Civil Appeal from the Lake County Court of Common Pleas, Case No. 09 CV 003340.
Joseph R. Compoli, Jr., 612 East 185th Street, Cleveland, OH 44119; and James R. Goodluck, 3517 St. Albans Road, Cleveland Heights, OH 44121 (For Plaintiffs-Appellants).
Christopher W. St. Marie, Michael B. Pascoe, and Daniel A. DeMarco, Hahn Loeser & Parks, LLP, 200 Public Square, Suite 2800, Cleveland, OH 44114 (For Defendant-Appellee).
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 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 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 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 ...