[Cite as Thallman v. Thallman, 2016-Ohio-992.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                              SENECA COUNTY




ESTATE OF WAYNE THALLMAN, ET AL.,

        PLAINTIFFS-APPELLANTS,                         CASE NO. 13-15-36

        v.

DANIEL H. THALLMAN, ET AL.,                            OPINION

        DEFENDANTS-APPELLEES.




                 Appeal from Seneca County Common Pleas Court
                                Probate Division
                           Trial Court No. 20144004A

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: March 14, 2016




APPEARANCES:

        John T. Barga for Appellants

        Zachary E. Fowler for Appellees
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SHAW, P.J.

       {¶1} Plaintiffs-appellants Estate of Wayne Thallman, Tiffani Reiter,

Stephani Underwood, and Kimberli Wurts (collectively “appellants”) bring this

appeal from the September 23, 2014 judgment of the Seneca County Common

Pleas Court, Probate Division, denying appellants’ motion to compel discovery

filed against defendants-appellees Daniel Thallman, Martin Thallman, and Janet

Quarrie (collectively “appellees”). In addition, appellants also appeal from the

September 29, 2015 judgment awarding appellees attorney’s fees and expenses

pursuant to Civ.R. 37(A)(4) for appellees’ successful defense of the motion to

compel.

                      Relevant Facts and Procedural History

      {¶2} On June 13, 2014, appellants filed a “Complaint for Accountings [of

the] Claudine A. Thallman Trust [and the] Herval L. Thallman Trust.” (Doc. No.

1). Claudine Thallman and Herval Thallman were married and had five children

together: Martin Thallman, Daniel Thallman, Janet Quarrie, Wayne Thallman and

James Thallman. In 1981, Claudine Thallman executed a “trust agreement.” The

trust agreement indicated that upon Claudine’s death the trust would provide for

Herval during his lifetime, and upon Herval’s death, the trust would terminate and

all properties would be paid over to Claudine and Herval’s five children “and any

afterborn children, share and share alike, per stirpes.” (Id. at Ex. 1). On or about

March 2, 1983, Claudine died and she was survived by Herval.

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        {¶3} On February 9, 2004, Herval Thallman created a trust that would

benefit him during his lifetime and upon his death the trust would terminate and all

trust properties would be paid over to Herval’s children. The trust indicated that

four of Herval’s children would each receive a 1/5th share of the trust upon

termination. The fifth child, James Thallman, predeceased Herval, so Herval

indicated that the remaining 1/5th share of Herval’s trust, which would have been

James’s share, would go to three of James’s children, who are three of the

appellants in this case, namely, Stephani Underwood, Kimberli Thallman (nka

Wurts), and Tiffani Thallman (nka Reiter).1

        {¶4} The primary asset of the Claudine Thallman and Herval Thallman

trusts was farmland in Bloom Township, Seneca County, Ohio.

        {¶5} On or about August 24, 2011, appellees began serving as trustees of

both Herval and Claudine’s trusts and they continued to serve in that capacity as

trustees until Herval died in January of 2014.

        {¶6} On June 13, 2014, appellants brought this action against the appellees

seeking an accounting of both the Claudine Thallman and Herval Thallman Trusts.

Amongst the relief sought by the appellants was for the appellees to provide a


1
 Thus upon the death of Herval Thallman and the termination of both trusts, appellants Underwood, Wurts,
and Reiter were each entitled to a 1/15th distribution of the Herval Thallman trust assets, and a 1/25th
distribution of the Claudine Thallman trust assets. The difference between the two distributions was that
Claudine Thallman’s trust did not specifically exclude James Thallman’s two children from James’s first
marriage as distributes upon the termination of Claudine’s trust whereas Herval’s trust did specifically
exclude James’s two children from his first marriage, giving Underwood, Wurts, and Reiter a slightly
greater share in the distribution of Herval’s trust. Appellant Wayne Thallman, or his estate rather, is
entitled to a 1/5th share of the distribution of both trusts.

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“[r]eport of the Trust property, liabilities, receipts and disbursements including the

source and amount of the Trustee’s compensation and a listing of the Trust assets

and their respective market values * * * for 2011, 2012, 2013, and 2014[.]” (Doc.

No. 1).

        {¶7} On July 10, 2014, appellees filed their answer and asserted a number

of affirmative defenses. (Doc. No. 11).

        {¶8} The case then proceeded to discovery. On July 24, 2014, the trial

court held a case management conference concerning, inter alia, discovery. At

that time appellees indicated to the trial court “that a packet of documents

detailing the financial activities of the Trusts, since [Herval’s’] death,” had been

provided to appellants’ attorney. (Doc. No. 16).

        {¶9} On July 25, 2014, appellees executed releases authorizing appellants

to directly contact H&R Block to obtain the tax records of both trusts dating back

to 2011.2 In addition, appellees executed releases authorizing appellants to obtain

“any/all information requested on accounts” owned by the trusts dating back to

2011 from First Merit Corporation, where the trusts’ banking was done.

        {¶10} On August 27, 2014, appellees filed a number of notices indicating

that they had served their responses to appellants’ interrogatories and appellants’

request for production of documents. (Doc. Nos. 21-24).



2
 The releases were actually attached to documents later filed in the record. However, they were dated July
25, 2014, therefore we put them in their appropriate chronological context here.

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       {¶11} On August 29, 2014, appellees filed a “motion to dismiss for failure

to state a claim and, in the alternative, motion for summary judgment.” (Doc. No.

30).   In the motion, appellees contended that the appellants made numerous

requests for various documents both formally and informally and that appellees

had provided the documents that they were “required to provide under law.” (Id.)

Appellees asserted that appellants filed their complaint for accounting in June of

2014, but were seeking an accounting of the trusts for the years 2011 through

2014. According to appellees, appellants were not even entitled to information

from 2011-2014 under R.C. 5808.13 because appellants were not “current

beneficiaries” of the trusts during those years. (Id.) The relevant statute referred

to by appellees to support their position, R.C. 5808.13, reads, in pertinent part,

       (C) A trustee of a trust that has a fiscal year ending on or after
       January 1, 2007, shall send to the current beneficiaries, and to
       other beneficiaries who request it, at least annually and at the
       termination of the trust, a report of the trust property, liabilities,
       receipts, and disbursements, including the source and amount of
       the trustee’s compensation, a listing of the trust assets, and, if
       feasible, the trust assets' respective market values. * * *

       {¶12} Appellees also contended that regardless of whether they were

required to provide information to appellants under statute, they had “provided

voluminous documents to [appellants] to satisfy [R.C. 5808.13]” and that they had

provided releases and authorization for appellants to obtain any other pertinent

documentation. (Doc. No. 52).



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        {¶13} On September 8, 2014, another pretrial conference was held. At the

hearing the trial court indicated that it heard from the parties regarding the status

of discovery. (Doc. No. 38). The trial court then filed a judgment entry instituting

a briefing schedule for appellants to file a motion to compel and also for appellants

to file a response to appellees’ “motion to dismiss/motion for summary judgment.”

(Id.)

        {¶14} On September 10, 2014, appellants filed a “motion to compel

discovery.” In the motion the appellants sought to compel appellees to provide

more thorough answers to interrogatories and to provide more financial

documentation, particularly as it related to the appellees’ administration of the

trusts from when appellees became trustees in 2011 to the death of Herval

Thallman in 2014. The motion and accompanying memorandum consisted of

approximately 14 pages and it contained 18 exhibits totaling in excess of 130

pages of material ranging from copies of checks, to hand-written notes and email

correspondence. (Doc. No. 37).

        {¶15} On September 12, 2014, appellants filed a supplement to their

motion to compel, arguing that R.C. 5808.13 applied not only to current

beneficiaries but also to “other beneficiaries” who request information. (Doc. No.

39).    Appellants argued that the statutory definitions of “other beneficiaries”

included them even prior to Herval’s death, and that they were therefore entitled to

more information. (Doc. No. 39).

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       {¶16} On September 17, 2014, appellees filed their response to appellants’

motion to compel, seeking for the trial court to deny the motion. Appellants

contended that they had provided all documents in their possession and, in the

alternative, that appellees were not entitled to the documentation regardless. In

addition, appellees requested that the trial court order appellants to pay the

reasonable expenses and attorney’s fees incurred as a result of defending the

motion to compel as provided in Civ.R. 37(A)(4).

       {¶17} Also on September 17, 2014, appellees filed a motion to strike

appellants’ motion to compel and the supplement to that motion, pursuant to

Civ.R. 11. Appellees contended that the motion to compel “was not properly

supported on good ground.” (Doc. No. 41). In addition, appellees filed a motion

for a protective order seeking that discovery be limited to the trust property,

activity, and documentation since Herval’s death on January 14, 2014. (Doc. No.

42).

       {¶18} On September 19, 2014, appellants filed a brief in opposition to

appellees’ motion to strike and motion for a protective order. (Doc. No. 43).

       {¶19} On September 22, 2014, appellants filed a brief in opposition to

appellees’ motion to dismiss and for summary judgment in the alternative. (Doc.

No. 45).

       {¶20} On September 23, 2014, the trial court filed its judgment entry

determining appellants’ motion to compel discovery. In the judgment entry, the

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trial court summarized the arguments of the parties and made factual findings,

indicating that appellants

       do not contend any failure to respond to Discovery but rather
       seek an Order requiring supplementation of prior responses.
       The [appellees] have stated that they have provided all the
       relevant documents in their possession. [Appellees], without
       waving their objections to [appellants] discovery requests,
       executed a release and authorization in favor of [appellants] * *
       * allowing them to directly contact the bank and investment firm
       exclusively used by the Trusts.

(Doc. No. 48).

       {¶21} The trial court then specified that the primary issue to be determined

for the motion to compel was “whether there is a right to demand records via

Discovery that predate the date the [appellants] became beneficiaries.” (Doc. No.

48). In analyzing the issue, the trial court stated that it was “undisputed” that the

appellants did not become beneficiaries of the trusts until Herval’s death on

January 14, 2014, and that it was undisputed that appellants did not request

information regarding the trusts until after Herval’s death. The trial court stated

that appellants “became ‘current beneficiaries’ of both trusts in January 2014,

when Hervall Thallman died.” (Id.) Based on this determination, the trial court

stated that appellants were seeking “to require [appellees] to provide information

through Interrogatory and Production of Documents outside of the date of

responsibility as Trustees, that being January 14, 2014.” (Id.)




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       {¶22} The trial court then continued by stating that there was no showing

that appellees failed to provide supplemental discovery for any acts of the trustees

since January 14, 2014, or that the requested subject matter was relevant to the

litigation. Based on its analysis, the trial court denied appellants’ motion to

compel and granted appellees’ protective order limiting discovery to trust

documentation since January 14, 2014.

       {¶23} On October 1, 2014, appellees filed for a motion for award of

attorney’s fees pursuant to Civ.R. 37(A)(4), which provides that the prevailing

party in a motion to compel “shall” receive expenses and attorney’s fees unless the

court finds, after a hearing, that the motion to compel was substantially justified.

(Doc. No. 49); Civ.R. 37(A)(4). Appellees indicated that at the time they filed for

their award of attorney’s fees they had incurred $3,452.50 defending the motion to

compel.

       {¶24} Also on October 1, 2014, appellants filed a motion for leave to file an

amended complaint instanter, which alleged, in addition to the original allegations,

that appellees breached their fiduciary duties, that appellees willfully, wantonly,

and/or negligently breached the duties of fairness, loyalty, impartiality, and care

owed to the appellees, and that appellees “maliciously interfered with [appellants’]

expectancies of inheritance by mismanagement and conversion.” (Doc. No. 50).




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           {¶25} On October 6, 2014, the trial court filed an entry indicating that it

had held oral arguments on the pending dispositive motions on October 1, 2014.3

The trial court stated that the parties also engaged in settlement discussions and

that an agreement had been reached to stay all pending motions. (Doc. No. 51).

The entry indicated that as part of the agreement, appellees were going to provide

appellants with additional releases so appellants could further investigate

appellees’ actions related to the trusts. (Id.)

           {¶26} On October 24, 2014, appellees filed a motion to strike appellants’

motion for leave to file an amended complaint. (Doc. No. 52). Appellees argued

that appellants were “ ‘fishing’ for more information in an attempt to come up

with possible causes of action where none exist.” (Id.)

           {¶27} Also on October 24, 2014, appellees filed a document purportedly

summarizing the agreement that had been made on the record at the October 1,

2014 hearing. Appellees indicated that the agreement was that appellants would

utilize the releases that had been provided by the appellees, including new releases

that would be executed related to insurance policies from 2011-2014, to

investigate on their own time, and that if the appellants did not find additional

information indicating misconduct greater than $500 after a review of those

documents, appellants would dismiss their action with prejudice. (Doc. No. 53).




3
    No transcript of this hearing was produced.

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       {¶28} Also on October 24, 2014, appellees filed a motion for judgment on

the pleadings. (Doc. No. 54).

       {¶29} On October 30, 2014, appellants filed an “omnibus” response to

appellees’ motions made on October 24, 2014. Appellants stated that appellees

withdrew the discovery authority they granted to the appellees, that appellees

improperly disclosed confidential discussions between counsel to the court, and

that dismissal of the case was not appropriate. (Doc. No. 60).

       {¶30} On October 30, 2014, appellants filed a voluntary “Notice of

Dismissal” pursuant to Civil Rule 41(A)(1), dismissing the action against

appellees in its entirety without prejudice. (Doc. No. 62).

       {¶31} On November 3, 2014, the trial court filed a judgment entry

acknowledging appellants’ voluntary dismissal and stating that appellants’ motion

for award of attorney’s fees pursuant to Civ.R. 37(A)(4) was still outstanding as a

collateral matter.   However, the trial court stated that appellants’ voluntary

dismissal rendered all other non-collateral matters moot. (Doc. No. 63).

       {¶32} On November 13, 2014, appellants filed a response to appellees’

motion for award of attorney’s fees contending, inter alia, that the appellants’

voluntary dismissal rendered the trial court without jurisdiction to consider the

matter of sanctions and attorney’s fees for discovery violations. (Doc. No. 64).




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           {¶33} On November 14, 2014, appellants filed a notice of appeal to this

court, indicating that appellants wished to appeal the decision made by the trial

court in the September 23, 2014, judgment entry.4 (Doc. No. 67).

           {¶34} On December 9, 2014, this Court dismissed appellants’ first appeal.

This Court stated that appellants had voluntarily dismissed all their claims in this

action. The only outstanding issue was appellees’ motion for attorney’s fees.

Thus this Court determined there was no timely appeal filed from any final

judgment.          Appellants subsequently filed for reconsideration of this Court’s

determination, and that reconsideration motion was also denied by this Court.

           {¶35} On February 4, 2015, the trial court held a case management

conference following this Court’s dismissal of appellants’ first appeal. At that

conference, the judge presiding over the case indicated that his son and the son of

one of appellees’ attorneys were scheduled “to be playing on a 5th grade AAU

basketball team together in the Spring of 2015 starting in March” and that both the

judge and appellees’ attorney had been asked to help coach the team. (Doc. No.

77).       The trial court judge then recused himself due to the “potential future

appearance of impropriety.” (Id.) Common Pleas Court Judge Steven Shuff was

then assigned to preside over the case.

           {¶36} On April 16, 2015, the trial court held a hearing on the motion for

attorney’s fees and expenses filed pursuant to Civ.R. 37(A)(4). At the hearing

4
    Appellants also attempted to appeal another issue from a prior judgment entry not related to this appeal.

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appellees called attorney James S. Nordholt, Jr., who was classified as an expert in

attorney’s fees in the relative area of Ohio. Nordholt gave testimony as to the fees

incurred by the appellees, their reasonableness, and the reasonableness of the

amount of time spent on what was prepared.          Nordholt’s testimony was not

concluded by the end of the hearing so the hearing was continued to a second day,

which was scheduled weeks later.

       {¶37} Prior to the second day of the hearing on attorney’s fees, appellees

filed a supplement to their motion for award of attorney’s fees contending that

they had incurred additional fees at the prior hearing, making the total amount of

fees and expenses that the appellees had incurred as a result of the motion to

compel $9,875.75. In addition, appellees also argued for an award of sanctions

against appellants pursuant to Civ.R. 11 and for a determination that appellants

had engaged in frivolous conduct pursuant to R.C. 2323.51. Appellees argued that

the trial court should determine that the case had been wholly frivolous. Appellees

contended that the trial court should award appellees their attorney’s fees in their

entirety for this action, which amounted to over $30,000.

       {¶38} On May 6, 2015, the hearing on attorney’s fees resumed and

Nordholt’s testimony was concluded. The trial court allowed each side to present

closing arguments and each side was also permitted to submit closing briefs

related both to Civ.R. 37(A)(4) sanctions and the newly made frivolous conduct

allegations. Both appellants and appellees filed closing briefs.

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         {¶39} On September 29, 2015, the trial court filed its final judgment entry

on the matter. In its entry, the trial court determined that appellants did not meet

their burden to establish that their motion to compel was substantially justified.

Therefore the trial court awarded appellees attorney’s fees and expenses in the

amount of $9,875.75 for sanctions against appellants pursuant to Civ.R. 37(A)(4).

The trial court reasoned similar to the original probate judge that appellants “did

not become beneficiaries until the death of Herval Thallman, on January 14,

2014.” (Doc. No. 89). Based on this, the trial court indicated that appellees had

“no duty to provide information related to the trust * * * prior to that date.” (Id.)

The trial court also determined that appellees had readily produced relevant

information and thus the motion to compel was not substantially justified. (Id.)

Finally, the trial court determined that appellees did not timely file their request

for frivolous conduct and Civ.R. 11 sanctions in this matter as they did not file the

request within 30 days of appellants’ voluntary dismissal.5 Therefore appellees’

request for sanctions on that later-filed motion requesting a finding of frivolous

conduct and appellees’ request for attorney’s fees for the entire case on that basis,

was overruled.




5
  We note that while R.C. 2323.51(B)(1) explicitly contains a thirty day time limit, Civ.R. 11 “sets forth no
time frame for filing a motion for sanctions.” Bergman v. Genoa Banking Co., 6th Dist. Ottawa No. OT-
14-019, 2015-Ohio-2797, ¶ 22. However, some courts have taken the position that a thirty day time limit
should be “inferred for Civ.R. 11 sanctions[.]” Zunshine v. Cott, 10th Dist. No. 07AP-764, 2008-Ohio-
2298, ¶ 21. Regardless, appellees did not file a cross-appeal on this issue and we will not further address it.

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      {¶40} Appellants now bring this appeal from the September 23, 2014

judgment denying their motion to compel, and the September 29, 2015 judgment

awarding appellees attorney’s fees pursuant to Civ.R. 37(A)(4). Appellants assert

the following assignment of error for our review.

                  ASSIGNMENT OF ERROR 1
      THE TRIAL COURT MISINTERPRETED THE FACTS,
      MISAPPLIED THE LAW, COMMITTED PLAIN ERROR
      AND ABUSED ITS DISCRETION WHEN IT DENIED THE
      PLAINTIFFS’ MOTION TO COMPEL DISCOVERY AND
      GRANTED DEFENDANTS’ MOTION FOR PROTECTIVE
      ORDER.

                  ASSIGNMENT OF ERROR 2
      THE TRIAL COURT MISINTERPRETED THE FACTS,
      MISAPPLIED THE LAW, COMMITTED PLAIN ERROR
      AND ABUSED ITS DISCRETION WHEN IT AWARDED
      ATTORNEY FEES PURSUANT TO CIVIL RULE 37(A)(4).

                            First Assignment of Error

      {¶41} In appellants’ first assignment of error they contend that the trial

court erred by denying their motion to compel discovery and that it also erred by

granting appellees’ motion for a protective order.      We find that appellants’

arguments are rendered moot by their voluntary dismissal of their case.

      {¶42} In this case appellants filed suit against the appellees, proceeded

through discovery and eventually filed a motion to compel discovery. Appellants

lost that motion to compel, and ultimately voluntarily dismissed their case against

appellees without prejudice pursuant to Civ.R. 41(A). Appellants now ask this

Court to reverse the decision on the motion to compel made by the trial court

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where the case and issues are no longer pending due to the voluntary dismissal.

Even if we agreed with the appellants—and, to be clear, we are not saying that we

agree with appellants as we are not deciding the merits of the matter—there would

be no remedy this Court could offer to the appellants because of their voluntary

dismissal. Only the collateral matter of sanctions remained pending following

appellants’ voluntary dismissal.6                  Thus for these reasons appellants’ first

assignment of error is rendered moot and we will not further address it.7

                                    Second Assignment of Error

         {¶43} In appellants’ second assignment of error, they argue that the trial

court erred in awarding the appellees attorney’s fees and expenses pursuant to

Civ.R. 37(A)(4). Specifically, appellants contend that the trial court improperly

relied on the previous judge’s ruling in denying the motion to compel, that the


6
   We note that appellants repeatedly argued to the trial court, and they still maintain to this Court, that
Civ.R. 37(A)(4) sanctions are not a collateral matter and thus the trial court should not have addressed the
sanctions after appellants’ voluntary dismissal of the underlying action. First, that is legally inaccurate. An
award of Civ.R. 37(A)(4) attorney’s fees and expenses is described as an award for sanctions. Heimberger
v. Zeal Hotel Group, Ltd., 10th Dist. Franklin No. 15AP-99, 2015-Ohio-3845, ¶ 53; Wilkins v. Sha’ste Inc.,
8th Dist. Cuyahoga No. 99167, 2013-Ohio-3527, ¶ 9. “A proceeding for sanctions is ancillary to the
actions before the trial court.” Blackwell v. Allstate Ins. Co., 8th Dist. Cuyahoga No. 80485, 2003-Ohio-
1823, ¶ 35; see also ABN AMRO Mtge. Group, Inc. v. Evans, 8th Dist. Cuyahoga No. 96120, 2011-Ohio-
5654, ¶ 6 (“While a Civ.R. 41(A)(1) voluntary dismissal generally divests a court of jurisdiction, a court
may still consider collateral issues not related to the merits of the action.”); State ex rel. Ahmed v. Costine,
100 Ohio St.3d 36 (2003) (“[t]rial courts may consider collateral issues like * * * sanctions despite a
dismissal[.]”); In re GTI Capital Holdings, LLC, 399 Fed.Appx. 236 (9th Cir.2010) (finding that
proceedings under the equivalent Federal Rule of Civil Procedure, 37(A)(5), “are collateral because they
aim to deter abuse of the judicial process and have no bearing, and therefore no res judicata effect, on the
case’s underlying merits.”). Second, not only is appellants’ interpretation legally inaccurate, but it would
also lead to troubling results. Under appellants’ interpretation, a litigant could commit any number of
discovery violations but as long as they dismissed their case before a trial court awarded attorney’s fees, the
litigant would escape sanctions.
7
  We also note that appellees filed a motion to have appellants’ appeal partially dismissed. That motion,
which was related to appellants’ first assignment of error, is rendered moot by our decision on this matter,
and we will not further address it.

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appellees did not provide sufficient expert testimony to justify the award of fees

and expenses, that appellants were only complying with a court order when they

filed their motion to compel, and that Civ.R. 37(A)(4) does not automatically

entitle the prevailing party to be awarded attorney’s fees.

       {¶44} Pursuant to Civ.R. 37, a party may move a trial court to compel an

uncooperative litigant to participate in discovery. Upon ruling on the motion to

compel, the trial court is generally “required” to award reasonable expenses

incurred, including attorney’s fees, to the prevailing party, whichever party that

may be. Stratman v. Sutantio, 10th Dist. Franklin No. 05AP-1260, 2006-Ohio-

4712, ¶ 29. Civil Rule 37(A)(4) establishes that if a motion to compel is denied,

attorney’s fees are granted to the prevailing party unless the moving party

establishes that its motion was substantially justified. The pertinent part of Civ.R.

37(A)(4) that is related to this action reads,

       If the motion [to compel] is denied, the court shall, after
       opportunity for hearing, require the moving party or the
       attorney advising the motion or both of them to pay to the party
       or deponent who opposed the motion the reasonable expenses
       incurred in opposing the motion, including attorney’s fees,
       unless the court finds that the making of the motion was
       substantially justified or that other circumstances make an
       award of expenses unjust.

Civ.R. 37(A)(4).

       {¶45} “The mandatory sanctions of Civ.R. 37(A)(4) [thus] grant a

substantial right to the party against whom the discovery process has been


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abused.” MaCarthy v. Dunfee, 19 Ohio App.3d 68, 70, (9th Dist.1984). Notably,

Civ.R. 37(A)(4) also places the burden on the party who lost the motion to compel

to show that the motion was “substantially justified.”

       {¶46} When a trial court elects to impose financial sanctions, including

those under Civ.R. 37(A)(4), we review the trial court’s decision under an abuse of

discretion standard. An abuse of discretion implies the trial court's decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

       {¶47} We will separately discuss below the trial court’s decision

determining that appellants’ motion to compel was not substantially justified for

purposes of Civ.R. 37(A)(4), and the trial court’s specific determination of the fees

and expenses awarded in this case.

       I.   Whether the trial court abused its discretion in determining
            that appellants’ motion to compel was not substantially
            justified for purposes of Civ.R. 37(A)(4).

       {¶48} In this case it was appellants’ burden at the hearing on Civ.R.

37(A)(4) sanctions to demonstrate that their motion to compel was “substantially

justified.” The trial court determined that the appellants did not meet that burden.

In its judgment entry on the matter, the trial court cited multiple reasons for

determining that appellants’ motion was not substantially justified. The trial court

conducted the following analysis in reaching that conclusion after citing the

relevant legal authority.

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       Plaintiffs did not become beneficiaries [of the trusts] until the
       death of Herval Thallman, on January 14, 2014.

            Further, Rule 26 of the Ohio Rules of Civil Procedure only
       allows discovery of relevant information. The Court has already
       found that it is undisputed that Plaintiffs did not make a request
       for information regarding the trusts at issue until after the death
       of Herval Thallman.

            Under the plain letter of the law, Defendants had no duty to
       provide information related to the trust to Plaintiffs prior to that
       date. Defendants had already properly responded to discovery.
       The motion to compel did not allege that Defendants had not
       properly responded to discovery, but rather, sought even more
       information. Plaintiffs’ motion to compel sought supplements to
       that discovery, ultimately requesting an order to compel
       information to which they were not entitled, and which was not
       relevant to the facts at issue before the Court.

(Doc. No. 89).

       {¶49} The trial court thus set forth its primary reasons for finding that the

appellants’ motion was not substantially justified: appellants were simply not

entitled to the supplemental information requested; notwithstanding whether

appellees had any duty to provide the supplemental information, appellees had

already properly responded to discovery; and the requested information was not

relevant to the specific issue before the court.

       {¶50} In reviewing the trial court’s decision, we do not find that appellants

have demonstrated through either factual or legal arguments that the trial court

abused its discretion in this case. This action began with appellants filing a

“Complaint for Accountings” of the Claudine Thallman and the Herval Thallman


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trusts. The record indicates that appellees provided the appellants with copious

amounts of information to establish a current accounting of the trusts after the

death of Herval Thallman in January of 2014 when appellants were entitled to a

distribution of the trust assets. In addition, the record indicates that the appellees

provided the appellants with access to tax returns from the years 2011-2014 and

access to the bank records from the institution that handled the trusts’ banking and

investing.

       {¶51} Appellants contend that based on R.C. 5808.13(C), they were entitled

to more information to satisfy the accounting, including information as to what

had been in the trust in the years prior to Herval’s death.           Revised Code

5808.13(C) requires trustees to

       send to the current beneficiaries, and to other beneficiaries who
       request it, at least annually and at the termination of the trust, a
       report of the trust property, liabilities, receipts, and
       disbursements, including the source and amount of the trustee’s
       compensation, a listing of the trust assets, and, if feasible, the
       trust assets’ respective market values.

Notably R.C. 5808.13 does not specify what is required for a “report” of the trust

property. However, the “official comment” R.C. 5808.13 sheds light on what is

required for a “report” or an “accounting” by a trustee. It specifically indicates

that

       [the code] employs the term “report” instead of “accounting” in
       order to negate any inference that the report must be prepared
       in any particular format or with a high degree of formality. The
       reporting requirement might even be satisfied by providing the

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        beneficiaries with copies of the trust’s income tax returns and
        monthly brokerage account statements if the information on
        those returns and statements is complete and sufficiently clear.

Official Comment to R.C. 5808.13.8 Based on what was required for a report,

what was delivered in discovery, and the releases granted to the appellants, we

cannot find that the trial court erred in determining that appellees had already

complied with discovery and that additional information was irrelevant to a

current report or “accounting” of the trusts.

        {¶52} Moreover, the trial court’s ruling that the additional information was

irrelevant seems particularly true in light of the fact that appellants did not allege

any type of fraud on behalf of the appellees in their complaint. The closest

appellants came in their complaint to alleging any type of fraud was to allege that

appellees did not act in good faith by failing to respond promptly to requests for

information regarding the trusts.9 Thus under these circumstances we cannot find

that the trial court abused its discretion in finding that the relevant documents were

provided and that additional documents—if they existed—were irrelevant to this

action. For these reasons alone we find that the trial court did not abuse its

discretion.



8
  We note that “[o]fficial comments are not enacted by the state legislature and do not have the effect of
law, but they do provide courts with ‘interpretive assistance.’ ” In re Fields, 351 B.R. 887, 892 (Bankr.
S.D. Ohio 2006), quoting, AGF, Inc. v. Great Lakes Heat Treating Co., 51 Ohio St.3d 177 (1990).
9
  While a review of the complaint makes clear that the appellants did not allege fraud, we would note that
to any extent any of the allegations appellants did make could be liberally construed as touching on fraud,
“fraud must be pled with particularity.” Messina v. Clawges, 8th Dist. Cuyahoga No. 93323, 2010-Ohio-
3311, ¶ 8. See also Civ.R. 9(B).

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Case No. 13-15-36


       {¶53} We note that the trial court found another reason to deny appellants’

motion to compel, which was that appellants were not entitled to the trusts’

financial documents for years prior to 2014 because they were not “beneficiaries”

at that time. The trial court specifically found that appellants “did not become

beneficiaries until the death of Herval Thallman, on January 14, 2014.” (Doc. No.

89).   Appellants contend that pursuant to R.C. 5808.13(C) both “current

beneficiaries” and “other beneficiaries” who request a report are entitled to them.

Appellants argue that they fell into the category of “other beneficiaries” contrary

to the trial court’s conclusions.

       {¶54} In analyzing the statutory definitions for “beneficiary,” “current

beneficiary,” and “qualified beneficiary” under R.C. 5801.01, there appears to be a

legitimate question as to just what status the appellants had prior to Herval

Thallman’s death. However, we do not need to reach a decision on this matter as

even if we assumed that appellants met the statutory definition for “other

beneficiaries” under R.C. 5808.13(C), the trial court’s decision denying

appellants’ motion to compel was supported on other grounds as previously stated.

       {¶55} Next, Appellants argue that the original trial court judge actually

ordered them to file a motion to compel so the second trial court judge could not

have found that the motion to compel was not substantially justified. Appellants

contend they were merely complying with a court order in filing the motion to

compel. Despite appellants’ arguments, it appears from the record that the trial

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court merely set a schedule following a case-management conference for the

appellants to file a motion to compel if they chose to do so. The original trial

judge explicitly stated as much in his judgment entry denying the motion to

compel, stating that it had “issued a briefing schedule” related to the motion.

(Doc. No. 48). Giving the appellants a deadline to file a motion to compel is

vastly different than explicitly ordering the appellants to file a motion to compel.

Thus appellants’ argument is not well-taken.

         {¶56} Appellants also contend that the second trial judge had “no personal

knowledge of the matter” when he was assigned to the case upon the first trial

judge’s recusal and that the second judge merely reiterated the first judge’s

findings.      However, the second trial judge’s judgment entry on the matter

affirmatively indicated that he reviewed the “record, exhibits, and arguments of

counsel” and he also presided over both of the hearings on Civ.R. 37(A)(4)

sanctions. Therefore appellants’ argument on this issue is similarly not well-

taken.

         {¶57} For all of these reasons we find that appellants’ arguments that the

trial court erred in determining that their motion was not substantially justified are

not well-taken.

         II.   Whether the trial court’s award of attorney’s fees and expenses
               pursuant to Civ.R. 37(A)(4) was supported by the record




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       {¶58} Appellants contend that even if the trial court properly found that

their motion to compel was not substantially justified, the award for attorney’s

fees was improper. Appellants specifically contend that the attorney called by the

appellees to establish the reasonableness of the fees did not adequately establish

that the fees were reasonable, that he was not an “expert” in trust law, and that the

trial court improperly limited appellants’ cross examination of appellees’ expert.

       {¶59} At the April 16, 2015, and May 6, 2015, hearings, the appellees

called a disinterested attorney, James S. Nordholdt, Jr., to testify as to attorney’s

fees in this case. Nordholdt testified that he had been an attorney for 41 years, that

he was a general practitioner, and that he had also been a prosecutor and a public

defender during his career. Nordholdt testified that he had been involved in

probate proceedings in the past. After providing his qualifications and allowing

appellants to cross-examine Nordholt regarding those qualifications, Nordholt was

then recognized as an expert under Evid.R. 702(B) for purposes of attorney’s fees

in the locality. Notably, appellants did not object when the trial court recognized

Nordholt as an expert, and contrary to appellants’ arguments, Nordholt was not

recognized as an expert in trust law.

       {¶60} Nordholt went on to testify that he spent “approximately two hours

with the court’s file,” and that he had “reviewed copies of motions.” (Apr. 16,

2015, Tr. at 60). Nordholt testified that he “did not read the content of every

motion” but he reviewed them “to get a sense of what was filed and what was

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Case No. 13-15-36


pertinent to litigation in this matter.” (Id.) After reviewing the record, Nordholt

testified that he was “satisfied” that he had “a general understanding of the

litigation in this particular case.” (Id.)

       {¶61} Nordholt also testified that he reviewed appellees’ attorney’s fees

related to the motion to compel. Nordholt testified that he “reviewed the invoices”

along with appellees’ attorney and actually deleted items on the bills that

“pertain[ed] to general trust administration rather than litigation.” (Apr. 16, 2015,

Tr. at 61).

       {¶62} Nordholt then testified as to the rates listed on the bills, indicating

that they were reasonable and customary for the area, and that “[t]he work

described appeared to be reasonable.” (Id. at 88). During Nordholt’s testimony,

appellants actually stipulated that the hourly rates were reasonable. (Id. at 93).

       {¶63} Nordholt testified that he did not specifically review the content of

the motion to compel, but rather “was looking at there was a Motion to compel

filed” and “whether or not the time spent to make that response and the action in

responding was reasonable.” (Id. at 90-91). Nordholt later specifically clarified

that he thought that the number of hours expended was reasonable, but he was not

offering any opinions as to the merits of the motion to compel or the response to it.

(Id. at 95).

       {¶64} Nordholt’s testimony continued into the second day of the hearing on

attorney’s fees, which was held weeks later. At the second hearing, Nordholt gave

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testimony regarding attorney’s fees incurred from the first hearing on fees, and he

testified that “the time spent on the described items appeared reasonable” and that

“the hourly rates * * * [were] reasonable.” (May 6, 2015, Tr. at 23). However,

Nordholt testified that he specifically did not examine the $1,275 in expenses

claimed by appellees so he had “no opinion regarding whether the expenses that

[we]re listed there were reasonable or necessary.” (Id. at 25). Exhibits detailing

the hours worked and the fees charged were introduced into evidence.           The

exhibits indicated that the $1,275 in expenses was for travel and accommodation

for one of the trustees flying to one of the hearings related to the motion to

compel.

      {¶65} After analyzing the matter in its judgment entry, the trial court

ultimately awarded $8,600.75 in attorney’s fees and expenses related to the motion

to compel and $1,275.00 as “travel expenses as a result of the motion to compel”

for a total award of $9,875.75. (Doc. No. 89).

      {¶66} On appeal appellants contend that Nordholt’s testimony was

insufficient to establish the award of attorney’s fees in this case. We disagree.

Nordholt gave clear testimony as to what his role was, his review of the

documents, and his opinion that the attorney’s fees presented were reasonable, that

the work was reasonable, and that the amount of time spent doing the work was

reasonable. Based on this testimony the trial court had ample evidence before it to

make the determination that the fees were reasonable and necessary. Therefore we

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cannot find that the trial court abused its discretion related to the fees actually

testified to by Nordholt.

       {¶67} However, notwithstanding his testimony related to attorney’s fees

and expenses, Nordholt did not offer any testimony as to the reasonableness of the

travel expenses asserted by the appellees, and, in fact, he specifically testified that

he did not review the expenses and had no opinion regarding them. Thus while we

cannot find that the trial court abused its discretion in finding that Nordholt’s

testimony was sufficient to support an award of the fees alleged, his testimony

could not support an award for the $1,275 in travel expenses.            As appellees

provided no other testimony related to the travel expenses, we find that the trial

court’s award of travel expenses was error in this case.

       {¶68} We note that appellants also contend that the trial court erred in

limiting their cross-examination of Nordholt during his voir dire and during the

cross-examination related to alleged frivolous conduct.         However, appellants

attempted to question Nordholt about things unrelated to his qualifications during

his voir dire, so we cannot find that the trial court erred in excluding questions

irrelevant to that issue at that time. As to limiting Nordholt’s cross-examination

related to alleged frivolous conduct, the trial court overruled appellees’ motion for

Civ.R. 11 sanctions and for frivolous conduct, denying appellees’ request for over

$30,000 in attorney’s fees for the entire litigation. Any limitations placed upon

the cross-examination related to this issue would not be relevant to this appeal as

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frivolous conduct is no longer an issue. Therefore we cannot find that the trial

court erred on this matter.

       {¶69} In sum, appellants have not met their burden to establish that the trial

court abused its discretion in determining that appellants’ motion to compel was

not substantially justified. We also find that the trial court’s award for attorney’s

fees was not an abuse of discretion; however, the award of $1,275 for travel

expenses was not supported by the record as there was absolutely no testimony

related to the travel expenses. Therefore appellants’ second assignment of error is

overruled in part and sustained in part.

       {¶70} For the foregoing reasons appellants’ first assignment of error is

deemed moot, their second assignment of error is overruled in part, and sustained

in part to the limited extent that the award for travel expenses is not supported by

the record.

                                                       Judgment Affirmed in Part,
                                                            Reversed in Part and
                                                                Cause Remanded

PRESTON and WILLAMOSKI, J.J., concur.

/jlr




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