RICHARD S. KAPLAN v. LAURA A. TUENNERMAN-KAPLAN and HENRY W. TUENNERMAN
C.A. No. 11CA0011
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
January 30, 2012
2012-Ohio-303
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. MISC-11-013
Dated: January 30, 2012
WHITMORE, Presiding Judge.
{1} Plaintiff-Appellant, Richard Kaplan (“Husband“), appeals from the order of the Wayne County Court of Common Pleas, granting Third Party-Appellee, Henry Tuennerman‘s, motion to quash a subpoena duces tecum. This Court affirms.
I
{2} Husband brought a divorce action against Defendant-Appellee, Laura Tuennerman-Kaplan (“Wife“), in Pennsylvania. During the pendency of the divorce action, Husband sought to obtain information about Wife‘s financial interest in her father, Tuennerman‘s, company, TLJ Limited. Husband did not receive all of the information he requested from Tuennerman, who resided in Wayne County and was not a party to the
{3} Tuennerman filed objections to the subpoena and, on February 24, 2011, filed a motion to quash. Husband filed a memorandum in opposition to the motion to quash the same day. On February 28, 2011, the trial court granted the motion to quash the subpoena.
{4} Husband now appeals from the trial court‘s order1 and raises four assignments of error for our review. For ease of analysis, we consolidate several of the assignments of error.
II
Assignment of Error Number One
“THE TRIAL COURT ERRED AS A MATTER OF LAW BY QUASHING THE SUBPOENA DUCES TECUM BECAUSE UNDER
Assignment of Error Number Two
“THE TRIAL COURT ERRED BY ITS ORDER TO QUASH THE SUBPOENA UNDER THE DOCTRINE OF COMITY.”
{5} In his first two assignments of error, Kaplan argues that the trial court erred by quashing the subpoena at issue. Specifically, he argues that the court lacked authority to countermand the order of the Pennsylvania Court of Common Pleas and violated the doctrine of comity by doing so. We disagree.
R.C. 2319.09 , which acknowledges the Uniform Foreign Depositions Act, permits Ohio courts to compel witnesses under a discovery order from a foreign jurisdiction to appear and testify in the same manner and by the same process and proceedings as are employed for the purpose of taking testimony in Ohio courts. The role of courts outside the forum state includes the authority to examine the facts underlying a subpoena and to quash when necessary. The receiving state is required to exercise its discretion in reviewing the subpoena and may not simply rubber stamp the decision of the foreign court. (Internal citations and quotations omitted.) Lampe at *3.
We went on to review the trial court‘s decision in that instance for an abuse of discretion. Id.
{7} Kaplan acknowledges Lampe, but asks this Court to adopt the Eighth District‘s position in Fischer Brewing Co. v. Flax, 138 Ohio App. 3d 92 (8th Dist.2000). There, the Eighth District rejected this Court‘s analysis in Lampe and determined that a trial court does not have the authority to quash a foreign subpoena. Fischer Brewing Co., 138 Ohio App. 3d at 96-97. But see Conforte v. LaSalla, 8th Dist. No. 79358, 2001 WL 1398406, *3 (citing Lampe favorably with regard to is finality analysis). Fischer Brewing Co. is distinguishable, however, on the basis that it involved an Ohio trial court ruling on a motion to quash subpoenas issued in a foreign court. Fischer Brewing Co., 138 Ohio App. 3d at 94-95. The subpoena here was issued by and quashed by the Wayne County Court of Common Pleas. Furthermore, Kaplan has not offered any argument as to why this Court should abandon its own precedent. See
{8} As to the doctrine of comity, Kaplan argues that a trial court errs when it does not “give effect to the laws and judicial decisions” of another court. Bobala v. Bobala, 68 Ohio App. 63, 71 (7th Dist.1940). Yet, the trial court here did not disregard any law or judicial decision of
Assignment of Error Number Three
“UNDER THE OHIO RULES OF CIVIL PROCEDURE, THE TRIAL COURT ERRED BY QUASHING THE SUBPOENA DUCES TECUM AND DENYING DISCOVERY OF THE FOREIGN ORDER FOR SUCH.”
Assignment of Error Number Four
“THE TRIAL COURT ERRED BY GRANTING MOTION TO QUASH SUBPOENA BECAUSE APPELLEE FAILED TO ESTABLISH AN UNDUE BURDEN REGARDING HIS DEPOSITION AND DOCUMENT REQUESTS.”
{9} In his third and fourth assignments of error, Kaplan argues that the trial court abused its discretion by granting Tuennerman‘s motion to quash. Specifically, he argues that Tuennerman possesses evidence that is relevant and material to Kaplan‘s divorce action and failed to show that his compliance with the subpoena would pose an undue burden.
{10} “[C]ourts have broad discretion over discovery matters.” State ex rel. Citizens for Open, Responsive & Accountable Gov‘t v. Register, 116 Ohio St. 3d 88, 2007-Ohio-5542, ¶ 18. As such, this Court generally applies an abuse of discretion standard of review in appeals from discovery rulings, including a ruling on a motion to quash a subpoena. State v. Stephens, 9th Dist. No. 23845, 2008-Ohio-890, ¶ 8. But see Price v. Karatjas, 9th Dist. No. 25361, 2011-Ohio-1048, ¶ 8 (applying a de novo standard where the issue was one of privilege from disclosure). An abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{11}
{12} Kaplan sought materials from Tuennerman to establish Wife‘s interest in TLJ, Limited for purposes of their divorce proceeding. Tuennerman opposed Kaplan‘s subpoena on the basis that it subjected him to an undue burden. Although Tuennerman produced “limited documents” related to Wife‘s interest in the company, he refused to produce a number of other items, including asset statements, balance sheets, ten years’ worth of tax returns, any and all documents related to any parcel owned by TLJ, Limited, and any and all partnership documents. Tuennerman asserted that the requested items related to his own financial interests, not Wife‘s, and were irrelevant to the divorce proceedings. Tuennerman further indicated that Wife‘s interest in TLJ, Limited was de minimis, he had fully disclosed her interest, and Kaplan was already well aware of Wife‘s “token interest” as Kaplan received financial information from
{13} Kaplan‘s memorandum in opposition was largely unresponsive to Tuennerman‘s motion to quash. Kaplan did not defend against Tuennerman‘s assertions that Wife only possessed a “token interest” in TLJ, Limited and Kaplan already had knowledge of her interest. Kaplan‘s memorandum merely asserted that, because the Pennsylvania Courts agreed that the discovery Kaplan sought was relevant and material, the trial court should agree. He did not offer any argument as to why the undue burden Tuennerman alleged was insufficient. He also did not go on to address his own substantial need for all of the items listed in the subpoena. See
{14} The only item that Kaplan attached to his memorandum was Tuennerman‘s objections to the subpoena for the production of certain documents. After the trial court granted the motion to quash, Kaplan filed a “motion for reconsideration and/or to vacate and set aside judgment” to which he attached many other items, including filings from the Fayette County divorce action. The trial court, however, did not have any of those items in ruling on the motion to quash, as Kaplan did not file them until after the court granted the motion.
{15} On appeal, Kaplan generally asserts that the discovery he sought was relevant and the trial court abused its discretion by quashing the subpoena. Given the evidence and argument Kaplan put before the trial court, however, we cannot conclude that the court abused its discretion here. Tuennerman was not a party to the divorce action, complied with Kaplan‘s
III
{16} Kaplan‘s assignments of error are overruled. The judgment of the Wayne County Court of Common Pleas is affirmed.
Judgment affirmed.
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 Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
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.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
DICKINSON, J.
CONCUR
APPEARANCES:
CHARLES A. KENNEDY, Attorney at Law, for Appellant.
PETER A. PATTERSON, Attorney at Law, for Defendant.
MICHAEL W. KIRK, Attorney at Law, for Third Party-Appellee.