‘s appeal. (Id.). The Staff Hearing Officer affirmed the District Hearing
{¶14} On November 4, 2010, Scenic filed an appeal of the order with the Seneca County Court of Common Pleas pursuant to
{¶15} On May 5, 2011, Scenic filed Defendant‘s “Motion to Quash the Subpoena Served by Plaintiff on Tim Felter.” (Doc. No. 39). The trial court granted Scenic‘s motion on May 6, 2011. (Doc. No. 43).
{¶16} On May 9, 2011, Hoerig filed a “Motion for Reconsideration of Court‘s Judgment Entry Granting Defendant‘s Motion to Quash Subpoena Served on Tim Felter with Memorandum in Support.” (Doc. No. 46). The trial court denied the motion for reconsideration on that same day. (Doc. No. 53).
{¶17} The Seneca County Court of Common Pleas held a jury trial from May 16, 2011 through May 18, 2011. (Doc. No. 69). The jury determined that Hoerig was not entitled to participate in the Ohio Workers’ Compensation Fund for the conditions of “right sprain rotator cuff, tear right rotator cuff, right bicipital tenosynovitis, and right shoulder impingement.” (Doc. No. 65-70). The Seneca
{¶18} Hoerig filed a notice of appeal on June 6, 2011, raising two assignments of error. We will address each assignment of error in turn.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED DEFENDANT‘S MOTION TO QUASH THE SUBPOENA SERVED UPON TIMOTHY FELTER AS DEFENDANT HAD NO STANDING PURSUANT TO CIV. R. 45.
{¶19} In his first assignment of error, Hoerig argues the trial court abused its discretion by granting Scenic‘s motion to quash the subpoena served on Felter. Hoerig argues Scenic did not have standing to file the motion to quash under rule 45 of the Ohio Rules of Civil Procedure. Hoerig relies on the language of the rule, which permits a court to quash a subpoena when it “[s]ubjects a person to undue burden.”
{¶20} In reviewing whether a trial court erred in granting a motion to quash a subpoena, this Court applies an abuse of discretion standard. State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469, 692 N.E.2d 198. An abuse of
{¶21} In order to have standing, a party must have an actual or imminent injury, there must be a causal connection between the injury and the conduct the party is addressing, and the court must be capable of redressing the injury with its decision. Lujan v. Defenders of Wildlife (1992), 504 U.S. 555, 560, 112 S. Ct. 2130.
{¶22} Courts have long considered a corporation a person for the purposes of the law. Lewis D. Johnson v. Humphrey PopCorn Co. (1902), 14 Ohio C.D. 135, 1902 WL 19738, *3. A corporation acts, in many respects, like a person. Cook Cty., Ill., v. U.S. ex rel. Chandler (2003), 538 U.S. 119, 125, 123 S.Ct. 1239. For example, a corporation may own property, enter into a contract, sue another party, and be sued. Id. As a corporation, Scenic is considered a person for the purposes of the law. Under a strict reading of
{¶23} Courts have recognized an undue burden as one that is “* * * excessive, immoderate, unwarranted.” Bonewitz v. Chevrolet (2001), 9th Dist. No. 01-CA-0006, at *2, citing Insulation Unlimited, Inc. v. Two J‘s Properties, Ltd. (1997), 95 Ohio Misc.2d 18, 28 (emphasis omitted). In its motion, Scenic included an affidavit of Brad Hussler, Scenic‘s President. (Doc. No. 39). The affidavit verified that Felter would be working for Scenic in Charlotte, North Carolina at the time of the trial. Id. Returning Felter to Ohio for the trial would cost Scenic over six thousand dollars in travel costs, overtime pay, and other expenses. Id. We cannot find that the trial court abused its discretion in determining that Scenic is a “person” under
{¶24} This ruling is also consistent with prior case law where courts have permitted employers to file motions to quash subpoenas served on their employees. In re Deposition of Turvey, 3d Dist. No. 15-02-07, 2002-Ohio-6008 (hospital filed motion to quash subpoena served on its medical staff coordinator);
{¶25} Hoerig‘s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE ACTION OF THE TRIAL COURT IN GRANTING DEFENDANT‘S MOTION TO QUASH THE SUBPOENA SERVED UPON TIMOTHY FELTER CONSTITUTES PREJUDICIAL AND REVERSIBLE ERROR.
{¶26} In his second assignment of error, Hoerig argues the trial court‘s action in granting Scenic‘s motion to quash the subpoena on Felter is prejudicial and reversible error because Hoerig could not meet his burden of proof without Felter‘s testimony. Hoerig alleges Felter would have provided testimony
{¶27} According to
{¶28} Hoerig correctly argues the trial court erred in granting Scenic‘s motion to quash the subpoena on Felter without including an affidavit of efforts made to resolve the undue burden or giving Hoerig an opportunity to respond.
{¶29} The trial court also erred in granting Scenic‘s motion to quash the subpoena on Felter without giving Hoerig an opportunity to respond to Scenic‘s motion. Scenic filed its motion to quash on May 5, 2011. The trial court granted the motion on May 6, 2011. The immediate ruling on the motion did not provide Hoerig with an opportunity to respond and demonstrate he had a substantial need for the testimony that could not be met without undue hardship as required under
{¶30} However, we cannot find that the trial court‘s errors were prejudicial and reversible errors. A trial court has considerable discretion in discovery matters, as well as the admission or exclusion of evidence. Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 668, 591 N.E.2d 752, citing State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 63, 295 N.E.2d 659. An ex parte ruling on a motion to quash a subpoena can be considered harmless error where the subpoena is unduly burdensome. Eitel v. Eitel (Aug. 23, 1996), 4th Dist. No. 95CA11, at *5 (court affirming the trial court‘s ex parte quashing of subpoenas, “finding they were unreasonable, oppressive, and unduly burdensome and would not lead to relevant testimony.“)
{¶31} In the present case, we cannot find Hoerig would have been successful in opposing the motion to quash by demonstrating a substantial need for the testimony that could not otherwise be met without undue hardship, as required under
{¶32} Even if Hoerig had a substantial need for this testimony, the facts could have been otherwise presented without undue hardship. Hoerig‘s witness list included Terry Irwin (hereinafter “Irwin“), who was working with Hoerig on the day of his alleged injury. (Doc. No. 23). Hoerig could have called Irwin, had he been properly served, to testify that he hurt his shoulder. (Doc. No. 16). Like
{¶33} Furthermore, Scenic provided substantial evidence in opposition to Hoerig‘s claim. Scenic offered testimony from Randy Groves and Scott Swander, with whom Hoerig had also worked in the days following his alleged injury. (May 17, 2011 Tr. at 252-59). Both men testified that Hoerig did not mention his
{¶34} Hoerig‘s second assignment of error is, therefore, overruled.
{¶35} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J., concurs.
SHAW, J., concurs in Judgment Only.
/jlr