[Cite as Jacobson v. Jonathan Paul Eyewear, 2013-Ohio-3570.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

BRUCE JACOBSON, et al., : O P I N I O N 

 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 PlaintiffsAppellants). 

Christopher W. St. Marie, Michael B. Pascoe, and Daniel A. DeMarco, Hahn Loeser & 

Parks, LLP, 200 Public Square, Suite 2800, Cleveland, OH 44114 (For DefendantAppellee). 

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 
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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 
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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 
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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, 2012-Ohio-3021. 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: 
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{¶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., 75 Ohio St.3d 254 (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, 2010-Ohio-1900, ¶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. 
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{¶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 
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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 
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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, 6 

Ohio St.3d 455, 458 (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. 
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{¶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, 2012-Ohio-3163, ¶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.