[Cite as Jacobson v. Jonathan Paul Eyewear,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

BRUCE JACOBSON, et al., : OPINION

Plaintiffs-Appellants, : CASE NO. 2012-L-088 (JOSEPH R. COMPOLI, JR., :

Appellant), : - vs - : JONATHAN PAUL EYEWEAR, et al., : Defendant-Appellee.

Civil Appeal from the Lake County Court of Common Pleas, Case No. 09 CV 003340.

Judgment: Affirmed.

Joseph R. Compoli, Jr., 612 East 185th Street, Cleveland, OH 44119; and James R. Goodluck, 3517 St. Albans Road, Cleveland Heights, OH 44121 (For Plaintiffs- Appellants).

Christopher W. St. Marie, Michael B. Pascoe, and Daniel A. DeMarco, Hahn Loeser & Parks, LLP, 200 Public Square, Suite 2800, Cleveland, OH 44114 (For Defendant- Appellee).

TIMOTHY P. CANNON, P.J.

{¶1} Appellants, Attorney Joseph R. Compoli, Jr., Bruce Jacobson, and

Ophthalmology Consultants, Inc., appeal the judgment of the Lake County Court of

Common Pleas. The judgment awarded sanctions pursuant to Civ.R. 37(B)(2) in favor

of appellee, Jonathan Paul Eyewear, in the sum of $1,482 to be paid by Attorney Compoli. Attorney Compoli argues the trial court abused its discretion in awarding

sanctions. As there is competent, credible evidence illustrating Attorney Compoli acted

in direct contravention of the trial court’s order that a witness be deposed, we cannot

conclude the trial court abused its discretion in awarding monetary sanctions. The

judgment is affirmed.

{¶2} On October 13, 2009, Bruce Jacobson and Ophthalmology Consultants,

Inc., represented by Attorney Compoli, filed a five-count complaint for damages and

injunctive relief against Jonathan Paul Eyewear under the federal Telephone Consumer

Protection Act. The complaint alleged that Jonathan Paul Eyewear sent three

unsolicited advertisements via fax to Bruce Jacobson and Ophthalmology Consultants,

Inc., without express invitation or permission.

{¶3} Jonathan Paul Eyewear’s answer set forth several affirmative defenses,

including that it had sent the facsimile with prior express permission. Specifically, the

company contended it had express permission from Freda Martello, an employee at

Ophthalmology Consultants, Inc., to send advertisements via fax. Jonathan Paul

Eyewear subsequently subpoenaed Ms. Martello for a deposition in an effort to

expeditiously resolve the entire issue.

{¶4} In response, Attorney Compoli filed a motion to quash the subpoena. In

his motion, Attorney Compoli argued the proposed deposition would be unjust and

unduly burden Ms. Martello. The motion characterized the proposed routine deposition

as “Rambo litigation tactics” designed to “cajole” and “browbeat a low-level clerical

worker in a deposition.” The trial court denied the motion, explaining that the motion

2 failed to illustrate exactly what undue burden would be placed on Ms. Martello by

attending the deposition.

{¶5} Following the trial court’s denial of the motion to quash, Jonathan Paul

Eyewear sent numerous letters requesting a specific deposition date that would be

convenient for the witness. On April 27, 2010, Attorney Compoli sent a letter to

opposing counsel explaining that Ms. Martello would be available for deposition on May

7, 2010, at 4:00 p.m. Counsel for Jonathan Paul Eyewear confirmed that May 7, 2010,

would be an acceptable date, but noted concern with the late start time, suggesting

instead 10:00 a.m.

{¶6} Attorney Compoli then filed a motion to limit the scope of the deposition.

The trial court denied the motion and set the deposition for 10:00 a.m., per Jonathan

Paul Eyewear’s request.

{¶7} In the afternoon of May 6, 2010, Attorney Compoli sent an email to

opposing counsel, explaining that he was out of town and could not attend the

scheduled deposition for the next morning. Opposing counsel responded on May 6,

2010, noting that, as the matter was proceeding pursuant to a court order, he would be

complying with the order. The attorney noted he did not have authority to grant the

request.

{¶8} Ms. Martello and Attorney Compoli both failed to appear at the scheduled

deposition. Attorney Compoli then voluntarily dismissed the case in the Lake County

Court of Common Pleas without prejudice.

{¶9} As a result of the failure to appear at the deposition, Jonathan Paul

Eyewear filed a motion for sanctions pursuant to Civ.R. 37(B)(2) for disobedience of a

3 court order. After a hearing on the matter, the magistrate issued 20 conclusions of law,

finding Attorney Compoli’s failure to notify opposing counsel that neither he nor Ms.

Martello would appear at the deposition was not substantially justified. Specifically, the

magistrate noted the conduct was sanctionable under both Civ.R. 30 and Civ.R. 37.

The magistrate awarded Jonathan Paul Eyewear the sum of $1,482 to be paid by

Attorney Compoli.

{¶10} Attorney Compoli filed objections to the decision, arguing Jonathan Paul

Eyewear had waived its Civ.R. 37 claim for sanctions via a footnote in a reply pleading.

With some reluctance, the trial court found that Jonathan Paul Eyewear’s claim for relief

under Civ.R. 37 was withdrawn, noting, “[b]ut for defendant’s withdrawal of its Civil Rule

37 claim for sanctions, the outcome herein may have been different.” Thus, the court

granted the objections and rejected the portion of the magistrate’s decision relating to

Civ.R. 37(B)(2) sanctions.

{¶11} Jonathan Paul Eyewear appealed to this court in Jacobson v. Jonathan

Paul Eyewear, 11th Dist. No. Lake 2011-L-098,

. There, we noted

Civ.R. 37(B)(2) permits the trial court to sanction improper conduct regardless of

whether a party makes such a request. Id. at ¶13. We remanded the case, concluding

that, if sanctions were appropriate in this case, the trial court had the authority to

exercise its discretion and award them. Id. at ¶16-18.

{¶12} On remand, the trial court determined sanctions were appropriate and

affirmed the magistrate’s findings of fact and conclusions of law on the matter.

{¶13} Now, appellants appeal and assert one assignment of error:

4 {¶14} “The trial court erred in imposing monetary sanctions, to the prejudice of

Plaintiff and Plaintiff’s counsel.”

{¶15} As an initial matter, despite the above-framed assignment of error, there is

no indication how Bruce Jacobson suffered any prejudice. The trial court awarded

monetary sanctions exclusively against Attorney Compoli.

{¶16} “A trial court has broad discretion when imposing discovery sanctions. A

reviewing court shall review these rulings only for an abuse of discretion.” Nakoff v.

Fairview Gen. Hosp.,

(1996), syllabus. An abuse of discretion is the

trial court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v.

Beechler, 2d Dist. No. 09-CA-54,

, ¶62, quoting Black’s Law Dictionary

11 (8th Ed. 2004). The deferential abuse-of-discretion standard is employed because

the trial court is in the best position to determine whether sanctions are necessary or

appropriate. Its familiarity and discussions with the parties, the attorneys, and the

manner in which they conduct themselves throughout the litigation is difficult to glean

from the record on appeal. Thus, absent a demonstration that the court abused its

discretion, we will not disturb its judgment.

{¶17} Pursuant to its entry, the trial court awarded sanctions pursuant to Civ.R.

37.

{¶18} Civ.R. 37(B)(2) provides for sanctions as a consequence of failing to

follow a court order to provide or permit discovery and allows the aggrieved party to

collect reasonable expenses, including attorney fees, caused by the failure. Civ.R.

37(D) provides for sanctions through Civ.R. 37(B)(2)(a)-(c) for failure to appear at a

deposition and also allows the aggrieved party to collect reasonable expenses.

5 {¶19} Here, many of the assertions advanced by Attorney Compoli at oral

argument and in his merit brief are belied by the record. Though Attorney Compoli

argued he did not set the deposition date and only had three days notice to show up to

the deposition, the record indicates he was contacted by opposing counsel after the

motion to quash was denied on April 7, 2010, in an effort to schedule a deposition date.

After repeated requests, Attorney Compoli finally responded via letter on April 27, 2010,

explaining the witness would be available for deposition on Friday, May 7, 2010, at 4:00

p.m. Thus, Attorney Compoli set the date and knew as early as April 27, 2010, that the

witness was to be deposed on May 7, 2010. In fact, in anticipation of the May 7, 2010

deposition, Attorney Compoli filed a motion to limit the scope of the deposition. In turn,

Jonathan Paul Eyewear exhausted time and resources in filing a response to the

deposition parameters.

{¶20} Following the trial court’s order that the witness was to be deposed on

May 7, 2010, at 10:00 a.m. (the time change per Jonathan Paul Eyewear’s request),

Attorney Compoli sent an e-mail to opposing counsel wherein he stated he was out of

town. After counsel for Jonathan Paul Eyewear stated he intended to comply with the

order of the trial court and appear at the deposition, the record indicates Attorney

Compoli did not contact the trial court nor did he respond to Jonathan Paul Eyewear.

{¶21} Attorney Compoli advanced numerous reasons as to why he ultimately

failed to appear at the deposition. First, Attorney Compoli stated he could not attend the

deposition because he was out of town. However, Attorney Compoli argues in his brief

that he had already planned a voluntary dismissal the evening before the scheduled

deposition, which is why he failed to appear. Attorney Compoli argues that, in failing to

6 appear at the deposition, he protected Ms. Martello from “four hours of potential

harassment, annoyance, embarrassment and intimidation by Defendant’s attorney.” We

note these are the same arguments Attorney Compoli advanced in his motion to quash

the subpoena before the trial court, wherein he contended the proposed deposition

would be unjust and unduly burden Ms. Martello.

{¶22} In any respect, his admission that he did not appear because he intended

to voluntarily dismiss the case exacerbates the problem, especially when, rather than

notifying opposing counsel, he waited until the following Monday to make his intentions

known. As things are, Attorney Compoli acted in direct contravention of the May 6,

2010 court order directing Ms. Martello be deposed. Though the dissent states

sanctions were not substantially justified given that the trial court “waited to the last

minute to issue” its order, that contention belies the record. The reality is Attorney

Compoli had previously selected this date after numerous requests from opposing

counsel, and he knew on April 27, 2010, that the witness was to be deposed on May 7,

2010. The court order was issued May 6, 2010, in response to Attorney Compoli’s own

motion to limit the scope of the deposition and Jonathan Paul Eyewear’s request to

move the deposition from 4:00 p.m. to an earlier time. Additionally, Attorney Compoli

did not inform opposing counsel of his intention not to appear until after the judgment

entry was issued, an action that suggests a flagrant disregard for the order. It therefore

cannot be concluded that the trial court abused its discretion in affirming the

magistrate’s award of sanctions against Attorney Compoli.

{¶23} Though Attorney Compoli argues there is no evidence in the record of bad

faith, a trial court need not make a “bad faith” finding before imposing monetary

7 sanctions. A finding of bad faith or willfulness would be necessary for the harsh

remedies of dismissal or default pursuant to Civ.R. 37(B)(2)(c). Toney v. Berkemer,

(1983). In imposing monetary sanctions, however, a trial court

need only consider whether the order would be just. Civ.R. 37(B)(2).

{¶24} Attorney Compoli also raises ancillary arguments. He contends the trial

court should have held a hearing on the matter before affirming the award of sanctions.

However, a magistrate’s hearing on the matter was previously held wherein evidence

was considered and testimony heard. Attorney Compoli additionally takes exception to

the $1,482 sum, arguing the amount is random and unreasonable; however, he never

objected to the magistrate’s decision on this basis and has therefore waived all but plain

error, which has not been demonstrated.

{¶25} Appellants’ sole assignment of error is without merit.

{¶26} The judgment of the Lake County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with Dissenting Opinion.

____________________

COLLEEN MARY O’TOOLE, J., dissents with Dissenting Opinion.

{¶27} As the majority notes, a trial court’s decision whether to impose discovery

sanctions is reviewed for abuse of discretion. As the Supreme Court of Ohio held long

ago, an abuse of discretion is, fundamentally, judicial decision making which comports

neither with reason, nor the record.

8 {¶28} In this case, Attorney Compoli indicated by letter dated April 27, 2010, that

Ms. Martello would be available for deposition at 4:00 p.m., May 7, 2010. This was

unsatisfactory to opposing counsel, who agreed that the date sufficed, but insisted the

deposition should go forward at 10:00 a.m. April 29, 2010, Attorney Compoli moved the

trial court to limit the scope of the deposition, which motion was opposed May 4, 2010.

{¶29} The trial court did not issue its order denying Attorney Compoli’s motion to

limit the scope of the deposition, and ordering that it go forward at 10:00 a.m., May 7,

2010, until May 6, 2010. Upon learning of the order, Attorney Compoli emailed

opposing counsel, and informed him that, since he was out of town, neither he nor Ms.

Martello would be attending the deposition. Considering the previous disputes

concerning the deposition, and the fact that the trial court did not issue its order

regarding the deposition until the day before, this was perfectly reasonable conduct.

Sanctions under Civ.R. 37(B)(2) are a serious matter. They are appropriate in

egregious cases. Schultz v. Wurdlow, 10th Dist. No. 11AP-62,

, ¶29-31

(sanctions justified when defendant purposefully delayed the judicial process, failed to

comply with discovery order, and did not turn over discovery until two days prior to trial).

In this case, opposing counsel had reasonable opportunity to call off the deposition set

for May 7, 2010, and reschedule it. The majority is wrong in concluding there was

“flagrant disregard” for the trial court’s discovery order. Nothing in the record even hints

at this. Sanctions are not justified.

{¶30} I respectfully dissent.

9