[Cite as Borsellino v. Cramer, 2012-Ohio-164.]


          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 96893



                     CAROL BORSELLINO, ET AL.
                                                       PLAINTIFFS-APPELLANTS

                                                 vs.

                    SMYTHE CRAMER CO., ET AL.
                                                       DEFENDANTS-APPELLEES




                                          JUDGMENT:
                                           AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CV-720366


        BEFORE: Celebrezze, P.J., S. Gallagher, J., and E. Gallagher, J.

    RELEASED AND JOURNALIZED:                             January 19, 2012
ATTORNEYS FOR APPELLANTS
Brendan Delay
24500 Center Ridge Road
Suite 175
Westlake, Ohio 44145
Nate N. Malek
Law Office of Nate N. Malek, L.L.C.
29025 Bolingbrook Road
Cleveland, Ohio 44124

ATTORNEYS FOR APPELLEES
For Smythe Cramer Co., et al.
Brian D. Sullivan
George S. Coakley
Cynthia A. Lammert
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115-1093

For Mark and Monica Small
David Honig
James D. Ludwig
Cleveland Construction, Inc.
5390 Courseview Drive
Mason, Ohio 45040

For Nancy Calabrese
David J. Richard, Jr.
Dworken & Bernstein Co., L.P.A.
60 South Park Place
Painesville, Ohio 44077

For Diane Greene, et al.
Joseph T. Burke
Polito, Paulozzi, Rodstrom & Burke, L.L.P.
21300 Lorain Road
Fairview Park, Ohio 44126
FRANK D. CELEBREZZE, JR., P.J.:
      {¶ 1} Appellants, Dr. Samuel and Carol Borsellino, seek reversal of an

award of attorney fees of $2,000 in favor of appellees, Smythe Cramer Co.

(d.b.a. Howard Hanna Co.), Dottie and Peter Brooks, and Barristers of Ohio,

L.L.C., (collectively, the “Agents”); and $943.46 in favor of Mark and Monica

Smalls (collectively, the “Sellers”).   The fees were awarded as a discovery

sanction for Dr. Borsellino’s failure to appear at a scheduled deposition. The

Borsellinos now argue that the trial court erred in awarding attorney fees as

a sanction and take issue with the amount of those fees. After a thorough

review of the record and case law, we affirm.

                   I.   Factual and Procedural History

      {¶ 2} The Borsellinos filed suit against appellees and others on March 5,

2010, for claims arising from the sale of residential property. One law firm

represented the Agents.     On May 27, 2010, counsel for the Agents sent

correspondence to the Borsellinos’ attorneys asking for mutually agreeable

dates on any work day during two weeks in June to conduct the depositions of

Dr. Samuel and Carol Borsellino.        This correspondence went unanswered.

As a result, the Agents’ counsel again sent a letter to the Borsellinos’

attorneys on June 14, 2010, requesting agreeable deposition dates and

proposing June 25, 28, 29, or July 7 through 9 as possibilities.         After

receiving no response, on June 18, 2010, counsel for the Agents sent notice to

the Borsellinos to appear for depositions on June 28, 2010.
      {¶ 3} The same day the notice was received, the Borsellinos’ attorneys

canceled the depositions due to scheduling conflicts of the attorneys and

advised that alternate dates would be provided.        By June 29, 2010, the

Agents’ counsel had received no dates from the Borsellinos and again sent a

letter asking that the depositions be scheduled on one of eight suggested

dates in July.   No response to this letter was received, and the Agents’

counsel then sent an email on July 16, 2010, requesting deposition dates in

July or August. After no dates were forwarded by the Borsellinos, on July

20, 2010, the Agents’ counsel again sent notice to the Borsellinos to appear for

depositions on August 17, 2010, and indicated the date would not be changed.

 The day before the scheduled depositions, the Borsellinos’ attorneys

attempted to cancel Dr. Borsellino’s deposition. The Agents’ counsel refused

to acquiesce, and Carol’s deposition proceeded, but Dr. Borsellino failed to

appear.

      {¶ 4} On August 26, 2010, appellees filed a joint motion for sanctions

seeking $3,892.50 in costs for the Agents and $943.46 in costs for the Sellers.

The trial court granted appellees’ motion on March 23, 2011, and awarded

$2,000 and $943.46, respectively. The Borsellinos then dismissed their case

without prejudice and filed both an appeal and a Civ.R. 60(B) motion for relief

from judgment. The appeal was dismissed by this court as untimely. The
Borsellinos filed the instant appeal from the trial court’s denial of their Civ.R.

60(B) motion raising two errors.1

                                   II.   Law and Analysis

           A.   Civ.R. 60(B) Is Not a Substitute For a Timely Appeal

       {¶ 5} Here, the Borsellinos attempt to appeal from an order denying

their motion for relief from judgment, and not from the order granting

sanctions in favor of appellees. This is because their notice of appeal from

the journal entry ordering sanctions was not timely filed and was dismissed

by this court. “However, it has long been established that a Civ.R. 60(B)

motion for relief from judgment may not be used as a substitute for a timely

appeal.” Roberts v. Roberson, 8th Dist. App. No. 92141, 2009-Ohio-481, 2009

WL 279809, ¶ 17.             This holding flows from the Ohio Supreme Court’s

decision in Doe v. Trumbull Cty. Children Serv. Bd., 28 Ohio St.3d 128, 131,

502 N.E.2d 605 (1986). There, a party attempted to revive litigation after a

final judgment was issued from which a direct appeal was not taken. After a

perceived change in controlling case law, the party filed a Civ.R. 60(B)

motion. The Ohio Supreme Court not only held that subsequent changes in



          The Borsellinos’ two assignments of error state: “The trial court erred when it failed to
       1


find that [Dr. Borsellino’s] failure to attend the deposition was substantially justified, or that the
circumstances made the award of attorney’s fees unjust”; and even if the sanction was justified, “[t]he
trial court erred when it awarded attorney’s fees to the [appellees] without competent credible
evidence as to how those fees were incurred.”
controlling case law in unrelated matters are not proper grounds for relief

from judgment, but also that “[a] party may not use a Civ.R. 60(B) motion as

a substitute for a timely appeal.” Id. at paragraph two of the syllabus.

        {¶ 6} The Borsellinos are attempting to appeal alleged legal errors made

by the trial court when it granted sanctions as a substitute for their

dismissed appeal. This is improper.

            B.    Award of Attorney Fees as Discovery Sanctions

        {¶ 7} Even if this appeal were proper, the Borsellinos fail to argue how

they satisfy any of the required elements of Civ.R. 60(B) necessary to show

that the trial court abused its discretion in denying their motion. In fact, the

Borsellinos’ brief fails to even mention Civ.R. 60(B). Both parties, as if the

prior appeal was never dismissed, cite to Civ.R. 37(D) as governing law in this

case controlling the standard of review. However, the proper standard the

Borsellinos must meet is that which applies to an appeal from the denial of a

Civ.R. 60(B) motion. The Borsellinos must successfully argue that the trial

court    abused    its   discretion   in   denying   their   motion   because   they

demonstrated (1) that they possess a meritorious defense or claim to present

if relief is granted; (2) they are entitled to relief under the provision argued in

their motion, Civ.R. 60(B)(5); and (3) their motion was made within a

reasonable time. GTE Automatic Elec. v. ARC Indus., 47 Ohio St.2d 146, 351

N.E.2d 113 (1976), paragraph two of the syllabus.
      {¶ 8} The Borsellinos’ brief does not sufficiently identify a meritorious

claim or defense or otherwise identify how it satisfied these requirements

based on evidence in the record. The arguments attempting to show how the

trial court abused its discretion in granting sanctions under Civ.R. 37(D) are

unavailing.

      {¶ 9} Civ.R. 37(D) provides for attorney fees as a sanction, stating:

      If a party * * * fails (1) to appear before the officer who is to take
      his deposition, after being served with a proper notice[,]* * * the
      court shall require the party failing to act or the attorney
      advising him or both to pay the reasonable expenses, including
      attorney’s fees, caused by the failure, unless the court expressly
      finds that the failure was substantially justified or that other
      circumstances make an award of expenses unjust.

      {¶ 10} The Borsellinos argue that Samuel’s failure to appear was

justified because he is a neurosurgeon and his workload prevented him from

attending the deposition. However, he did not apply for a protective order or

otherwise make a record for this court that his schedule prevented his

deposition from going forward. When parties cannot attend their scheduled

deposition, it is not enough to send a message to opposing counsel the day

before it is to begin. See Dafco, Inc. v. Reynolds, 9 Ohio App.3d 4, 5, 457

N.E.2d 916 (10th Dist.1983), citing Al Barnett & Son, Inc. v. Outboard Marine

Corp., 611 F.2d 32 (3d Cir.1979).      “The method for obtaining an advance

court determination to avoid the imposition of immediate sanctions is to move
for a protective order, pursuant to Civ.R. 26(C), before the time for

compliance occurs.” Id.

        {¶ 11} Nothing in the record, apart from a statement that Dr. Borsellino

is one of only 3,600 neurosurgeons in the country and was working that day,

demonstrates why his deposition should not have gone forward on August 17,

2010.    It had been scheduled for some time, and the Borsellinos took no

action until the day before the deposition was to go forth. This was also the

second time the deposition had been attempted after the Agents’ counsel had

made ample efforts to secure an agreeable date.            The Borsellinos had

abundant opportunity to suggest agreeable dates and had a significant period

of time within which to move for a protective order. They did neither. The

trial court did not abuse its discretion in denying the Borsellinos’ Civ.R. 60(B)

motion. They failed to show a meritorious claim or defense — a necessary

element of such a motion.

                               III.   Conclusion

        {¶ 12} An appeal from a Civ.R. 60(B) motion for relief from judgment

should not be used as a substitute for a timely filed direct appeal.         The

Borsellinos’ failure to even mention Civ.R. 60(B) in their brief in light of their

prior untimely appeal indicates that is precisely their intent. But, even if it

was not, the Borsellinos fail to point to evidence in the record indicating that

Dr. Borsellino was justified in not attending his properly scheduled
deposition. Therefore, the trial court did not abuse its discretion in denying

their motion for relief from judgment.

                                                           Judgment affirmed.

      It is ordered that appellees recover from appellants costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
