[Cite as Hoerig v. Tiffin Scenic Studios, Inc., 2011-Ohio-6103.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




KEVIN J. HOERIG,

        PLAINTIFF-APPELLANT,                                       CASE NO. 13-11-18

        v.

TIFFIN SCENIC STUDIOS, INC., ET AL.,                               OPINION

        DEFENDANTS-APPELLEES.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 10-CV-0248

                                       Judgment Affirmed

                          Date of Decision: November 28, 2011




APPEARANCES:

        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
Case No. 13-11-18



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

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rotator cuff strain.” (Id.). Scenic appealed the District Hearing Officer’s decision.

(Doc. No. 8).

         {¶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 R.C. 4123.512. (Doc. No. 2). The Seneca

County Court of Common Pleas assigned the matter case number 10 CV 0607.

(Id.).

         {¶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).



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         {¶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 R.C. 4123.512. (Doc. No. 2). The Seneca County Court of Common Pleas

assigned the matter case number 10 CV 0248. (Id.).

         {¶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



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Officer’s order. (Id.). Scenic filed a second appeal of the order with the ICO on

October 6, 2010. (Doc. No. 8). The ICO refused the appeal. (Id.).

       {¶14} On November 4, 2010, Scenic filed an appeal of the order with the

Seneca County Court of Common Pleas pursuant to R.C. 4123.512. (Doc. No. 2).

The Seneca County Court of Common Pleas assigned the matter case number 10

CV 0562. (Id.). The trial court consolidated the three cases under case number 10

CV 0248 on January 26, 2011. (Doc. No. 17).

       {¶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



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County Court of Common Pleas entered judgment in favor of Scenic. (Doc. No.

69).

       {¶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.” Civ.R. 45(C)(3).    Hoerig argues Civ.R. 45 requires the subpoenaed

person, in this case Felter, to show the undue burden. Hoerig claims Scenic did

not have standing to quash the subpoena of Felter because Scenic was not the

subpoenaed person.

       {¶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

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discretion connotes more than an error of judgment; rather, it implies that the trial

court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

        {¶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.    Civ.R. 45 provides specific instances when a party suffers an injury

sufficient for standing to file a motion to quash a subpoena. These instances

include when the subpoena does not provide a reasonable time period for the party

to comply, when the subpoena requires the party to disclose privileged

information, when the subpoena requires the party to disclose work product, or

when the subpoena “subjects a person to an undue burden.” Civ.R. 45(3)(a)-(d).

        {¶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 Civ.R. 45, “a person” may make a

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motion to quash a subpoena when that person suffers an undue burden. The rule

does not state the person suffering the undue burden must be the subpoenaed

person as Hoerig argues. See id. Consequently, Scenic had standing to make a

motion to quash the subpoena on Felter if the subpoena subjected Scenic to an

undue burden.

      {¶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 Civ.R. 45 and that six thousand

dollars was an undue burden.

      {¶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);

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Chiasson v. Doppco Dev., 8th Dist. No. 93112, 2009-Ohio-5013 (employer filed

motion to quash subpoena served on its outside IT administrator). This Court has

stated that an employer has standing to maintain a motion to quash a subpoena

served on an employee where the information sought was obtained while the

employee was “acting within the course and scope of her employment.” Turvey at

¶13. Allegedly, Felter’s testimony would have informed the jury of Hoerig’s

conduct while he was working with Felter on the days following his injury. Thus,

the information Hoerig sought to elicit from Felter was obtained while Felter was

acting within the course and scope of his employment with Scenic. Therefore, we

cannot find that the trial court abused its discretion in finding Scenic had standing

to file a motion to quash the subpoena served on Felter.

       {¶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


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corroborating Hoerig’s claim that he was injured while working for Scenic.

Hoerig argues his burden of proof was essentially insurmountable without Felter’s

testimony supporting Hoerig’s claim.

      {¶27} According to Civ.R. 45, a motion filed to quash a subpoena due to an

undue burden “shall be supported by an affidavit of the subpoenaed person or a

certificate of that person’s attorney of the efforts made to resolve any claim of

undue burden.” Additionally, the rule states that “the court shall quash or modify

the subpoena unless the party in whose behalf the subpoena is issued shows a

substantial need for the testimony or material that cannot be otherwise met without

undue hardship.” Civ.R. 45. The rule further provides that the party will be

“reasonably compensated” for the undue burden. Civ.R. 45.

      {¶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.

Civ.R. 45 requires that the attorney opposing the subpoena attempt to resolve any

claim of undue burden and provide the court with an affidavit or certificate of the

efforts made to resolve the issue. Future Communications, Inc., v. Hightower, 10th

Dist. No. 01AP-1175, 2002-Ohio-2245, ¶17. Scenic failed to make any effort to

resolve the undue burden with Hoerig, arguing such actions would have been



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“futile.” Consequently, Scenic failed to include the required affidavit or certificate

because Scenic had not made the required attempt.

       {¶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

Civ.R. 45.

       {¶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.”)



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      {¶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 Civ.R. 45. See, also, Bonewitz at *1. Scenic demonstrated it would suffer an

undue burden of six thousand dollars as a result of the subpoena on Felter. Civ.R.

45 states that when the subpoena subjects a person to an undue burden, the court

“shall” grant the motion, unless the party issuing the subpoena demonstrates a

substantial need and undue hardship. Future Communications at ¶18. See, also,

Eitel, at *5. Hoerig argues he had a substantial need for the testimony because

Felter would have corroborated his claim.      Hoerig alleges Felter would have

testified that he had complained his shoulder hurt while working with Felter in the

days following the alleged injury, and that this testimony was essential for Hoerig

to meet his burden of proof. However, Scenic accurately points out that Felter’s

alleged testimony is speculative because Hoerig never deposed Felter and relies

solely on an unsworn written statement.

      {¶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

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Felter, Irwin had given an unsworn written statement consistent with Hoerig’s

claim. (Id.). In addition to Irwin, Hoerig could have called his mother, Margaret

Hoering-Jennings. (Doc. No. 23). According to the trial court’s record, Hoerig’s

mother could have testified that Hoerig did not injure his shoulder while working

in her house as Scenic alleged, but that Hoerig had previously injured his shoulder

while working for Scenic. (Doc. No. 16). Hoerig did not call either of these

witnesses at trial, instead relying on the testimony of Hoerig and his fiancé, who

would benefit from Hoerig’s compensation for his injury. (May 16, 2011 Tr. at 48-

158).   Hoerig provides little explanation for why he chose not to call these

witnesses and fails to explain how calling these witnesses instead of Felter would

have caused him undue hardship. Thus, Felter was one part of the cumulative

evidence Hoerig could have presented. Hoerig failed to present all of the potential

evidence at his disposal to meet his burden of proof. Hoerig also failed to request

to continue the trial until a time when Felter and/or Irwin would be available.

Consequently, this Court cannot find that the trial court’s decision to grant the

motion to quash the subpoena on Felter was prejudicial and reversible error.

        {¶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

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allegedly injured shoulder, and Hoerig was observed raising his allegedly hurt arm

to cut a hole in the ceiling. (Id.). During his testimony, Hoerig admitted doing

work in his mother’s home after he allegedly injured his shoulder. (May 16, 2011

Tr. at 90-94). This work included installing a countertop, sink, mirror, light,

backsplash, and tile. (Id. at 134-43). Scenic also offered testimony that Scenic

terminated Hoerig’s employment after Scenic discovered Hoerig was collecting

unemployment compensation while working for them. (May 17,2011 Tr. at 197).

Finally, Scenic provided evidence that Hoerig only reported his alleged injury

after Scenic terminated his employment. (Id. at 189-92). In light of the alternative

available evidence, the trial court’s broad discretion, and the substantial evidence

contrary to Hoerig’s claim, we cannot find that the trial court’s granting of

Scenic’s motion to quash the subpoena on Felter was prejudicial and reversible

error.

         {¶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

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