[Cite as Yellowbook, Inc. v. L. Patrick Mulligan & Assocs. , 2014-Ohio-4698.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY YELLOWBOOK, INC., fka YELLOWBOOK SALES & DISTRIBUTION CO., INC. Plaintiff-Appellee

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

. . . . . . . . . . . O P I N I O N Rendered on the 24th da y 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 pa y 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 sancti ons was unjust, rendering the trial court’s order an abuse of discretion. {¶ 2} We conclude that the tria l court did not abuse its di scretion, and pr operly 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. Mo re than two years of contested litigation proceedings followed, including numerous discovery requests, motions, hearings and rulings. Pertinent to this appeal, it is undisput ed that Yellowbook served both defendants with several discovery re quests on March 7, 2013. After Yello wbook filed its first Motion to Compel, Mulligan LPA, responded to the disc overy requests. However, Mulligan did not respond to the Interrogatories and Request fo r Production of Documents directed to him personally until after Yellowbook f iled a second motion to compel discovery. The trial court granted Yellowbook’s motion to compel, which in cluded an order grantin g Yellowbook’s request for attorney fees. After Yellowbook submitted an affidavit setting forth a description of the time expended and the hourly rate char ged by Yellowbook’s counsel for th e legal services rendered in connection with the discovery dis pute, 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 F ees 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 reque st for attorney fees, as a disc overy 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 sub mitted under Rule 34, after prope r service of the request, the court in which the action is pendi ng on motion and notice may make such orders in regard to the failure as are ju st, 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 , 75 Ohio St. 3d 254, 662 N.E. 2d 1 (1996), syllabus . A trial court has broad discretion to fashion an appropriate sanction for a party’s failure to comply with the discovery rules. Id. Unless the trial court’s decision is arbitrary, unreasonable or unconsciona ble the court has not abused its discretion. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 8} Civ. R. 37 specifies a wide range of sa nction 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 ci rcumstances would make an award unjust.” Soloman v. Excel Marketing, Inc ., 114 Ohio App.3d 20, 28, 682 N.E.2d 724 (2d. Dist.1996). When noncompliance with the discovery ru les is established, a court abus es 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, 2003-Ohio-6900. 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 comp el was granted on November 15, 2013, Mulligan had not yet provided answers to the Interrogatori es and Request for Pr oduction of Documents submitted to him on March 7, 2013 by Yellowbook. Mullig an suggests that it is “unjust” to grant sanctions when the corporate defendant, Mulligan LPA, did comply with the discovery request directed to both Defendants, notw ithstanding the fact that the responses of Mulligan LPA were forwarded to Yellowbook on June 28, 2013, nearly f our months after they were originally propounded. Mulligan admits that although there we re differences in the discovery requests made to the individual defendant and the corporate defendant, Mu lligan’s failure to respond to the discovery request directed to the individual was “an oversig ht on the part of Defendant.” Dkt. 42, p.2. The trial court considered this ex cuse, 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 receive d 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 co mpensate the moving party for its reasonable expenses in pursuing a justifiable order of sanctions. Bellamy v. Montgomery, 188 Ohio App.3d 76, 2010-Ohio-2724, 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 expende d 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 requestis 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 awarde d only the amount that was reas onably 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 b een 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)