[Cite as Rardin v. Salon Professional Academy, L.L.C., 2017-Ohio-410.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


Katherine Rardin                                          Court of Appeals No. WD-16-011

        Appellant                                         Trial Court No. CVF 1500517

v.

The Salon Professional Academy, LLC,
d/b/a The Summit Salon Academy                            DECISION AND JUDGMENT

        Appellee                                          Decided: February 3, 2017

                                                 *****

        James H. Anderson and Mark I. Jacobs, for appellant.

        Patricia A. Wise and Brian C. Kalas, for appellee.

                                                 *****

        JENSEN, P.J.

                                        I. Introduction

        {¶ 1} At issue herein is an interlocutory appeal filed by the plaintiff-appellant,

Katherine Rardin. The defendant-appellee is The Salon Professional Academy, LLC,

d/b/a The Summit Salon Academy. Appellant challenges a March 7, 2016 decision by
the Municipal Court of Perrysburg, Wood County, Ohio, that granted appellee’s motion

for sanctions.1 The court awarded “reasonable expenses incurred in securing compliance

with the January 29, 2016 Court order granting its motion to compel.”

       {¶ 2} For the reasons that follow, we find that the court did not abuse its discretion

in sanctioning appellant. We remand this case to the municipal court for further

proceedings on the merits.

                     II. Statement of Facts and Procedural History

       {¶ 3} In September of 2014, appellant enrolled at appellee’s salon academy for the

purpose of becoming licensed in the field of “managing esthetics.” The agreement

between the parties called for appellant to pay tuition and fees in exchange for appellee

agreeing to furnish all phases of the education and training required for certification in

the field.

       {¶ 4} In her complaint, appellant alleges that the quality of educational services

sharply declined by November of 2014. On April 28, 2015, appellant filed suit for breach

of contract and unjust enrichment, demanding $8,666 in damages.

       {¶ 5} Appellee denied the allegations and counterclaimed. It argued that, pursuant

to the withdrawal provision set forth in the agreement, appellant owed it $536.04.

1
  The March 7, 2016 order also denied appellant’s Civ.R. 60(B) motion for relief from
judgment and denied her motion for leave to file an answer instanter. As set forth in our
April 21, 2016 order, this court limited the appeal to the trial court’s award of sanctions
under Civ.R. 37. An order of contempt is final and appealable once the trial court makes
a finding of contempt and imposes a sanction. Smith v. Chester Twp. Bd. of Trustees, 60
Ohio St.2d 13, 396 N.E.2d 743 (1979). See also Fleenor v. Caudill, 4th Dist. Scioto No.
03CA2886, 2003-Ohio-6513, ¶ 17.




2.
       {¶ 6} This appeal is limited to the trial court’s decision to order appellant to pay

appellee its reasonable expenses incurred in securing compliance with the January 29,

2016 court order to compel discovery.

       {¶ 7} The discovery dispute began with appellee’s September 29, 2015 service of

requests for interrogatories, production of documents and admissions. Appellant

responded to the requests on October 21, 2015.

       {¶ 8} Appellee characterized the responses as insufficient. It requested, in two

successive emails, that appellant correct and supplement them. Among other issues,

appellee asked for clarification as to how the responses were enumerated, took issue with

a relevancy objection, and demanded greater detail as to the facts to which appellant’s

witnesses would testify.

       {¶ 9} Appellant responded to the requests. Appellee’s counsel maintained,

however, that the responses were “still insufficient” and, in a “last effort to resolve [the

matter] short of court intervention” requested that appellant provide further information.

       {¶ 10} On December 17, 2015, appellee filed a motion to compel appellant to

“provide full and complete responses to its discovery requests.”

       {¶ 11} During a January 29, 2016 pretrial conference, appellant’s counsel

indicated that he felt the discovery responses were adequate and complete. In any event,

the trial court granted the “unopposed motion of [appellee] to compel discovery.” It gave

appellant “ten (10) days from the date of this entry to comply with this Order.”




3.
       {¶ 12} Appellant’s counsel received the court’s order “on or about February 4,

2016.” Appellant met with her attorney for the purpose of supplementing the discovery

responses, which she then served on February 11, 2016 via facsimile. The responses

settled the dispute.

       {¶ 13} That same day, appellee filed a motion for sanctions, urging the court to

dismiss plaintiff’s complaint for noncompliance and to order appellant to pay appellee its

fees and expenses incurred in the preparation and filing of the motion to compel.

       {¶ 14} On March 7, 2016, the trial court granted appellee’s motion. It ordered

appellee’s counsel to “submit her invoice itemizing her reasonable expenses to the Court

and [appellant’s] counsel within ten (10) days from the date of this order. Upon receipt

of invoice, [appellant’s] counsel shall pay the balance within ten (10) days.”

       {¶ 15} Appellee sought $1,552.50 in reimbursable expenses.

       {¶ 16} Appellant appealed the judgment, and the trial court stayed the execution of

the judgment pending appeal. Appellant asserts one assignment of error for our review:

                         III. Appellant’s Assignment of Error

              The Trial Court abused its discretion in granting Defendant’s Motion

       for Sanctions.

                                  IV. Law and Analysis

       {¶ 17} Civ.R. 37 provides a mechanism by which discovery rules can be enforced.

The rule specifically authorizes a trial court to make “just” orders in response to

discovery violations, including the imposition of sanctions for a failure to comply with




4.
discovery orders. In particular, Civ.R. 37(A) authorizes and governs motions to compel

discovery; Civ.R. 37(B) authorizes sanctions against a party who fails to obey an order to

provide or permit discovery; Civ.R. 37(E) mandates that parties make reasonable efforts

to resolve discovery disputes before seeking judicial intervention. Bayes v. Toledo

Edison Co, 6th Dist. Lucas Nos. L-03-1177, L-03-1194, 2004-Ohio-5752, ¶ 90.

       {¶ 18} An appellate court will not reverse the trial court’s determination on

discovery sanctions unless there has been an abuse of discretion. Nakoff v. Fairview Gen.

Hosp., 75 Ohio St.3d 254, 662 N.E.2d 1 (1996), syllabus. Reversal is not warranted

unless the trial court has displayed an unreasonable, arbitrary, or unconscionable attitude.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 19} Appellant argues that she acted in good faith at all times. While she

concedes that the final supplement was “arguably untimely,” she argues that it did not

prejudice appellee in any way.

       {¶ 20} While the facts do not suggest that appellant or her counsel acted

frivolously, frivolous conduct is not a condition precedent to the imposition of sanctions

under Civ.R. 37. Shikner v. S & P Solutions, 8th Dist. Cuyahoga No. 86291, 2006-Ohio-

1339, ¶ 14.

       {¶ 21} The record reveals that appellee requested supplemental discovery

responses on three occasions, twice by letter and once via a motion to compel.

Appellant’s counsel took the position that his client had cured any defect with the

discovery responses, when in fact, she had not. Moreover, when the trial court ordered




5.
appellant to comply, it deferred sanctions until a later date, i.e. 10 days from the date of

this order. It was not until appellant failed to respond that it ordered sanctions.

Appellant concedes that her responses were untimely.

       {¶ 22} We may not simply substitute our judgment for that of the trial court. The

trial judge was in the best position to view the attorneys throughout the progress of the

case to determine whether sanctions were warranted. We cannot say that the trial court

abused its discretion in this matter. Bayes v. Toledo Edison Co, 6th Dist. Lucas Nos.

L-03-1177, L-03-1194, 2004-Ohio-5752, ¶ 9.

       {¶ 23} Finally, appellant points out that appellee did not comply with the trial

court’s order to provide an “invoice itemizing [its] reasonable expenses” incurred in

securing compliance with the order to compel. We agree. Upon remand, appellee shall

provide such itemization for the trial court to approve.

       {¶ 24} Appellant’s assignment of error is well-taken, in part. The trial court’s

decision to award sanctions is affirmed. The amount of expenses awarded is reversed

and this matter is remanded for further proceedings on the issue.

       {¶ 25} Judgment of the Perrysburg Municipal Court is affirmed, in part, and

reversed, in part. Pursuant to App.R. 24, costs are to be divided equally between the

parties.


                                                                 Judgment affirmed, in part,
                                                                      and reversed, in part.




6.
                                                        Rardin v. The Salon Professional
                                                        Academy, LLC
                                                        C.A. No. WD-16-011




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




7.
