[Cite as Borsellino v. Cramer, 2012-Ohio-164.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96893

CAROL BORSELLINO, ET AL.

PLAINTIFFS-APPELLANTS 

vs. 

SMYTHE CRAMER CO., ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-720366 

BEFORE: Celebrezze, P.J., S. Gallagher, J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: January 19, 2012 

ATTORNEYS FOR APPELLANTS
Brendan Delay 

24500 Center Ridge Road 

Suite 175 

Westlake, Ohio 44145 

Nate N. Malek 

Law Office of Nate N. Malek, L.L.C. 

29025 Bolingbrook Road 

Cleveland, Ohio 44124 

ATTORNEYS FOR APPELLEES

For Smythe Cramer Co., et al.

Brian D. Sullivan 

George S. Coakley 

Cynthia A. Lammert 

Reminger Co., L.P.A. 

1400 Midland Building 

101 Prospect Avenue, West 

Cleveland, Ohio 44115-1093 

For Mark and Monica Small

David Honig 

James D. Ludwig 

Cleveland Construction, Inc. 

5390 Courseview Drive 

Mason, Ohio 45040 

For Nancy Calabrese

David J. Richard, Jr. 

Dworken & Bernstein Co., L.P.A. 

60 South Park Place 

Painesville, Ohio 44077 

For Diane Greene, et al.

Joseph T. Burke 

Polito, Paulozzi, Rodstrom & Burke, L.L.P. 

21300 Lorain Road 

Fairview Park, Ohio 44126 

FRANK D. CELEBREZZE, JR., P.J.: 
{¶ 1} Appellants, Dr. Samuel and Carol Borsellino, seek reversal of an 

award of attorney fees of $2,000 in favor of appellees, Smythe Cramer Co. 

(d.b.a. Howard Hanna Co.), Dottie and Peter Brooks, and Barristers of Ohio, 

L.L.C., (collectively, the “Agents”); and $943.46 in favor of Mark and Monica 

Smalls (collectively, the “Sellers”). The fees were awarded as a discovery 

sanction for Dr. Borsellino’s failure to appear at a scheduled deposition. The 

Borsellinos now argue that the trial court erred in awarding attorney fees as 

a sanction and take issue with the amount of those fees. After a thorough 

review of the record and case law, we affirm. 

I. Factual and Procedural History

{¶ 2} The Borsellinos filed suit against appellees and others on March 5, 

2010, for claims arising from the sale of residential property. One law firm 

represented the Agents. On May 27, 2010, counsel for the Agents sent 

correspondence to the Borsellinos’ attorneys asking for mutually agreeable 

dates on any work day during two weeks in June to conduct the depositions of 

Dr. Samuel and Carol Borsellino. This correspondence went unanswered. 

As a result, the Agents’ counsel again sent a letter to the Borsellinos’ 

attorneys on June 14, 2010, requesting agreeable deposition dates and 

proposing June 25, 28, 29, or July 7 through 9 as possibilities. After 

receiving no response, on June 18, 2010, counsel for the Agents sent notice to 

the Borsellinos to appear for depositions on June 28, 2010. 
{¶ 3} The same day the notice was received, the Borsellinos’ attorneys 

canceled the depositions due to scheduling conflicts of the attorneys and 

advised that alternate dates would be provided. By June 29, 2010, the 

Agents’ counsel had received no dates from the Borsellinos and again sent a 

letter asking that the depositions be scheduled on one of eight suggested 

dates in July. No response to this letter was received, and the Agents’ 

counsel then sent an email on July 16, 2010, requesting deposition dates in 

July or August. After no dates were forwarded by the Borsellinos, on July 

20, 2010, the Agents’ counsel again sent notice to the Borsellinos to appear for 

depositions on August 17, 2010, and indicated the date would not be changed. 

 The day before the scheduled depositions, the Borsellinos’ attorneys 

attempted to cancel Dr. Borsellino’s deposition. The Agents’ counsel refused 

to acquiesce, and Carol’s deposition proceeded, but Dr. Borsellino failed to 

appear. 

{¶ 4} On August 26, 2010, appellees filed a joint motion for sanctions 

seeking $3,892.50 in costs for the Agents and $943.46 in costs for the Sellers. 

The trial court granted appellees’ motion on March 23, 2011, and awarded 

$2,000 and $943.46, respectively. The Borsellinos then dismissed their case 

without prejudice and filed both an appeal and a Civ.R. 60(B) motion for relief 

from judgment. The appeal was dismissed by this court as untimely. The 
Borsellinos filed the instant appeal from the trial court’s denial of their Civ.R. 

60(B) motion raising two errors.1

II. Law and Analysis 

A. Civ.R. 60(B) Is Not a Substitute For a Timely Appeal

{¶ 5} Here, the Borsellinos attempt to appeal from an order denying 

their motion for relief from judgment, and not from the order granting 

sanctions in favor of appellees. This is because their notice of appeal from 

the journal entry ordering sanctions was not timely filed and was dismissed 

by this court. “However, it has long been established that a Civ.R. 60(B) 

motion for relief from judgment may not be used as a substitute for a timely 

appeal.” Roberts v. Roberson, 8th Dist. App. No. 92141, 2009-Ohio-481, 2009 

WL 279809, ¶ 17. This holding flows from the Ohio Supreme Court’s 

decision in Doe v. Trumbull Cty. Children Serv. Bd., 28 Ohio St.3d 128, 131, 

502 N.E.2d 605 (1986). There, a party attempted to revive litigation after a 

final judgment was issued from which a direct appeal was not taken. After a 

perceived change in controlling case law, the party filed a Civ.R. 60(B) 

motion. The Ohio Supreme Court not only held that subsequent changes in 

 1

 The Borsellinos’ two assignments of error state: “The trial court erred when it failed to 

find that [Dr. Borsellino’s] failure to attend the deposition was substantially justified, or that the 

circumstances made the award of attorney’s fees unjust”; and even if the sanction was justified, “[t]he 

trial court erred when it awarded attorney’s fees to the [appellees] without competent credible 

evidence as to how those fees were incurred.”
controlling case law in unrelated matters are not proper grounds for relief 

from judgment, but also that “[a] party may not use a Civ.R. 60(B) motion as 

a substitute for a timely appeal.” Id. at paragraph two of the syllabus. 

{¶ 6} The Borsellinos are attempting to appeal alleged legal errors made 

by the trial court when it granted sanctions as a substitute for their 

dismissed appeal. This is improper. 

B. Award of Attorney Fees as Discovery Sanctions

{¶ 7} Even if this appeal were proper, the Borsellinos fail to argue how 

they satisfy any of the required elements of Civ.R. 60(B) necessary to show 

that the trial court abused its discretion in denying their motion. In fact, the 

Borsellinos’ brief fails to even mention Civ.R. 60(B). Both parties, as if the 

prior appeal was never dismissed, cite to Civ.R. 37(D) as governing law in this 

case controlling the standard of review. However, the proper standard the 

Borsellinos must meet is that which applies to an appeal from the denial of a 

Civ.R. 60(B) motion. The Borsellinos must successfully argue that the trial 

court abused its discretion in denying their motion because they 

demonstrated (1) that they possess a meritorious defense or claim to present 

if relief is granted; (2) they are entitled to relief under the provision argued in 

their motion, Civ.R. 60(B)(5); and (3) their motion was made within a 

reasonable time. GTE Automatic Elec. v. ARC Indus., 47 Ohio St.2d 146, 351 

N.E.2d 113 (1976), paragraph two of the syllabus. 
{¶ 8} The Borsellinos’ brief does not sufficiently identify a meritorious 

claim or defense or otherwise identify how it satisfied these requirements 

based on evidence in the record. The arguments attempting to show how the 

trial court abused its discretion in granting sanctions under Civ.R. 37(D) are 

unavailing. 

{¶ 9} Civ.R. 37(D) provides for attorney fees as a sanction, stating: 

If a party * * * fails (1) to appear before the officer who is to take 

his deposition, after being served with a proper notice[,]* * * the 

court shall require the party failing to 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. 

{¶ 10} The Borsellinos argue that Samuel’s failure to appear was 

justified because he is a neurosurgeon and his workload prevented him from 

attending the deposition. However, he did not apply for a protective order or 

otherwise make a record for this court that his schedule prevented his 

deposition from going forward. When parties cannot attend their scheduled 

deposition, it is not enough to send a message to opposing counsel the day 

before it is to begin. See Dafco, Inc. v. Reynolds, 9 Ohio App.3d 4, 5, 457 

N.E.2d 916 (10th Dist.1983), citing Al Barnett & Son, Inc. v. Outboard Marine 

Corp., 611 F.2d 32 (3d Cir.1979). “The method for obtaining an advance 

court determination to avoid the imposition of immediate sanctions is to move 
for a protective order, pursuant to Civ.R. 26(C), before the time for 

compliance occurs.” Id. 

{¶ 11} Nothing in the record, apart from a statement that Dr. Borsellino 

is one of only 3,600 neurosurgeons in the country and was working that day, 

demonstrates why his deposition should not have gone forward on August 17, 

2010. It had been scheduled for some time, and the Borsellinos took no 

action until the day before the deposition was to go forth. This was also the 

second time the deposition had been attempted after the Agents’ counsel had 

made ample efforts to secure an agreeable date. The Borsellinos had 

abundant opportunity to suggest agreeable dates and had a significant period 

of time within which to move for a protective order. They did neither. The 

trial court did not abuse its discretion in denying the Borsellinos’ Civ.R. 60(B) 

motion. They failed to show a meritorious claim or defense — a necessary 

element of such a motion. 

III. Conclusion

{¶ 12} An appeal from a Civ.R. 60(B) motion for relief from judgment 

should not be used as a substitute for a timely filed direct appeal. The 

Borsellinos’ failure to even mention Civ.R. 60(B) in their brief in light of their 

prior untimely appeal indicates that is precisely their intent. But, even if it 

was not, the Borsellinos fail to point to evidence in the record indicating that 

Dr. Borsellino was justified in not attending his properly scheduled 
deposition. Therefore, the trial court did not abuse its discretion in denying 

their motion for relief from judgment. 

Judgment affirmed. 

It is ordered that appellees recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said 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. 

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE 

SEAN C. GALLAGHER, J., and 

EILEEN A. GALLAGHER, J., CONCUR