[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 

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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 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, 
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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 
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$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 
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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 unconscionable 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 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., 114 Ohio App.3d 20, 28, 682 N.E.2d 724 (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, 

2003-Ohio-6900. 
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{¶ 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, 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 expended by Yellowbook’s counsel. The purpose of mandating an award 
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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. 

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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)