[Cite as Fuline v. Green, 2012-Ohio-2749.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

AMY R. FULINE, et al.                                C.A. Nos.      25704
                                                                    25936
        Appellees

        v.
                                                     APPEAL FROM JUDGMENT
NATHAN R. GREEN                                      ENTERED IN THE
                                                     BARBERTON MUNICIPAL COURT
        Appellant                                    COUNTY OF SUMMIT, OHIO
                                                     CASE No.   08 CVE 1938

                                 DECISION AND JOURNAL ENTRY

Dated: June 20, 2012



        MOORE, Judge.

        {¶1}    Nathan Green has appealed the ruling of the Barberton Municipal Court dated

November 2, 2010.         Amy and Michael Fuline have appealed the ruling of the Barberton

Municipal Court dated December 9, 2010. For the reasons set forth below we affirm the trial

court’s judgment of December 9, 2010, and we reverse the judgment dated November 2, 2010

and remand this matter for further proceedings consistent with this opinion.

                                                I.

        {¶2}    In 2007, Nathan Green and Amy Fuline were involved in a low-speed motor

vehicle collision. Mr. Green conceded his fault in rear-ending Ms. Fuline’s vehicle. At the time

of the collision, Green carried an automotive insurance policy with Allstate.

        {¶3}    On August 5, 2008, Ms. Fuline and her husband brought suit against Green.

During discovery, the Fulines filed requests for admissions pursuant to Civ.R. 36.        Green

admitted some matters and denied some matters. After a jury trial, the jury returned a verdict in
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favor of Ms. Fuline in the amount of $7,131.31. Thereafter, the Fulines filed a motion for

prejudgment interest and issued certain discovery requests. Green filed motions for protective

orders to prevent discovery. The issue of prejudgment interest was settled by “concession.”

Subsequently, the Fulines sought attorney fees pursuant to Civ.R. 37(C), arguing that Green did

not properly respond to discovery under Civ.R. 36. In its journal entry dated November 2, 2010,

the trial court granted the Fulines’ request, and awarded $5,022.84 in attorney fees. Green

appealed the decision of the trial court in case number 25704.

       {¶4}    On the same date that Green filed his notice of appeal, the Fulines filed a motion

for sanctions pursuant R.C. 2323.51, contending that the defense engaged in certain frivolous

conduct. The trial court denied this motion in its journal entry dated December 9, 2010. The

Fulines appealed the denial of this request, and this Court dismissed the appeal for lack of a final

appealable order, as certain issues remained unresolved. After the trial court issued a subsequent

order resolving the remaining issues, the Fulines filed a notice of appeal in case number 25936.

This Court consolidated the cases.

                                                     II.

Case No. 25704

                                      ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
       ATTORNEY FEES TO THE FULINES.

       {¶5}    In his assignment of error, Green argues that the trial court erred in awarding the

Fulines sanctions pursuant to Civ.R. 37. We agree.

       {¶6}    The decision to impose sanctions pursuant to Civ.R. 37 is within the discretion of

the trial court, and this Court will not reverse the trial court’s decision absent an abuse of

discretion. Maurer v. Boyd, 9th Dist. No. 23818, 2008-Ohio-1384, ¶ 5, citing Millis Transfer,
                                               3


Inc. v. Z & Z Distrib. Co., 76 Ohio App.3d 628 (6th Dist.1991). However, whether the trial court

correctly applied the law to the facts of a case presents a question of law, which we review de

novo. Young v. Young, 9th Dist. No. 09CA0067, 2010-Ohio-3658, ¶ 17.

       {¶7}   Civ.R. 37(C) provides,

       If a party, after being served with a request for admission under Rule 36, fails to
       admit the genuineness of any documents or the truth of any matter as requested,
       and if the party requesting the admissions thereafter proves the genuineness of the
       document or the truth of the matter, he may apply to the court for an order
       requiring the other party to pay him the reasonable expenses incurred in making
       that proof, including reasonable attorney’s fees. Unless the request had been held
       objectionable under Rule 36(A) or the court finds that there was good reason for
       the failure to admit or that the admission sought was of no substantial importance,
       the order shall be made.

       {¶8}   Therefore, where a party has denied a request for admission, but the proof at trial

contradicts the denial, the court must award sanctions upon a Civ.R. 37 motion “unless the

request had been held objectionable under Civ.R. 36(A) or the court finds that there was good

reason for the failure to admit or that the admission sought was of no substantial importance * *

*.” Salem Med. Arts & Dev. Corp. v. Columbiana Cty. Bd. of Revision, 82 Ohio St.3d 193, 195-

196 (1998), quoting Civ.R. 37(C). Therefore, the denying party “runs no risk of sanctions * * *

if the matter is genuinely ‘in issue,’ since Civ.R. 37(C) precludes sanctions when there is ‘good

reason’ for the failure to admit.” Salem Med. Arts, 82 Ohio St.3d at 196; see also Maurer, 2008-

Ohio-1384, at ¶ 9, quoting Youssef v. Jones, 77 Ohio App.3d 500, 509 (6th Dist.1991).

       {¶9}    Here, the Fulines contended that Green improperly denied nine requests for

admissions, for which seven of these he offered a general denial. After hearing, the trial court

determined that “a general denial did not conform to the rule when [Green] failed to present any

evidence to justify the denial[.]” The trial court determined that the Fulines were entitled to

attorney fees in the amount of $5,022.84.
                                                4


       {¶10} However, the rule does not require the denying party “to present * * * evidence to

justify the denial” of a request for admission. Instead, if the matter denied is later proven, the

rule requires an order of reasonable attorney fees incurred in proving the issue, unless (1) the

request was held objectionable, (2) there was good reason for the denial, or (3) the issue was not

of substantial importance. Civ.R. 37(C), and Salem Med. Arts, 82 Ohio St.3d at 196.

       {¶11} Accordingly, we sustain Green’s assignment of error and remand this case for

further consideration on the Civ.R. 37 motion. The trial court will need to review the requests

for admissions in light of what the Fulines eventually proved. If the Fulines proved matters

denied by Green, the trial court “will then need to consider whether each matter denied was

genuinely in issue, using an objective standard of reasonableness” or whether the issues denied

were not of substantial importance. Salem Med. Arts, 82 Ohio St.3d at 196.

Case No. 25936

       {¶12} We note that, on June 3, 2011, Green filed with this Court a motion to dismiss the

Fulines’ appeal, arguing that they are attempting to appeal a judgment entry to which they had

agreed. We denied Green’s motion, but indicated that we may revisit this issue upon rendering a

decision. Upon review of the record, we cannot agree that the Fulines consented to the trial

court’s denial of their motion for sanctions. Accordingly, we reaffirm our previous decision

denying Green’s motion.

                                     ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [THE]
       FULINE[S’] MOTION FOR SANCTIONS FOR FRIVOLOUS CONDUCT.

       {¶13} In their assignment of error, the Fulines contend that the trial court erred by

denying their motion for sanctions pursuant to R.C. 2323.51(B)(1). We disagree.
                                                5


       {¶14} R.C. 2323.51(B)(1) provides in part, “at any time not more than thirty days after

the entry of final judgment in a civil action or appeal, any party adversely affected by frivolous

conduct may file a motion for an award of court costs, reasonable attorney’s fees, and other

reasonable expenses incurred in connection with the civil action or appeal.”                 R.C.

2323.51(A)(2)(a) defines “frivolous conduct,” as conduct by a party to the civil action or the

party’s counsel of record which “obviously serves merely to harass or maliciously injure another

party to the civil action,” or “is not warranted under existing law, cannot be supported by a good

faith argument for an extension, modification, or reversal of existing law, or cannot be supported

by a good faith argument for the establishment of new law.”

       {¶15} An award of sanctions under R.C. 2323.51 is discretionary, and the trial court’s

decision will not be reversed absent an abuse of discretion. See Wrinch v. Miller, 9th Dist. No.

25562, 2011-Ohio-5891, ¶ 5. An “abuse of discretion” connotes that the trial court’s decision

was “unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983).

       {¶16} Here, we note that the Fulines moved for sanctions against Allstate and its

retained counsel. Although Allstate insured the defendant, and defense counsel may have been

hired by Allstate to represent Green, Allstate was not a party to this action. However, it is

apparent from the motion for sanctions that the Fulines were in actuality alleging frivolous

conduct on the part of Green’s defense counsel. On appeal, the Fulines argue that their motion

for sanctions should have been granted because the defense engaged in frivolous conduct

regarding discovery requests pertinent to prejudgment interest and regarding the filing of a

motion for judgment notwithstanding the verdict. We will examine these issues separately.
                                                6


Prejudgment Interest

       {¶17} On June 15, 2010, the Fulines filed a motion seeking prejudgment interest,

arguing that Green did not make a good faith effort to settle the case. The Fulines then requested

Allstate’s insurance claim file through a request for production of documents directed to Green

and through a notice of deposition served upon the claims adjuster at Allstate. In response,

Green filed a motion for a protective order, arguing that the claims file was not discoverable and

that the claims adjuster was not properly served with a subpoena. The Fulines then attempted to

serve the claims adjuster with a subpoena duces tecum requiring her to produce the claims file

and filed a return of service for the subpoena. Green filed an additional motion for a protective

order, incorporating his previous motion for a protective order and arguing that the adjuster

created the file to assist in the defense of the lawsuit pursuant to Civ.R. 26(C) and that she had

not been served with the subpoena.

       {¶18} At a hearing on the pending motions held on October 12, 2010, the parties advised

the trial court that the issue of prejudgment interest had been resolved, and the motions

pertaining to the prejudgment interest discovery were moot. However, on November 24, 2010,

the Fulines filed a motion for sanctions, arguing that the law was clear that the claims file was

discoverable, and Green’s motions for a protective order were not warranted under existing law

or supported by a good faith argument for an extension, modification, or reversal of existing law,

and thus amounted to frivolous conduct.

       {¶19} Based upon the parties’ agreement that the matter of discoverability of the claims

file and proper service of the subpoena was moot, the parties did not address the merits of these

arguments at the October 12, 2010 hearing on pending motions, and the parties advanced no
                                                 7


evidence in support of their positions on these issues. Neither did the trial court articulate an

analysis of these issues in its entry; rather the court summarily denied the motion for sanctions.

       {¶20} A nonparty need not appear in a matter absent a properly served subpoena. See

State ex re. The V. Cos. v. Marshal, 81 Ohio St.3d 467, 469 (1998). Both of Green’s motions for

a protective order argue that the Allstate claims adjuster had not been properly served with a

subpoena. In his first motion for a protective order filed in response to the notice of deposition,

Green argued that “[t]he deponent is a nonparty witness who has not been served with a

subpoena. This court has not acquired personal jurisdiction over the witness, and the deposition

has been noticed to occur at the office of the plaintiff’s lawyer, which is outside the territorial

jurisdiction of this court.” In his second motion for a protective order filed in response to the

subpoena duces tecum issued to the claims adjuster, in regard to service of the subpoena, Green

argued only that the claims adjuster had “not been served with any subpoena.” As the parties

had previously agreed that this issue was moot, we cannot discern from the record the respects in

which Green claimed that service of the subpoena had not been perfected. Accordingly, we

cannot say that any such argument was frivolous. Therefore, to the extent that the Fulines’

motion for sanctions was based upon Green’s conduct defending against discovery of the claims

file from the claims adjuster, we cannot say that the trial court abused its discretion in denying

the motion for sanctions. To the extent that the Fulines rely on this argument in support of their

assignment of error, it is overruled.

Motion for Judgment Notwithstanding the Verdict

       {¶21} On June 18, 2010, Green filed a motion for judgment notwithstanding the verdict,

requesting the trial court to reduce the judgment based upon an alleged subrogation claim and

requesting that costs be taxed to Mr. Fuline. In regard to the subrogation claim, Green requested
                                                 8


the trial court to reduce the verdict by $2,048.31, representing the amount of Ms. Fuline’s

medical bills that were paid by Medical Mutual of Ohio. Green argued that paying this amount

to Ms. Fuline would result in a windfall to her and expose Green to potential liability to Medical

Mutual for disregarding a known subrogation claim. Green argued that the Fulines had provided

proof of the subrogation claim at trial.

       {¶22} In one of the Fulines’ trial exhibits, the Fulines represented that Medical Mutual

had paid $2,048.31 toward the medical bills at issue. During the trial, Ms. Fuline testified that

the subrogation provision in her contract with Medical Mutual would require her to repay those

medical bills from any money recouped by her from the party at fault. Despite the evidence as to

subrogation, the Fulines responded that Green was not put on formal notice of a subrogation lien,

and thus he was required to submit the full judgment amount to Ms. Fuline. However, at the

October 12, 2010 hearing, counsel for the Fulines indicated that the motion for judgment

notwithstanding the verdict was moot. Thereafter, in their motion for sanctions, the Fulines

argued that Green’s filing of the motion for judgment notwithstanding the verdict constituted

frivolous conduct because it was based upon a nonexistent subrogation lien. The trial court

denied the motion for sanctions without hearing. Therefore, the record was undeveloped as to

any existing subrogation claim or lien. Clearly, the trial court was in the best position to observe

the conduct of the parties during the proceedings in order to determine whether the filing of

Green’s motion for judgment notwithstanding the verdict was frivolous. See Wrinch, 2011-Ohio-

5891, at ¶ 5. Under the facts of this case, we cannot say that the trial court’s denial of the motion

for sanctions was an abuse of discretion insofar as sanctions were requested based upon the filing

of the motion for judgment notwithstanding the verdict on the issue of subrogation.
                                                 9


       {¶23} To the extent that the Fulines argue that the trial court should have sanctioned the

defense due to its alleged frivolous conduct in arguing that Mr. Fuline should be taxed the costs

of the action, this argument was not raised in the Fulines’ motion for sanctions. Therefore, we

will not address this argument for the first time on appeal. See State v. Allen, 9th Dist. No.

25349, 2012-Ohio-249, ¶ 29. Accordingly, to the extent that the Fulines argue that the trial court

should have imposed sanctions upon the defense for its conduct in filing the motion for judgment

notwithstanding the verdict, the Fulines’ assignment of error is overruled.

                                                III.

       {¶24} Accordingly, Green’s assignment of error as set forth in Case No. 25704 is

sustained. The Fulines’ assignment of error as set forth in Case No. 25936 is overruled. The

trial court’s judgment of November 2, 2010 is reversed, and this cause is remanded to the trial

court for further proceedings consistent with this opinion.        The trial court’s judgment of

December 9, 2010 is affirmed.

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




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Barberton

Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                10


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Amy and Michael Fuline.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, P. J.
BELFANCE, J.
CONCUR.

APPEARANCES:

ADAM E. CARR, Attorney at Law, for Appellant.

STEPHEN P. GRIFFIN and MICHAEL J. KAHLENBERG, Attorneys at Law, for Appellees.
