[Cite as Yellowbook, Inc. v. L. Patrick Mulligan & Assocs.,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

YELLOWBOOK, INC., fka : YELLOWBOOK SALES & : DISTRIBUTION CO., INC. : Appellate Case No. 26090 : Plaintiff-Appellee : Trial Court Case No. 12-CV-6968 : v. : (Civil Appeal from : (Common Pleas Court) L. PATRICK MULLIGAN & : ASSOCIATES, : L.P.A. CO., et al. : : Defendants-Appellants :

........... OPINION Rendered on the 24th day of October, 2014. ...........

JAMES G. KOZELIK, Atty. Reg. #0073615, Weltman, Weinberg & Reis, Co. LPA, 175 South 3rd Street, Suite 900, Columbus, Ohio 43215 Attorney for Plaintiff-Appellee, Yellowbook, Inc.

JOHN PAUL RIESER, Atty. Reg. #0017850, Rieser & Marx LLC, 7925 Graceland Street, Dayton, Ohio 45459-3834 Attorney for Defendants-Appellants, L. Patrick Mulligan & Associates, et al.

.............

FAIN, J.

{¶ 1} Defendants-appellants, L. Patrick Mulligan & Associates, L.P.A., Co. and L.

Patrick Mulligan appeal from an order requiring them to pay to plaintiff-appellee Yellowbook, 2

Inc., the sum of $1,330.00 as sanctions for failure to provide discovery, in accordance with

Civ.R. 37. They contend that the award of sanctions was unjust, rendering the trial court’s order

an abuse of discretion.

{¶ 2} We conclude that the trial court did not abuse its discretion, and properly applied

the sanctions required by Civ.R. 37(D) for the defendants’ failure to timely provide discovery.

{¶ 3} Accordingly, the trial court’s order is Affirmed.

I. The Course of the Proceedings

{¶ 4} In September, 2012, Yellowbook commenced an action against L. Patrick Mulligan,

individually, and L. Patrick Mulligan & Associates, L.P.A. Co., the corporate entity, to collect the

sum of $45,988.80 allegedly owed for advertising services. Mulligan and Mulligan LPA filed an

answer and counterclaim with five separate claims for relief. More than two years of contested

litigation proceedings followed, including numerous discovery requests, motions, hearings and

rulings. Pertinent to this appeal, it is undisputed that Yellowbook served both defendants with

several discovery requests on March 7, 2013. After Yellowbook filed its first Motion to

Compel, Mulligan LPA, responded to the discovery requests. However, Mulligan did not

respond to the Interrogatories and Request for Production of Documents directed to him

personally until after Yellowbook filed a second motion to compel discovery. The trial court

granted Yellowbook’s motion to compel, which included an order granting Yellowbook’s request

for attorney fees. After Yellowbook submitted an affidavit setting forth a description of the time

expended and the hourly rate charged by Yellowbook’s counsel for the legal services rendered in

connection with the discovery dispute, the trial court ordered the defendants to pay the sum of 3

$1,330.00 to Yellowbook, as a sanction under Civ. R. 37(D).

II. The Trial Court Did Not Abuse its Discretion by Ordering

Defendants to Pay Attorney Fees as a Sanction for Their

Failure to Comply with Discovery Pursuant to Civ. R. 37 (D).

{¶ 5} The sole assignment of error raised by Mulligan and Mulligan LPA, states as

follows:

THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING

APPELLEE’S RENEWED MOTION TO COMPEL DISCOVERY AND FOR

SANCTIONS.

{¶ 6} Mulligan and Mulligan LPA rely on the language of Civ. R. 37(D) that specifically

permits the court to deny a request for attorney fees, as a discovery sanction, if the award of

expenses is “unjust”. Civ. R. 37(D) states, in pertinent part:

If a party or an officer, director, or a managing agent of a party or a person

designated under Rule 30(B)(5) or Rule 31(A) to testify on behalf of a party fails

*** (2) to serve answers or objections to interrogatories submitted under Rule 33,

after proper service of the interrogatories, or (3) to serve a written response to a

request for inspection submitted under Rule 34, after proper service of the request,

the court in which the action is pending on motion and notice may make such

orders in regard to the failure as are just, and among others it may take any action

authorized under subsections (a), (b), and (c) of subdivision (B)(2) of this rule. In

lieu of any order or in addition thereto, the court shall require the party failing to 4

act or the attorney advising him or both to pay the reasonable expenses, including

attorney's fees, caused by the failure, unless the court expressly finds that the

failure was substantially justified or that other circumstances make an award of

expenses unjust.

{¶ 7} Our review of a trial court’s order granting sanctions for failing to comply with the

discovery rules is based on an abuse-of-discretion standard. Nakoff v. Grandview General

Hospital,

,

(1996), syllabus. A trial court has broad discretion to

fashion an appropriate sanction for a party’s failure to comply with the discovery rules.

Unless the trial court’s decision is arbitrary, unreasonable or unconscionable the court has not

abused its discretion. Blakemore v. Blakemore,

,

(1983).

{¶ 8} Civ. R. 37 specifies a wide range of sanction options, including the recovery of

attorney fees expended to obtain the order to compel, an order prohibiting the noncomplying

party from using the unproduced evidence at trial, or the court may grant judgment against the

party who fails to comply with discovery. We have previously held that Civ. R. 37(D)

mandates the award of attorney fees “absent an express finding that the failure to comply was

substantially justified or that other circumstances would make an award unjust.” Soloman v.

Excel Marketing, Inc.,

,

(2d. Dist. 1996). When

noncompliance with the discovery rules is established, a court abuses its discretion when it fails

to award attorney fees and fails to identify why the failure to comply was justified or why the

award of fees would be unjust. Mays v. Dunaway, 2d Dist. Montgomery No. 19922,

. 5

{¶ 9} In the present case, Mulligan and Mulligan LPA do not dispute the trial court’s

finding that at the time the motion to compel was granted on November 15, 2013, Mulligan had

not yet provided answers to the Interrogatories and Request for Production of Documents

submitted to him on March 7, 2013 by Yellowbook. Mulligan suggests that it is “unjust” to grant

sanctions when the corporate defendant, Mulligan LPA, did comply with the discovery request

directed to both Defendants, notwithstanding the fact that the responses of Mulligan LPA were

forwarded to Yellowbook on June 28, 2013, nearly four months after they were originally

propounded. Mulligan admits that although there were differences in the discovery requests

made to the individual defendant and the corporate defendant, Mulligan’s failure to respond to

the discovery request directed to the individual was “an oversight on the part of Defendant.”

Dkt. 42, p.2. The trial court considered this excuse, reviewed all the facts and circumstances,

and came to the conclusion that “both Mulligan, a licensed attorney, and his counsel, should have

known that each defendant received discovery requests.” Dkt. 43, p.4. The trial court properly

concluded that the failure of Mulligan to answer the discovery submitted to him as an individual

was not substantially justified.

{¶ 10} We also conclude that a sanction of $1,330.00 was not unjust. The trial court must

determine, as a factual finding, an amount that will reasonably compensate the moving party for

its reasonable expenses in pursuing a justifiable order of sanctions. Bellamy v. Montgomery,

,

, 934 N.E.2d. 403 (10th Dist). The trial court relied on the

affidavit of Yellowbook’s counsel to substantiate the costs it incurred to obtain Mulligan’s

compliance with the discovery rules. No evidence was submitted to rebut the reasonableness of

the hourly rate or time expended by Yellowbook’s counsel. The purpose of mandating an award 6

of attorney fees as sanctions for discovery abuse is to compensate the moving party for the cost it

unnecessarily incurred to force the opposing party to comply with the discovery rules. When a

party’s failure to comply with a discovery request is unjustified, it would be unfair to expect the

party who follows the rules to expend resources caused by the opposing party’s noncompliance.

The trial court properly awarded only the amount that was reasonably necessary to reimburse

Yellowbook for its actual expenses in obtaining an order to compel discovery. The sole

assignment of error is overruled.

III. Conclusion

{¶ 11} The sole assignment of error having been overruled, the order of the trial court

from which this appeal is taken is Affirmed.

.............

FROELICH, P.J., and DONOVAN, J., concur.

Copies mailed to:

James G. Kozelek John Paul Rieser Hon. Charles S. Wittenberg (sitting by assignment for Judge Frances E. McGee)