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Hores v. Weaver11/10/2005
der compelling disclosure of Brooks as a witness. Although Hores' reliance on Laubscher is misplaced, we conclude that the trial court's exclusion of Brooks' testimony was an abuse of discretion.
{ } Although a review of the record reveals some parallels between Laubscher and the case at bar, this case is readily distinguishable. As in Laubscher, discovery was not conducted by formal process. Likewise, the record here is silent regarding the filing of interrogatories until Weaver filed his second Motion for Protective Order, on August 4, 2003. Attached to that motion is an exhibit (Exhibit A) entitled "Defendant's Second Set of Interrogatories Propounded upon Plaintiff Thomas Vincent Hores, Jr." Item nine, entitled "Witnesses," requests Hores to " tate the name, address and telephone numbers of every person know to you * whom you claim was * a witness to that incident, whether or not you intend to call such person(s) as a witness at trial." This request for interrogatories is undated, and there is no certificate of service, thus we have no means of determining from the record when, and if, these interrogatories were served on Hores. While "Civ.R. 5 does not mandate the filing of interrogatories, our determination of issues on appeal is constrained to those items which are part of the record before us." Earl Evans Chevrolet, Inc. v. General Motors Corp. 74 Ohio App.3d 266, 281 (emphasis added). Furthermore, since a trial court "speaks through its journal," State ex.rel. Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 118, Weaver's failure to formally submit the interrogatories as part of the record, coupled with the absence of any motion to compel, precludes the court from imposing a protective order on the basis of an alleged failure by Hores to answer a discovery request. Laubscher, 68 Ohio App.3d at 382 (In the absence of any evidence in the record that the necessary interrogatories have been filed, or a court order compelling disclosure, a trial court may not grant a protective order.)
{ } However, our analysis does not end here, since Civ.R. 26(C) "does not address the trial court's inherent power to exclude witnesses from testifying at trial as justice requires." Id. at 381 (emphasis added). A review of the language of the court's March 26, 2004 judgment entry makes it clear that the court did not actually grant a motion for a protective order.
{ } The judgment entry reads, " f the court determines that his testimony is materially different then his prior statements and testimony at other proceedings, the Court will not allow him to testify at trial. If the testimony is consistent with previous statements[,] he will be permitted to testify."
{ } It is well-settled that a motion for a protective order is a "permanent remedial sanction which does not involve evidentiary issues." Id. at 383 (second emphasis added); see also, Hardy v. Newbold, 4th Dist. No. 02CA12, 2003-Ohio-3995, at (citations omitted). Thus, it is clear that the March 26, 2004 ruling is conditional and based upon an evidentiary issue, i.e., whether Brooks' anticipated trial testimony was "materially different" from his prior testimony. Thus, both motions for protective order and the "motion to exclude" were actually motions in limine, upon which the trial court did not make a ruling until the in-chambers hearing on the second day of trial. The trial court's ruling to exclude Brooks' testimony was made orally at this hearing.
{ } As a result, the actual issue we must determine is whether the trial court properly granted Weaver's motion in limine. A motion in limine is considered a preliminary ruling. Pena v. Northeast Ohio Emergency Affiliates (1995), 108 Ohio App.3d 96, 108. As s
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