The opinion
[Cite as Morgan v. Greater Cleveland Regional Transit Auth., 2025-Ohio-1655.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
LAVERNE MORGAN, :
Plaintiff-Appellee, :
Nos. 113875 and 113973
v. :
GREATER CLEVELAND REGIONAL :
TRANSIT AUTHORITY, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: May 8, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-22-968827
Appearances:
James E. Boulas Co., L.P.A., Panagiota D. Boulas, and
James E. Boulas, for appellee.
Janet E. Burney, General Counsel — Deputy General
Manager for Legal Affairs, Keith A. Ganther, Sr. Counsel –
Litigation, and Brian R. Gutkowski, Associate Counsel II;
Roetzel & Andress, LPA, Stephen W. Funk, and Emily K.
Anglewicz, for appellant Greater Cleveland Regional
Transit Authority.
Roetzel & Andress, LPA, Stephen W. Funk, and Emily K.
Anglewicz, for appellant Brian R. Gutkowski
MICHELLE J. SHEEHAN, J.:
Oscar Wilde said, “The study of law is sublime, and its practice vulgar.”
That has never been more evident than in this case. Litigation and the practice of
law are difficult enough without constant disagreement and lack of civility among
counsel. This case is an example of repeated discovery disputes, lack of professional
courtesy, and disrespectful conduct toward counsel and the judiciary that ultimately
led to a hearing on contempt and sanctions.
Defendant-appellant, Greater Cleveland Regional Transit Authority
(“RTA”), separately appealed two interlocutory judgments from the trial court:
(1) the trial court’s denial of RTA’s summary judgment motion based on political-
subdivision immunity, and (2) the trial court’s judgment finding RTA and its counsel
in contempt of court and ordering them to pay sanctions.1 This court consolidated
the appeals for purposes of briefing, hearing, and disposition. RTA raises three
assignments of error for our review:
1. The trial court erred as a matter of law by denying appellant [RTA’s]
motion for summary judgment because appellant is immune from
liability pursuant to R.C. Chapter 2744.
2. The trial court committed reversible error by finding appellants
[RTA] and its counsel . . . in contempt.
1 Both interlocutory judgments are final appealable orders. See Denovchek v. Bd. of
Trumbull Cty. Commrs., 36 Ohio St.3d 14, 15 (1988) (“R.C. 2705.09 gives a right to appeal
to a person found to be in contempt of court.”); Hubbell v. Xenia, 2007-Ohio-4839,
syllabus (An order that denies the benefit of alleged political-subdivision immunity is a
final appealable order.).
3. The trial court committed reversible error by imposing $13,870.00
in attorney fees as a contempt sanction against appellants without an
evidentiary hearing.
After a thorough review of the facts and relevant law, we affirm the trial
court’s judgment in part, reverse it in part, and remand the case to the trial court for
further proceedings consistent with this opinion. We affirm the trial court’s
judgment denying RTA’s motion for summary judgment with respect to R.C.
2744.02(B)(1) and (2). We agree with the trial court that questions of fact remain
regarding whether RTA’s employee negligently operated the bus and whether that
negligence proximately caused plaintiff-appellee Laverne Morgan’s injuries. We
therefore overrule RTA’s first assignment of error.
However, we are constrained to reverse the trial court’s judgment
finding RTA and its counsel in contempt of court for failing to complete discovery
by January 8, 2024. To be clear, we do not condone the conduct of counsel in this
case. Gamesmanship and unprofessionalism pervade the record regarding how
counsel treated each other and the trial court, especially RTA’s counsel’s refusal to
allow RTA employee depositions to take place at Morgan’s counsel’s office. But as
discussed below, the trial court’s contempt power for a nonparty witness’s failure to
appear for deposition extends only to the subpoenaed RTA employees and not to
RTA. The trial court cannot force a party to produce nonparty witnesses, even if the
nonparty witnesses are the corporate defendant’s own employees. We therefore
sustain RTA’s second assignment of error. However, we find that the RTA
employees were properly subpoenaed by Morgan but failed to appear for deposition,
and we remand this matter for the trial court to proceed within its discretion
regarding the discovery matters in this case.
I. Procedural History and Factual Background
In September 2020, Morgan and her husband were passengers on an
RTA bus. Stephen Walker, an employee of RTA, was the bus driver at the time. As
Morgan exited the bus, she grabbed a bar on the bus door with her left hand. Morgan
was still holding onto the grab bar on the bus door when Walker shut the bus doors
on her left wrist. Bus drivers control the doors by using a switch that opens and
closes them. The bus driver immediately opened the doors, and Morgan walked
away. Approximately four minutes later, Morgan’s husband walked back to the bus
to obtain information about the bus and its driver.
Morgan went to the hospital the following day, complaining of wrist
pain. Although her wrist was not broken, she was given a splint or wrap to
immobilize it. Five days after the incident, she saw an orthopedic hand specialist
who gave her hand exercises to do at home and referred her to an occupational
therapist. Morgan went to the occupational therapist on October 26, 2020, and was
given a home-exercise program. Morgan claims that despite the follow-up care, she
continues to have pain and other issues with her wrist from the incident. She further
contends that her wrist injuries from the bus incident are permanent.
Morgan filed a complaint against RTA and Walker in September 2022,
alleging negligence against Walker and respondeat superior against RTA.
RTA moved to dismiss, arguing that Morgan’s complaint failed to state
a claim against RTA and Walker. The trial court denied the motion with respect to
RTA but granted it with respect to Walker, finding that Morgan did not allege any
facts that Walker acted maliciously, in bad faith, or in a wanton or reckless manner.
RTA subsequently answered Morgan’s complaint, denying her allegations and
setting forth several affirmative defenses, including that it was immune from
liability pursuant to R.C. Ch. 2744.
Discovery commenced, and disputes arose almost immediately. We
will discuss only the disputes that are relevant to this appeal. In February 2023,
RTA identified three of its employees as “individuals with discoverable information”
in the case, including Walker; Donna Bernard, a claims adjuster at RTA; and Charles
Brown, RTA’s security manager. RTA gave the same address for each of the three
witnesses: 1240 West 6th Street, 6th Floor, Cleveland, Ohio, which is the address of
RTA’s headquarters in downtown Cleveland.
Morgan subpoenaed these witnesses in March 2023 and commanded
them to appear for depositions on April 25, 2023, at Morgan’s counsel’s office in
Broadview Heights. Morgan also commanded Walker to bring “[a] complete copy
of his RTA driver qualification file” and Bernard to bring “[a] complete copy of
[Walker’s] driver qualification file and the Vehicle Accident Investigation file or its
equivalent relating to RTA bus #26 on September 20, 2020.” Morgan served the
subpoenas to each witness via certified mail to the addresses provided by RTA for
the witnesses in its initial disclosures. A legal secretary signed for the subpoenas on
March 16, 2023. Morgan filed a return of service for each of the subpoenas with the
clerk of courts.
On April 19, 2023, RTA’s counsel sent an email to Morgan’s counsel
stating that two of the witnesses objected to the subpoenas because they sought
documents that were (1) not in the witnesses’ possession, (2) protected by work-
product privilege, and (3) “unduly burdensome” and “not proportionate to the needs
of this case.” A notice of appearance of counsel was never filed on behalf of the
witnesses nor was a motion for protective order or motion to quash the subpoenas.
Neither RTA’s counsel nor the witnesses appeared for the depositions.
RTA moved for summary judgment in late October 2023.
Morgan’s counsel subpoenaed Walker again on October 10, 2023, and
commanded him to appear for deposition in Broadview Heights on October 16,
2023. Morgan’s counsel ordered Walker to bring with him to the deposition a
“complete copy” of his “RTA driver qualification file.”
On October 12, 2023, RTA’s counsel moved to quash the subpoena to
nonparty witness, Stephen Walker. The sole reason in support of the motion to
quash was RTA’s claim that Morgan had “frustrate[d] the discovery efforts.” RTA’s
counsel stated that it would produce Walker “either at the Main Office, downtown
or via Zoom” for the October 16, 2023 deposition, “if and only if [Morgan] provides
[RTA] with three (3) things requested in discovery”: (1) Morgan’s husband’s current
address, (2) Morgan’s in-home health aide’s current address and phone number,
and (3) the video recording of RTA’s medical expert’s independent medical exam of
Morgan. RTA further argued that Morgan failed to file a return of service for Walker,
and that the subpoena was unduly burdensome. Neither Walker nor RTA’s counsel
appeared for the October 16th deposition. The trial court later denied RTA’s motion
to quash.
Morgan’s counsel filed a motion to compel in early November 2023
and requested sanctions. Regarding the March 2023 subpoenas, Morgan’s counsel
argued that “none of the subpoenaed parties served objections pursuant to Civ.R.
45(C)(2)(b) and that RTA never filed a motion to quash these subpoenas, nor did it
provide a legal justification for failing to comply with them.” Morgan’s counsel
stated that after RTA’s counsel and the witnesses failed to appear for deposition, he
attempted to resolve it amicably — to no avail.
Morgan’s counsel further explained in his motion to compel:
On October 6, 2023, the Court held a telephonic final pretrial which
counsel for both parties attended. At the pretrial, the parties agreed
that Defendant would take Ms. Morgan’s deposition at Defense
Counsel’s office on October 9, 2023 and Defense Counsel represented
to the Court that he would produce Stephen Walker for deposition on
October 16, 2023 at Plaintiff’s Counsel’s office. Ms. Morgan complied
with the agreement and appeared for her deposition at Defense
Counsel’s office on October 9, 2023. Ms. Morgan also issued a second
subpoena for Stephen Walker to appear for deposition on October 16,
2023. Despite Defense Counsel’s representations to Ms. Morgan’s
counsel, and the Court, during the pretrial conference neither he nor
Stephen Walker appeared for the deposition. Rather, Defense Counsel
again moved the goal posts and demanded more concessions from Ms.
Morgan while holding hostage Ms. Morgan’s ability to depose RTA’s
witnesses.
On December 1, 2023, the trial court granted Morgan’s motion to
compel but held its ruling on sanctions in abeyance. The trial court ordered that all
outstanding depositions be concluded by January 8, 2024. That same day, Morgan’s
trial counsel emailed RTA’s counsel three separate notices to take the depositions of
the three witnesses at Morgan’s counsel’s office in Broadview Heights on
December 8, 2023.
RTA’s attorney responded via fax on December 7, 2023, stating that
he would be in another deposition on December 8 and was, therefore, unavailable
that day. RTA’s counsel also asserted that according to Cuyahoga C.P., Gen.Div.,
Loc.R. 13, Morgan’s counsel was supposed to confer with opposing counsel before
choosing a deposition date. RTA’s counsel further argued that it was “unduly
burdensome to expect three [RTA] employees to traverse to the nether-reaches of
the County when some of them rely upon public transit to get to work . . . .” RTA’s
counsel told Morgan’s counsel to contact him before Friday, December 15, 2023, “to
pick a mutually agreeable date(s) for any remaining depositions” that he wished to
conduct.
The three witnesses failed to appear for the depositions on
December 8, 2023. Morgan moved for an order to show cause and for sanctions that
same day. The trial court denied the motion but ordered all depositions to be
completed by January 8, 2024. The trial court also stated that it agreed with
Morgan’s argument that the delay in deposing the witnesses imposed an undue
burden upon her in replying to RTA’s summary judgment motion and extended
Morgan’s time to respond to January 10, 2024.
Morgan’s counsel sent an email to RTA’s counsel on Monday,
December 18, 2023, attempting to reschedule the depositions to take place at his
office in Broadview Heights on January 8, 2024. Morgan’s counsel attached three
“amended notices of depositions” for the witnesses and requested RTA’s counsel to
provide alternate dates if that date did not work. RTA’s counsel replied via email,
stating that Morgan’s counsel could not “notice particular nonparty employees to
deposition and there’s no court order that any of these three (3) nonparties appear
in Broadview [Heights].”
Morgan filed her brief in opposition to RTA’s summary judgment on
January 10, 2024. Morgan claims that because RTA’s counsel did not produce its
employees for deposition, she was forced to respond to RTA’s summary judgment
motion without taking a single deposition. In its reply, RTA argued that Morgan
failed to meet her reciprocal burden of production in her brief in opposition.
Specifically, RTA asserted that Morgan failed to support her brief in opposition with
any evidence to refute RTA’s medical expert’s opinion. Morgan subsequently filed a
motion for leave to supplement her brief in opposition to include citations to her
medical expert’s deposition testimony.
On January 12, 2024, Morgan again moved for an order to show cause
and for sanctions, requesting the court to compel RTA and its counsel to appear and
show cause why they should not be held in contempt for their defiance of the court’s
December 1, 2023 order and requesting the court to sanction RTA and its counsel.
The trial court granted Morgan’s motion to show cause and ordered
RTA and its counsel to appear before the court and show cause why they should not
be held in contempt for failure to obey the court’s December 1, 2023 order.
The trial court held a hearing on Morgan’s show-cause motion on
January 23, 2024. It found that RTA and its counsel were in violation of the court’s
December 1st and 15th orders compelling the depositions. The court explained that
RTA’s counsel’s reason for violating the court’s order because he disagreed with the
location of the depositions was unsupported by Ohio law. The court ordered RTA to
pay sanctions in the amount of Morgan’s attorney fees and court reporter costs
associated with the violation. The court also instructed Morgan’s counsel to submit
fees and costs to the court.
The court further ordered that the three depositions “occur
immediately” and that RTA would be sanctioned each day the depositions were not
completed, which the court said the clock would begin on January 24, 2024.
RTA appealed the trial court’s contempt order, but this court
dismissed the appeal for lack of final appealable order because the trial court had
not determined the amount of sanctions at the time of the appeal, nor did it specify
an opportunity for RTA to purge the sanctions. Morgan v. Greater Cleveland
Regional Transit Auth., No. 113582 (8th Dist. Feb. 29, 2024) (motion No. 572445).
Upon remand, the trial court denied RTA’s motion for summary
judgment, finding that genuine issues of material fact remained. RTA filed a notice
of appeal from this judgment.
Morgan’s counsel filed a memorandum in support of attorney fees and
costs. He included a detailed fee invoice as well as an affidavit describing his
experience as an attorney.
RTA and its counsel opposed Morgan’s memorandum, arguing that
they were not in contempt and there was no basis for sanctions.
The trial court journalized its previous finding of contempt on
April 30, 2024, and ordered that RTA may purge the contempt by paying Morgan’s
counsel the full amount of $13,870 in reasonable attorney fees and $300 in court
reporter costs on or before May 31, 2024. RTA filed a timely notice of appeal from
this judgment as well.
II. Political-Subdivision Immunity
In its first assignment of error, RTA argues that the trial court erred
when it denied its summary judgment motion, denying it the benefit of immunity
afforded to city transit authorities under R.C. Ch. 2744.
A. Summary Judgment Standard
Civ.R. 56(C) states that summary judgment shall be rendered if “the
pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the
action, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”
Summary judgment is appropriate where (1) there is no genuine issue
as to any material fact; (2) the moving party is entitled to judgment as a matter of
law; and (3) reasonable minds can come to but one conclusion, and that conclusion
is adverse to the party against whom the motion for summary judgment is made,
who is entitled to have the evidence construed most strongly in his or her favor.
Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66 (1978).
We review a trial court’s decision on summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
B. R.C. Chapter 2744
The Political Subdivision Tort Liability Act under R.C. Ch. 2744 sets
forth a three-tiered analysis for determining whether a political subdivision is
immune from liability for injury or loss to property. Colbert v. Cleveland, 2003-
Ohio-3319, ¶ 7, citing Greene Cty. Agriculture Soc. v. Liming, 89 Ohio St.3d 551,
556-557 (2000).
In the first tier of the analysis, the court applies the general rule
provided in R.C. 2744.02(A)(1) that a political subdivision is generally “not liable in
damages in a civil action for injury, death, or loss to person or property allegedly
caused by any act or omission of the political subdivision or an employee of the
political subdivision in connection with a governmental or proprietary function.”
That immunity is not absolute, however. R.C. 2744.02(B); Cater v. Cleveland, 83
Ohio St.3d 24, 28 (1998). The second tier of the analysis requires courts to consider
whether any of the five exceptions to immunity apply as set forth in R.C. 2744.02(B).
Colbert at ¶ 9.
Morgan claims that the immunity exceptions set forth in
R.C. 2744.02(B)(1) and (2) apply. R.C. 2744.02(B)(1) provides an exception to
immunity when injuries are “caused by the negligent operation of any motor vehicle
by their employees when the employees are engaged within the scope of their
employment and authority.” R.C. 2744.02(B)(2) provides an exception to immunity
for “the negligent performance of acts by their employees with respect to proprietary
functions of the political subdivisions.”
If an exception applies, then immunity may be reinstated under the
third tier of the analysis if the political subdivision can demonstrate the applicability
of any of the defenses set forth in R.C. 2744.03. Colbert, 2003-Ohio-3319, at ¶ 9.
The defenses set forth in R.C. 2744.03, however, are inapplicable in this case.
There is no question that RTA is a political subdivision pursuant to
R.C. 306.31. Parsons v. Greater Cleveland Regional Transit Auth., 2010-Ohio-266,
¶ 7 (8th Dist.), citing Drexler v. Greater Cleveland Regional Transit Auth., 80 Ohio
App.3d 367, 370 (8th Dist. 1992). Furthermore, the operation of a city bus line is a
proprietary function. R.C. 2744.01(G)(2)(c). Thus, under the first tier of the
analysis, this case involves a political subdivision engaged in a proprietary function.
Therefore, RTA is immune from liability for Morgan’s injury unless one of the
exceptions under R.C. 2744.02(B)(1) or (2) applies to expose it to liability under the
second tier of the immunity analysis.
1. “Operation” of the Bus Under R.C. 2744.02(B)(1)
The parties do not dispute that the bus driver was acting within the
scope of his employment and authority when Morgan was injured. Neither do the
parties dispute that a city bus is a “motor vehicle.” But RTA argues that a bus driver
shutting the bus door on someone’s wrist as that person exits the bus does not fall
within the meaning of the “negligent operation of a motor vehicle.” Specifically, RTA
maintains that because the bus driver was not driving or moving the bus when he
closed the bus door on Morgan’s wrist, the exception under R.C. 2744.02(B)(1) does
not apply. We disagree.
In support of its argument, RTA relies on Doe v. Marlington Local
School Dist. Bd. Of Edn., 2009-Ohio-1360. In Doe, a student had been sexually
molested by another student while on the school bus. The student’s guardians sued
the school district, arguing that the exception to immunity in R.C. 2744.02(B)(1)
applied. They argued “that in the context of a school bus, ‘operation of any motor
vehicle’ means all of the essential functions that the bus driver is trained or required
to do by law.” Id. at ¶ 9.
The Ohio Supreme Court explained in Doe that resolution of the issue
depended on the meaning of “‘operation of’” within R.C. 2744.02(B)(1). Id. at ¶ 17,
quoting R.C. 2744.02(B)(1). The Court noted that the dictionary definition
“suggests that ‘operation,’ when used in reference to a motor vehicle, pertains to
controlling or directing the functioning of the motor vehicle itself.” Id. at ¶ 20. The
Court also looked to the definition of “operate” in R.C. 4511.01, which it said “means
‘to cause or have caused movement of a vehicle, streetcar, or trackless trolley.’” Id.
at ¶ 23, citing R.C. 4511.01(HHH). The Court found the definition of “operate” in
R.C. 4511.01(HHH) to be “useful in gleaning the meaning of ‘operation’ in
R.C. 2744.01(B)(1).” Id. at ¶ 24. Relying on the definition of “operate” in
R.C. 4511.01(HHH) as well as the plain and ordinary meaning of the word, the Court
determined that “the exception to immunity in R.C. 2744.02(B)(1) for the negligent
operation of a motor vehicle pertains only to negligence in driving or otherwise
causing the vehicle to be moved.” Id. at ¶ 26. It then held that the school district
was entitled to immunity under R.C. 2744.02(B)(1) because “‘negligent operation of
any motor vehicle’ does not encompass supervision of the conduct of the passengers
in the vehicle.” Id. at the syllabus, quoting R.C. 2744.02(B)(1).
We find Doe to be distinguishable from the present case. Doe involved
a negligent supervision claim against a school district. While we agree that
negligently supervising passengers on a bus would not fall within the exception to
immunity under R.C. 2744.02(B)(1), we find that closing the bus doors falls within
the plain and ordinary meaning of “operating” the bus. Indeed, operating the bus
doors is a normal and necessary function of driving the bus.
RTA also argues that Dub v. Beachwood, 2010-Ohio-5135 (8th Dist.),
is “instructive and on point” because it involved a passenger injured while exiting a
city van and this court relied on Doe, 2009-Ohio-1360, when determining that “the
evidence demonstrate[d] that the van driver was not driving or otherwise causing
the vehicle to be moved” when the passenger was injured. In Dub, the plaintiff fell
while exiting a city van provided for senior citizens’ use within the city. The plaintiff
sued the city, arguing that the van driver failed to assist her as she exited the van.
This court held that the exception in R.C. 2744.02(B)(1) did not apply and, therefore,
the city was entitled to immunity for several reasons, including the fact that it was
clear from “[t]he literature given to the passengers” when they sign up for the service
that they “must provide an escort if they are in need of personal assistance.” Id. at
¶ 27. We concluded that the van drivers did not have a duty to assist passengers
exiting the bus. Id. Additionally, the passenger stated that she fell on the ice as she
exited the van. We explained that to prevail in a slip-and-fall negligence claim, the
passenger had to present evidence that “the defendant was actively negligent in
permitting and/or creating the unnatural accumulation.” Id., citing Lawrence v.
Jiffy Print, Inc., 2005-Ohio-4043, ¶ 27 (11th Dist.). We therefore disagree with RTA
that Dub is instructive here.
What is clear from Doe and Dub is that the operation of a city bus or
van does not include supervising or assisting passengers. What it does include is
operating the bus doors; i.e., operating the bus doors falls within the meaning of the
normal “operation of any motor vehicle” in R.C. 2744.02(B)(1). And if a plaintiff
establishes that a bus driver was negligent in operating the bus doors, then the
exception to immunity set forth in R.C. 2744.02(B)(1) applies. Therefore, RTA is
not entitled to immunity as a matter of law with respect to this exception.
Accordingly, we find no merit to RTA’s arguments regarding R.C.
2744.02(B)(1).
2. Negligence Under R.C. 2744.02(B)(2)
RTA further argues that Morgan “failed to establish that her alleged
injury was proximately caused by the alleged incident.” Specifically, RTA argues
that Morgan failed to present acceptable Civ.R. 56(C) evidence of expert medical
testimony regarding causation in her response to RTA’s motion for summary
judgment. Again, we disagree.
Under Civ.R. 56(C), the movant has the initial burden to show there
is no genuine issue of material fact. Byrd v. Smith, 2006-Ohio-3455, ¶ 10, citing
Dresher v. Burt, 75 Ohio St.3d 280, 294 (1996). The nonmoving party then has a
reciprocal burden. Id. The nonmovant’s response, by affidavit or as otherwise
provided in Civ.R. 56, must set forth specific facts showing there is a genuine issue
for trial and may not rest upon mere allegations or denials in the pleadings.
Civ.R. 56(E).
“Generally, the issue of proximate cause is a question of fact and is not
resolvable by means of summary judgment.” Lesco v. Heaton, 2010-Ohio-3880,
¶ 37 (8th Dist.), citing Creech v. Brock & Assocs. Constr., 2009-Ohio-3930, ¶ 14
(12th Dist.); see also Strother v. Hutchinson, 67 Ohio St.2d 282, 288 (1981), citing
Clinger v. Duncan, 166 Ohio St. 216, 223 (1957) (“Ordinarily, proximate cause is a
question of fact for the jury.”).
“Summary judgment proceedings prohibit the trial court from
weighing the evidence and limit the trial court to construing the evidence in the light
most favorable to the nonmoving party.” Pearson v. Alpha Phi Homes, Inc.,
2019-Ohio-960, ¶ 9 (9th Dist.), citing Nationstar Mtge., LLC v. Waisanen,
2017-Ohio-131, ¶ 8 (9th Dist.). “In a summary judgment review, the court may not
weigh the proof or choose among reasonable inferences, and the court is limited to
examining the evidence in the light most favorable to the non-moving party.”
Coterel v. Reed, 2016-Ohio-7411, ¶ 12 (2d Dist.), citing Dupler v. Mansfield Journal
Co., Inc., 64 Ohio St.2d 116, 121 (1980). “[B]ecause summary judgment is a
procedural device to terminate litigation, it must be awarded with caution. Doubts
must be resolved in favor of the non-moving party.” Murphy v. Reynoldsburg, 65
Ohio St.3d 356, 359 (1992), citing Osborne v. Lyles, 63 Ohio St.3d 326, 333 (1992).
In a negligence action, the plaintiff must prove that (1) the defendant
owed a duty to the plaintiff, (2) the defendant breached that duty, and (3) the
plaintiff’s injury was proximately caused by the defendant’s breach. Strother at 287.
For purposes of summary judgment, RTA conceded the elements of duty and breach
of duty. Thus, proximate cause is the only element at issue in this appeal.
RTA supported its motion for summary judgment with an affidavit
from its medical expert, Dr. Douglas Gula, as well as Dr. Gula’s curriculum vitae and
expert report. Dr. Gula opined that Morgan did not suffer an injury when the driver
closed the door on her wrist. Dr. Gula explained that Morgan’s wrist pain is due to
her extensive medical history and “multitude of morbidities.”
In her brief in opposition, Morgan asserted that her medical expert,
Dr. Dawn Zacharias, opined in her report that Morgan’s injuries were a direct and
proximate result of the September 20, 2020 incident when the bus driver closed the
bus door on Ms. Morgan’s left wrist. However, Morgan did not attach her expert
report to her brief in opposition with an affidavit verifying its authenticity. But
Morgan subsequently moved the trial court for leave to supplement her brief in
opposition with her expert’s sworn deposition testimony, citing to pages in the
deposition where her expert opined that the RTA bus door closing on Morgan’s wrist
on September 20, 2020, proximately caused Morgan’s injuries.
RTA argues that the trial court never ruled on Morgan’s motion to
supplement her brief in opposition with her expert’s deposition testimony. RTA
maintains that we must therefore presume that the trial court denied Morgan’s
motion because of the well-established rule that all motions not ruled upon by the
trial court are presumed denied. See State v. Duncan, 2012-Ohio-3683, ¶ 4 (8th
Dist.) (motions not ruled on when a trial court enters final judgment are considered
denied). We disagree. This rule applies when the trial court has not ruled on the
motion by the time it enters final judgment in the case. Because this is an
interlocutory appeal, the rule is inapplicable here.
In support of its argument, RTA also cites Ogolo v. Greater Cleveland
Regional Transit Auth., 2013-Ohio-4921, ¶ 8-16 (8th Dist.). In Ogolo, the plaintiff
sustained a head injury on an RTA bus when the bus struck a cement barrier in the
road. The plaintiff subsequently sued RTA. At issue on appeal was whether expert
testimony was necessary to establish proximate cause. This court held that it was
because “few injuries could be more ‘internal and elusive’ than a closed head injury
unaccompanied by any observable, external signs of trauma.” Id. at ¶ 14. But we
also noted that in some cases, “the causal nexus between an accident and the alleged
injury is so clear as to obviate the need for expert testimony in a personal injury
claim.” Id.
In this case, Morgan’s medical expert opined that the bus door closing
on Morgan’s wrist caused Morgan’s injuries.2 RTA’s expert opined the opposite.
This creates a question of fact. Moreover, Morgan is fully capable of testifying that
when the bus doors closed on her wrist, she was injured and experienced pain. See
id. The extent of that pain is for the trier of fact. Viewing the evidence in a light
most favorable to Morgan, as we are required to do, we agree with the trial court that
questions of fact remain in this case.
RTA also argues that because it submitted a video that it claims
proved Morgan was not injured when the bus door closed on her hand, no genuine
issues of fact remain. The video that RTA is referring to is a video of an RTA
employee voluntarily placing his wrists between the bus doors and closing the doors
on his wrists. Supposedly, the employee did not experience pain when the doors
closed on his wrist, which RTA claims is because the doors have four-inch rubber
gaskets “protecting the door opening.” In support of this argument, RTA cites to
Scott v. Harris, 550 U.S. 372 (2007), where the United States Supreme Court held
2 RTA argues that Morgan’s expert fails to create a genuine issue of material fact because
she is an allergist that only reviewed Morgan’s medical records and testified that she does
not want to be an expert or testify in this case but admitted she would appear if
subpoenaed. Morgan’s expert also admitted that RTA’s expert may have a more thorough
opinion of Morgan’s injuries than she did. However, in determining a motion for
summary judgment, a court may not weigh or assess the credibility of one expert over
another. Johnson v. Pohlman, 2005-Ohio-3554, ¶ 37 (8th Dist.).
that summary judgment was proper when a video in the case blatantly contradicted
the plaintiff’s version of events. Id. at 380. The video in this case, however, does
not blatantly contradict Morgan’s version of events. Just because one person is not
injured when the bus doors close on his or her wrist does not mean that someone
else cannot be injured under the same or similar circumstances.
RTA submitted another video of Morgan exiting the bus. RTA
contends that the video shows Morgan did not cry out or scream when the doors
closed on her wrist and, thus, it shows she did not suffer an injury. We also disagree
that this video proves that Morgan did not suffer an injury. Not everyone cries out
in pain when they suffer an injury.
RTA further argues that respondeat superior is not an exception to
immunity. However, this court has explained that “‘[a] political subdivision may not
be held liable under a theory of respondeat superior unless one of the exceptions to
the sovereign immunity listed in R.C. 2744.02(B) applies.’” McKee v. McCann,
2017-Ohio-7181, ¶ 48 (8th Dist.), quoting Reno v. Centerville, 2004-Ohio-781, ¶ 53
(2d Dist.). Because we have determined that a question of fact remains with respect
to whether the exception set forth in R.C. 2744.02(B)(2) applies, RTA’s argument
has no merit.
After review, we find no merit to RTA’s arguments that the exceptions
in R.C. 2744.02(B)(1) and (2) are inapplicable in this case. We conclude that
genuine questions of material fact remain regarding both subsections. Therefore,
we overrule RTA’s first assignment of error.
III. Discovery Violations and Contempt Proceedings
In its second assignment of error, RTA argues that the trial court erred
when it found RTA and its counsel in contempt of court for violating the trial court’s
December 1, 2023 judgment granting Morgan’s motion to compel and ordering that
all depositions be completed by January 8, 2024, and its December 15, 2023
judgment reinforcing its former order that all depositions be completed by January
8, 2024. We note that the only depositions that had not yet been taken were those
of RTA’s three employees in which it had identified through discovery as possible
witnesses who had discoverable information. Notably, one of these employees was
the bus driver who closed the bus door on Morgan’s wrist as she exited the RTA bus.
A. Standard of Review
It is well established that a trial court enjoys broad discretion in the
regulation of discovery proceedings. Berger v. Lu-Jean Feng, 2012-Ohio-1041, ¶ 56
(8th Dist.), citing Hogan v. Hogan, 2003-Ohio-4747, ¶ 15 (12th Dist.). Indeed,
“[t]he discovery rules give the trial court great latitude in crafting sanctions to fit
discovery abuses.” Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256 (1999).
We therefore review a trial court’s judgment regarding discovery matters for abuse
of discretion. State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 469 (1998).
Contempt powers are considered inherent in the court and are
considered necessary to the proper exercise of judicial functions. Denovchek, 36
Ohio St.3d at 15. Because the primary purpose of contempt proceedings is to
preserve the authority and proper functioning of the court, we also review the trial
court’s decisions in contempt proceedings for an abuse of discretion. Id. at 16.
In applying the abuse-of-discretion standard of review, we cannot
replace the trial court’s judgment with our own. Lahoud v. Tri-Monex, Inc., 2011-
Ohio-4120, ¶ 38 (8th Dist.), citing In re Jane Doe 1, 57 Ohio St.3d 135, 137-138
(1991). An abuse of discretion occurs when the trial court’s decision is arbitrary,
unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). It is axiomatic, however, that a trial “court does not have discretion to
misapply the law.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 38. Thus, an abuse of
discretion also occurs when a court “‘applies the wrong legal standard, misapplies
the correct legal standard, or relies on clearly erroneous findings of fact.’” Thomas
v. Cleveland, 2008-Ohio-1720, ¶ 15 (8th Dist.), quoting Berger v. Mayfield, 265
F.3d 399 (6th Cir. 2001).
B. Civil Contempt
Contempt of court has been defined as the “disobedience of an order
of a court, conduct which brings the administration of justice into disrespect, or
which tends to embarrass, impede or obstruct a court in the performance of its
functions.” In re Contempt of Morris, 110 Ohio App.3d 475, 479 (8th Dist. 1996),
citing Denovchek at 15. “The purpose of contempt proceedings is to secure the
dignity of the courts and the uninterrupted and unimpeded administration of
justice.” Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55 (1971), paragraph two of
the syllabus. A court has both inherent and statutory authority to punish contempt.
Howell v. Howell, 2005-Ohio-2798, ¶ 19 (10th Dist.), quoting In re Contempt of
Morris at 479.
This case involves indirect, civil contempt. It is indirect contempt
because it involves conduct that occurred outside of the presence of the court. In re
J.M., 2008-Ohio-6763, ¶ 46 (12th Dist.). It is civil contempt because the character
and purpose of the punishment is to compensate for losses or damages sustained by
reason of noncompliance with the court’s order. Pugh v. Pugh, 15 Ohio St.3d 136,
140 (1984).
Sanctions for noncompliance in civil contempt proceedings may
include “fines designed to compensate the other party for the losses incurred as a
result of the contemnor’s refusal to comply.” M.A.B. v. B.R.L., 2024-Ohio-573, ¶ 27
(8th Dist.), quoting Williams v. Cordle, 1996 Ohio App. LEXIS 388, *13 (10th Dist.
Feb. 8, 1996). And although a prison sentence may be imposed in cases of civil
contempt, the contemnor must be afforded the opportunity to purge the contempt.
Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253 (1980). “Once the contemnor
purges his contempt, any sanctions will be discontinued because compliance has
been achieved.” U.S. Bank Natl. Assn. v. Golf Course Mgt., Inc., 2009-Ohio-2807,
¶ 16 (12th Dist.). Accordingly, the contemnor is said to “carry the keys to his prison
in his own pocket.” Brown at 253.
To establish civil contempt, the complainant must establish by clear
and convincing evidence (1) the existence of a valid court order, (2) the respondent
had knowledge of the order, and (3) the respondent violated the order. In re K.B.,
2012-Ohio-5507, ¶ 77 (8th Dist.). Once the prima facie case of contempt has been
established by clear and convincing evidence, the burden shifts to the nonmoving
party to either rebut the initial showing of contempt or establish an affirmative
defense by a preponderance of the evidence. K.M.M. v. A.J.T., 2021-Ohio-2452, ¶
24 (8th Dist.), citing Allen v. Allen, 2003-Ohio-954, ¶ 16 (10th Dist.).
The burden of proof for civil contempt is clear and convincing
evidence. Flowers v. Flowers 2011-Ohio-5972, ¶ 9 (11th Dist.). “Clear and
convincing evidence is that measure or degree of proof . . . which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
C. Civ.R. 45
RTA first argues that Morgan did not properly serve the RTA
employees with subpoenas pursuant to Civ.R. 45. Specifically, RTA contends that
because Morgan did not personally serve its employees in March 2023, Morgan
“violate[d] the plain language of Civil Rule 45(B).” RTA maintains that without valid
subpoenas, the trial court lacked the authority to compel the RTA employees’
depositions. We disagree that Morgan did not validly serve the RTA employees with
subpoenas.
Civ.R. 45(B) states in pertinent part:
Service of a subpoena upon a person named therein shall be made by
delivering a copy of the subpoena to the person, by reading it to him or
her in person, by leaving it at the person’s usual place of residence, or
by placing a sealed envelope containing the subpoena in the United
States mail as certified or express mail return receipt requested with
instructions to the delivering postal authority to show to whom
delivered, date of delivery and address where delivered, and by
tendering to the person upon demand the fees for one day’s attendance
and the mileage allowed by law. The person responsible for serving the
subpoena shall file a return of the subpoena with the clerk.
In March 2023, Morgan sent the subpoenas to the RTA employees by
certified mail to the address that RTA had given Morgan when it identified them as
witnesses with possible discoverable information, which was their place of
employment at RTA’s headquarters in downtown Cleveland. A legal assistant for
RTA signed for the subpoenas. Morgan filed the returns of service for the subpoenas
with the clerk of courts. The Ohio Supreme Court has held, “Where a subpoena is
left at the business location or place of employment of a witness and where that
witness has actual knowledge of the subpoena, a valid service of summons has been
completed.” Denovchek, 36 Ohio St.3d at 15. Because a legal assistant at RTA signed
for the subpoenas, and nothing in the record indicates otherwise, we can safely
presume that the RTA employees had actual knowledge of the subpoenas. Thus,
Morgan properly served the RTA employees with subpoenas.
However, we agree with RTA that the trial court could not find RTA in
contempt of court or sanction it for not producing its employees for the depositions
when the RTA employees were not parties to the case.
According to the Ohio Rules of Civil Procedure, “[t]he attendance of a
party deponent may be compelled by the use of notice of examination[,]” but “[t]he
attendance of a witness deponent may be compelled by the use of subpoena as
provided by Civ.R. 45.” Civ.R. 30(A). The Ohio Supreme Court has explained that
“Civ.R. 30(A) provides that the attendance of a nonparty witness deponent should
be compelled by the use of subpoena as provided by Civ.R. 45.” (Emphasis added.)
State ex rel. The V Cos., 81 Ohio St.3d at 469.
Civ.R. 45 also sets forth what courts may do when a person validly
served with a subpoena fails to appear for a deposition. Civ.R. 45(E) provides that
“[f]ailure by any person without adequate excuse to obey a subpoena served upon
that person may be deemed a contempt of the court from which the subpoena
issued.” This rule also gives courts the power to issue sanctions to persons validly
served with a subpoena if they fail to appear for a deposition. It states, “A
subpoenaed person or that person’s attorney who frivolously resists discovery under
this rule may be required by the court to pay the reasonable expenses, including
reasonable attorney’s fees, of the party seeking the discovery.” Id.
We note that RTA’s counsel did not file a notice of appearance or
represent RTA’s three employees as counsel. Rather, RTA’s counsel has consistently
argued that the RTA employees are nonparty witnesses that must be personally
served with a subpoena and RTA’s counsel cannot be held in contempt for failing to
produce the RTA employees for deposition. And while Morgan subpoenaed RTA’s
three employees in March 2023, Morgan did not move to compel the three RTA
employees to attend the depositions or seek sanctions from the RTA employees.
Instead, Morgan moved to compel RTA to produce the RTA employees for
deposition.
In Grady v. Charles Kalinsky, D.D.S., 2005-Ohio-5550 (8th Dist.),
Grady filed a malpractice complaint against his dentist. The dentist’s counsel
requested that Grady (unrepresented by counsel at that point) provide dates for
Grady’s expert’s deposition. Grady did not respond to the request. The dentist’s
counsel sent a second request, which Grady also ignored. Eventually, the dentist
moved to exclude Grady’s expert as a witness due to Grady’s “dilatory conduct in
refusing to produce [the expert] for deposition and his attempts to prevent the
deposition.” Id. at ¶ 9. The trial court granted the dentist’s motion. Id. After the
trial court subsequently granted the dentist summary judgment, Grady appealed.
Id. at ¶ 11.
On appeal, this court reversed the trial court’s decision excluding
Grady’s expert and granting summary judgment to the dentist. Id. at ¶ 2. We stated
that while “[t]he rules of discovery afford the trial court great latitude in crafting
sanctions to fit discovery abuses,” Grady’s “resistance did not violate a court order
or any discovery rule.” Id. at ¶ 15. We further explained, “There is no rule requiring
a party to produce an expert witness for deposition, nor is there any rule under
which a party may be sanctioned for failing to produce a non-party witness for
deposition.” Id.
Similarly, in Lowe v. Univ. Hosps. of Cleveland, 2002-Ohio-4084
(8th Dist.), the trial court sanctioned the plaintiff by excluding his expert witness
after the plaintiff failed to make the expert available for deposition. Id. at ¶ 14. The
plaintiff argued on appeal that the trial court erred when it ordered him to produce
his expert witness for deposition and sanctioning him for failing to do so. This court
agreed.
We explained in Lowe that the defendants did not subpoena the
expert or seek an order finding him in contempt. Id. at ¶ 22. We pointed out that
“[a] deposition of a non-party witness can be taken with the aid of a subpoena to
compel the witness’s attendance” and “[f]ailure to obey the subpoena may be
deemed a contempt of the issuing court by the person subpoenaed.” Id., citing
Civ.R. 30 and 45. We explained that the defendants “never filed a motion to compel
[plaintiffs] to provide Dr. Payne for deposition, with good reason: There is no rule
requiring a party to produce an expert witness for deposition, nor is there any rule
under which a party may be sanctioned for failing to produce a non-party witness
for deposition.” (Emphasis added.) Id. at ¶ 23, citing State ex rel. The V Cos., 81
Ohio St.3d at 469-470, and Randle v. Gordon, 1987 Ohio App. LEXIS 9432 (Oct. 29,
1997 8th Dist.).
We further noted in Lowe that it was “arbitrary and unreasonable to
require a party to provide a non-party witness for deposition because the party has
no control over another person” and that “[w]hile professional courtesy and a
mutual desire to accommodate busy experts might make it reasonable for parties to
schedule expert depositions by agreement, the only means to compel an expert
deposition is by subpoena.” Id. at ¶ 23, 25.
In Tiburzi v. Adience, Inc., 2012-Ohio-803 (8th Dist.), this court
reversed the trial court after it excluded the plaintiff’s expert report after the expert
failed to appear for his deposition. Id. at ¶ 23. We explained that if “‘a non-party
witness fails to obey a subpoena and attend his deposition, Civ.R. 45(E) provides
that a court may find the non-party witness in contempt of court, and additionally
authorizes the court to order the non-party witness . . . to pay the deposing party’s
reasonable costs and attorney’s fees incurred.’” Id. at ¶ 20, quoting Ohio Civ. Rights
Comm. v. Burch, 2005-Ohio-259, ¶ 16. We further explained that although the
defendant subpoenaed the plaintiff’s expert to appear for a deposition, the
defendant never moved to compel the expert’s appearance to be deposed. Id. at ¶
23.
In a more recent case, this court applied these same principles to
affirm the trial court’s judgment “denying a motion to compel the noticed deposition
of a nonparty.” Koeblitz v. Koeblitz, 2021-Ohio-2269, ¶ 30 (8th Dist.). The plaintiff
in Koeblitz “attempted to notice” the deposition of a nonparty receiver appointed to
the case. When the witness failed to appear, the plaintiff moved to compel. This
court explained:
[U]nder Civ.R. 30(A), a nonparty witness may only be compelled to sit
for a deposition or otherwise provide discovery materials by the use of
a subpoena as provided by Civ.R. 45, as contrasted with the attendance
of a party to the proceeding who may be compelled to sit for deposition
by the use of a notice of examination under Civ.R. 30(B). [State ex rel.
The V Cos., 81 Ohio St.3d at 469] citing Civ.R. 30(A). A court may
properly exercise its discretion to deny a motion to compel discovery
that is not made in accordance with the Ohio Civil Rules. Id.; see also
Yidi, L.L.C. v. JHB Hotel, L.L.C., 2016-Ohio-6955, 70 N.E.3d 1231, ¶ 10
(8th Dist.) (trial court cannot compel discovery from a nonparty when
no subpoena under Civ.R. 45 has been issued).
Id. at ¶ 28.
Here, Morgan moved to compel RTA to produce its three employees
— nonparties to the case — for deposition, which the trial court granted. However,
under the Rules of Civil Procedure, RTA did not have to produce its employees for
deposition. While we certainly understand the trial court’s frustration in this case
and note that professional courtesy and a mutual desire to accommodate busy
schedules to efficiently complete discovery might make it reasonable for an
employer to coordinate depositions or provide representation for subpoenaed
employees acting in the course and scope of employment, the trial court lacked
authority to find RTA or its counsel in contempt for not producing its employees,
who were nonparty witnesses to this case. 3
What Morgan should have done when RTA’s employees failed to show
for their depositions in April 2023, is move the court to compel their attendance at
the depositions or for an order to show cause and explain why they should not be
held in contempt of court. Civ.R. 45(E); Tiburzi, 2012-Ohio-803, at ¶ 20. According
to R.C. 1907.18(A)(3), county court judges have jurisdiction and authority to “[i]ssue
subpoenas to compel the attendance of witnesses to give evidence in causes or
matters pending before the judges, or for the purpose of taking depositions or
perpetuating testimony[.]” A court obtains jurisdiction over a witness through a
subpoena. State v. Eatmon, 2022-Ohio-1197, ¶ 24. “The trial court holds continuing
3 The record at this stage of the proceedings does not appear to reflect that RTA’s counsel
interfered or instructed the RTA employees to ignore a validly served subpoena or
otherwise interfered with discovery. Thus, based upon the record, the trial court’s order
for sanctions against RTA’s counsel for failing to produce RTA employees for deposition
is unsupported by the record.
jurisdiction over a witness who has been served with a subpoena.” State v. Preston,
1979 Ohio App. LEXIS 9616 (6th Dist. Jun. 8, 1979). Thus, the trial court retains
jurisdiction over RTA’s three employees via the validly served subpoenas that
Morgan sent to the witnesses in March 2023.
Accordingly, we conclude that the trial court misapplied the law and,
thus, abused its discretion when it found RTA and its counsel in contempt and
ordered them to pay Morgan’s reasonable attorney fees and costs. RTA’s second
assignment of error is sustained.
RTA argues in its third assignment of error the trial court should have
held an evidentiary hearing to determine the reasonableness of the attorney fees.
Because we are reversing the trial court’s judgment finding RTA and its counsel in
contempt, this assignment of error is now moot.
Judgment affirmed in part, reversed in part, and remanded for
further proceedings consistent with this opinion.
It is ordered that appellant and appellee share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
MICHELLE J. SHEEHAN, JUDGE
EILEEN A. GALLAGHER, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR