[Cite as In re Subpoena for Windland, 190 Ohio App.3d 109, 2010-Ohio-4577.]




                             IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      WASHINGTON COUNTY




IN RE SUBPOENA FOR                          :


WINDLAND.                                   :
                                                         CASE NO. 10CA2
                                            :


                                            :            DECISION AND JUDGMENT ENTRY




_________________________________________________________________


                                           APPEARANCES:


COUNSEL FOR APPELLANT:                  Charles C. Postlewaite


COUNSEL FOR APPELLEES:                  John E. Triplett and Daniel P. Corcoran,
                                        Theisen Brock, L.P.A.
_________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 9-20-10


        ABELE, Judge.
WASHINGTON, 10CA2                                                                           2


       {¶ 1} This is an appeal from a Washington County Common Pleas Court judgment


that denied a motion to quash a subpoena filed by Geraldine Windland, respondent below and


appellant herein. Appellant assigns the following errors for review:


       FIRST ASSIGNMENT OF ERROR:


       The court erred to the prejudice of respondent-appellant by stating that the terms
       of the parties’ comprehensive agreement of protection, and the agreed judgment
       entry/decree of divorce, and the memorandum of settlement agreement, mutual
       release of claims and covenants not to sue and the letter of memorandum, do
       not prevent petitioner-appellee from deposing respondent-appellant.
       (Emphasis sic.)


              SECOND ASSIGNMENT OF ERROR:


       The court erred to the prejudice of respondent-appellant Geraldine Windland
       by ruling that enforcing the parties’ comprehensive agreement of protection, and
       the agreed judgment entry/decree of divorce, and the memorandum of
       settlement agreement, mutual release of claims and covenants not to sue and
       the letter of memorandum was against public policy. (Emphasis sic.)


       {¶ 2} Appellant and Greg Windland, petitioner below and appellee herein, married in


1992. On July 6, 2005, the Washington County Court of Common Pleas granted the couple


a divorce. As part of the divorce, the parties entered into a “Memorandum of Settlement
WASHINGTON, 10CA2                                                                                3


Agreement, Mutual Release of Claims and Covenants not to Sue” that provided:


       James Gregory Windland * * * release[s], acquit[s] and forever discharge[s]
       Geraldine Windland * * * from any and all actions, causes of actions, claims,
       demands, judgments, damages, costs and expenses * * * with respect to any
       and all claims that were raised, that could have been raised or that pertain with
       or relate in any way to the matters raised or that could have been raised, in
       the Case.


Appellee agreed to never “institute, encourage, suggest or in any way instigate the institution


or maintenance of any suit or action in law or in equity, directly or indirectly” against her.


A contemporaneous “Letter of Memorandum” also promised that appellee would not “annoy,


harass, bother, threaten or otherwise interfere” with appellant.


       {¶ 3} In 2006, appellee and his company, Tri-State Concrete Pumping, Inc.


(“Tri-State”), filed suit against the state of West Virginia. Ancillary to that lawsuit, they filed


a petition in the trial court and requested an order to issue a subpoena to appellant to give


testimony at a deposition. The trial court granted the petition, but later stayed that order after


appellant filed motions for a protective order and to quash the subpoena. At the hearing the


following month, counsel explained that appellant’s testimony is necessary to preserve the
WASHINGTON, 10CA2                                                                               4


action. It appears that during the divorce, appellee made several telephone calls to a person


incarcerated in a West Virginia jail on a parole violation.1 Those calls were recorded and


somehow released in violation of West Virginia law. Appellee is pursuing a claim for damages


against the state as a result of that release. Appellant is not a part of that lawsuit, although


there is some indication that she may have been involved in the matter and contacted the jail.




       {¶ 4} On December 31, 2009, the trial court denied appellant's motion to quash and


refused to issue a protective order. Reasoning that the language in the divorce documents


did not speak to this kind of situation and noting the court’s concern that parties should not


be able to contract away their legal duty to give testimony in court, the trial court ordered


appellant to honor the subpoena, but also directed appellee not to be present during the


deposition. This appeal followed.2




       1
           That person is apparently now appellee’s wife.

       2
           We acknowledge that these types of discovery orders are generally interlocutory and,
thus, neither final nor appealable. See Peppeard v. Summit Cty., Summit App. No. 25057,
WASHINGTON, 10CA2                                                                               5


                                               I


       {¶ 5} Appellant asserts in her first assignment of error that the trial court erred by


not finding that the documents she and appellee executed at the time of their divorce shielded


her from giving deposition testimony in his civil case against the state of West Virginia.


       {¶ 6} Our analysis begins with a recitation of the applicable standard of review.


Appellate courts review trial court decisions on motions to quash subpoenas for abuse of


discretion. State v. Strickland, 183 Ohio App.3d 602, 918 N.E.2d 170, 2009-Ohio-3906, at


¶ 37; State v. Adams, Scioto App. Nos. 04CA2959 and 05CA2986, 2009-Ohio-6491, at


¶ 27; Chiasson v. Doppco Dev., L.L.C., Cuyahoga App. No. 93112, 2009-Ohio-5013, at ¶


10. The same standard also applies to the review of a trial court decision on a motion for


a protective order. See State v. Lorraine, Trumbull App. No. 2006-T-0100,




2010-Ohio-2862, at ¶ 8-13; River Oaks v. Krann, Lake App. No. 2008-L-166,
2009-Ohio-5208, at ¶ 33. The case sub judice is different, however. This case was
initiated solely to obtain a subpoena, and its issuance was affirmed when the trial court denied
the motion to quash and the motion for a protective order. The judgment appealed herein thus
determined the action, and there are no further proceedings to be had.
WASHINGTON, 10CA2                                                                                6


2007-Ohio-6724, at ¶ 13; Wells v. Dayton Walther Corp., (Aug. 6, 1996), Scioto App. No.


94CA2315. Accordingly, we will not reverse the trial court's decision in the case sub judice


absent an abuse of discretion.


       {¶ 7} Generally, an abuse of discretion is more than an error of law or judgment;


rather, it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable.


 See, e.g., Landis v. Grange Mut. Ins. Co. (1998), 82 Ohio St.3d 339, 342, 695 N.E.2d


1140; Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio St.3d 440, 448, 659 N.E.2d


1242. In applying this standard, appellate courts may not simply substitute their own judgment


for that of the trial court. State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio


St.3d 728, 732, 654 N.E.2d 1254; In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-138,


566 N.E.2d 1181. Rather, to establish an abuse of discretion, it must be demonstrated that


the result is so palpably and grossly violative of fact or logic that it evidences not the exercise


of will but the perversity of will, not the exercise of judgment but defiance of judgment, and


not the exercise of reason but, instead, passion or bias. See Nakoff v. Fairview Gen. Hosp.


(1996), 75 Ohio St.3d 254, 256, 662 N.E.2d 1; Bragg v. Hatfield, Vinton App. No. 02CA567,
WASHINGTON, 10CA2                                                                                7


2003-Ohio-1441, at ¶ 24.


       {¶ 8} In this case, we first agree with the trial court that nothing in the documents


executed at the time of divorce explicitly covers this situation. We find nothing in any of the


documents that expressly states that appellant may never be subpoenaed for a deposition.


Appellant argues that such exemption is “include[d] by reference,” but does not specifically


reference language in the documents that speaks to the term “deposition.” The “Memorandum


of Settlement Agreement, Mutual Release of Claims and Covenants Not to Sue” releases


appellant from any and all “actions, causes of action, claims, demands, judgments.” We agree


with the trial court that appellee’s request to depose appellant does not violate this prohibition.


 It would be a very different situation if appellant were named as a party to the West Virginia


lawsuit, because the documents clearly released any legal claims against her, but appellee


is not pressing any legal claim against her. Rather, appellee wants to depose appellant for


information in an action against another party.


       {¶ 9} Likewise, the “Letter of Memorandum,” states that appellee will not “annoy,


harass, bother, threaten or otherwise interfere” with appellant. Again, we fail to see how
WASHINGTON, 10CA2                                                                              8


appellee would violate this provision by taking appellant's deposition. It is also important to


note that the trial court also ordered appellee to not attend the deposition. We are confident


that appellee’s counsel, himself an officer of the court, will keep the proceeding above-board.


 If not, appellant can seek further redress and remedy at that time from the trial court.


       {¶ 10} In addition, even assuming arguendo that the trial court too narrowly construed


these documents, we point out that an abuse of discretion is more than a mistake of fact or


law. Even if the documents could conceivably be construed so as to protect appellant from


having to give deposition testimony, we are not persuaded that the trial court’s application


of the terms of those documents rises to the level of being arbitrary, unreasonable, or


unconscionable and, thus, amounts to reversible error.3


       {¶ 11} For all of these reasons, we hereby overrule appellant's first assignment of error.




       3
        We wish to emphasize that our opinion should not be construed as criticism for the
drafter's choice of language in the pertinent documents. One could hardly conceive that
situations could arise that extend beyond the reach of the terms included in these documents.
 Furthermore, as we note in footnote 4 infra, ample authority exists in Ohio law to support
the trial court's view concerning the public-policy issue.
WASHINGTON, 10CA2                                                                              9


                                               II


       {¶ 12} In her second assignment of error, appellant takes issue with the trial court’s


pronouncement that public policy will be violated by allowing private agreements to preclude


litigants from providing testimony for use in a court of law. However, in view of our ruling in


appellant's first assignment of error that the court correctly found that the divorce documents


do not cover this situation, this assignment of error is rendered moot and may be disregarded.


 See App.R. 12(A)(1)(c).4


       {¶ 13} Having reviewed all errors assigned and argued, and finding merit in none, we


hereby affirm the trial court's judgment.


                                                                            Judgment affirmed.



       4
           Although we need not, and do not, address this assignment of error on its merits,
we note that ample legal authority exists to support the trial court’s reasoning regarding the
public-policy issue. See Sullivan v. Wilkoff (1939), 63 Ohio App. 269, 273, 26 N.E.2d 460;
see also In re Lutz (ID.1980), 607 P.2d 1078, 1081-1082. Here, as we have noted in the
past, appellate courts generally exercise caution in determining public policy for the state. See
State v. Haines, Highland App. No. 01CA16, 2002-Ohio-4255, at ¶ 13. Consequently,
because the trial court’s judgment can be upheld solely on the text of the divorce documents,
we decline to go into the public-policy issue at this juncture.
WASHINGTON, 10CA2                             10


     MCFARLAND, P.J., and KLINE, J. concur.
